Earringhouse ImportsDownload PDFNational Labor Relations Board - Board DecisionsJan 17, 1977227 N.L.R.B. 1107 (N.L.R.B. 1977) Copy Citation EARRINGHOUSE IMPORTS 1107 E. H., Limited, d/b/a Earringhouse Imports and Service Employees International Union , Local 250, AFL-CIO. Case 20-CA-9447 January 17, 1977 DECISION AND ORDER On April 3, 1975, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed with the Board its brief to the Administrative Law Judge in support of his Decision.' The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge but only to the extent consistent with its decision. The principal issue in this case is whether the Respondent violated Section 8(a)(1), (3), and (4) of the Act in discharging 13 employees for attending a Board representation hearing during their working hours, when the Respondent had specifically told the employees they could not take time off for such purpose. The Administrative Law Judge concluded there were no such violations. We are of the opinion, however, that the discharges were unlawful. 1. THE FACTS The Respondent, a dealer in earrings and other jewelry, maintains a warehouse from which it con- ducts its wholesale business. On or about July 10, 1974, the Union began organizing the warehouse employees, and the parties stipulated that all such employees, with certain exclusions, constitute an appropriate unit. On July 11, there were on the warehouse payroll 27 persons including both unit and nonunit employees (the record does not indicate the exact number in each group). On July 10 the Union received from unit-included warehouse employees eight signed authorization cards; the following day six more unit employees signed such cards; on July 16 five more signed; and on July 26 another signed. The validity of the cards is not questioned. Consequently, it appears from the foregoing that on and after July 11 a majority of employees in the stipulated unit had i On May 22, 1975, the Charging Party filed a motion to strike the Respondent 's brief to the Administrative Law Judge , essentially on the ground that it lacked the required specificity . The Respondent filed an answer in opposition and the Charging Party then filed a memorandum in reply to the Respondent's answer . The Charging Party's motion is hereby denied as lacking in merit 2 About this time , the Respondent posted four "long established" rules against solicitation and distribution proscribing ( 1) solicitation by employees during working time, (2) solicitation by employees on company premises after their shift's end, (3) distribution of literature of any type during working 227 NLRB No. 118 signed valid cards authorizing the Union to represent them. By letter dated July 11 and received by the Respondent on July 15 the Union demanded recogni- tion. Also on July 15 the Union filed a representation petition with this Board seeking an election among employees in the stipulated unit. The following day the Respondent's president telephoned the Union about the claim for recognition and a meeting was arranged for July 17. At the meeting, the Union reiterated its claim of majority representation and in reply to a question by Respondent's president sug- gested several methods for third-party resolution of that claim. Respondent stated it would let the Union know its position; the meeting broke up. However, the Respondent did not thereafter inform the Union concerning its position with respect to resolving the matter of recognition. Subsequently, according to the testimony of Nancy Pellerito, a corporate officer, the following occurred. On July 29, she told the assembled warehouse employees that she was aware of the Union's activi- ties, asked them if they were sure the Union was the right union for them, and added that she welcomed the employees' presenting their problems to her. She also told them a hearing was scheduled and in reply to their question stated she did not know if they should go. She conceded she overheard them discuss- ing carpools with respect to attending but said nothing.2 Then, on August 2-still according to her testimony-Pellerito held a second meeting with the employees at which she told them that she had learned from counsel it was not necessary that all the employees attend the hearing and in consequence stop production, and as she preferred to keep the business running, they were not to go to the hearing. Several employees remonstrated that as the hearing concerned them they wanted to go. On August 6- still following Pellerito's version of what occurred- she held a third meeting, assertedly at the request of the employees who wanted to ask her again if they could go en masse to the hearing. She stated her position was unchanged and that they could not go as she "wanted production to continue and the business to go on ...." Again the employees objected because, as they said, the hearing concerned them.3 The hearing was set for August 8. The previous day at 3 p.m., Pellerito assembled the employees and, time, and (4) distribution of literature in working areas . All four rules were alleged to be unlawful; the Administrative Law Judge concluded that only the second rule violated the Act. Chairman Murphy and Members Penello and Walther agree with his fmdmgs. Members Fanning and Jenkins would in addition find rules 1 and 3 invalid for the reasons stated in their dissenting opinion in Essex International, Inc, 211 NLRB 749 (1974); while Member Fanning for reasons stated in his dissenting opinion in Stoddard-Quirk Manufacturing, Co., 138 NLRB 615 (1962), would also find rule 4 invalid 3 Certain employees testified that Pellerito held a meeting of the unit employees on August I at which she told the employees that a hearing on the (Continued) 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reading from a statement, informed them that the Respondent would not allow them to attend the hearing but they could select one representative to attend and had 5 minutes to do so. According to employee Ball's essentially uncontradicted testimony, the following took place between her and Pellerito at that time: I asked her where the notice come from, and she said she can't tell me that. I asked her where it was backed up that she had the right to threaten our jobs for going to a public hearing and she said she couldn't answer that. I said that we wanted to go talk about our own jobs, to give testimony for our job description.4 She said that wouldn't be neces- sary . . . we said to her that it was a public hearing, that we would make up the time if necessary, and she said we wouldn't be able to do that ....5 And then as she was leaving, we all were talking a few minutes and she said everyone to go back to your work please, you can't talk now. Pellerito did, at Ball 's request, give the employees until the following morning to select a representative to go to the hearing for them. However, sometime later that day one of the employees contacted the union agent about this latest development. He told her that it was probably too late to subpena the employees, that their testimony might prove neces- sary, and that, in any event, the Act protected their right to attend. That evening they unanimously voted to attend the hearing. On August 8, the employees signed in on time. Then, after notifying their superior that they were going to attend the hearing, 13 of them signed out at 9:25 a.m. All did attend the hearing where, upon consultation with union counsel, they were told they need not testify in light of the morning's testimony. However, several of them did relay a few comments to counsel concerning that testimony. At 1 p.m. they signed back in again at the warehouse. Then some 2 hours later Pellerito called the 13 together and in the Union's petition was scheduled for August 5, that attendance at the heanng would give the employees an opportunity to learn about the Union , and that she would close down the warehouse and arrange carpools if they decided to go Pellerito denied that there was an August I meeting or that she had ever made the statements attributed to her at that alleged meeting The Administrative Law Judge did not resolve the conflict between the employ- ees' and Pellento's testimony, stating only that the employees and Pellento testified generally in the "same manner " with, however, "some discrepancies and contradictions " For purposes of our decision here we accept Pellento's version of the events j ust descnbed . We note, however, that crediting of the employees ' version would not require a different result from that we reach below but , on the contrary, would provide additional support for such result 4 Pellento did deny that the employees stated they wanted to attend the heanng to talk aboutjobs. 5 Pellento in explaining her summary rejection of the offer to make up lost time stated "We didn't have overtime and that it just couldn't be done and I refused " Ball was not, of course , proposing that the employees work "overtime " presence of 8 armed security guards told them they were discharged immediately for "disobeying yester- day's orders." During the period that the 13 absented themselves to attend the hearing, work in the ware- house virtually stopped, even though 3 employees did not leave at that time. There is some evidence in the record, which is, however, of small consequence, of some minor, rather ill-defined economic loss to the Respondent resulting from the employee's having attended the hearing. II. THE 8(a)(4) AND (1) VIOLATIONS The Administrative Law Judge, as indicated above, found the discharges of the 13 warehouse employees not unlawful. However, there can be little question but that an employee has a right protected by Section 8(a)(4) and (1) to attend a Board hearing or otherwise participate in various stages of the Board's process- es.6 A discharge for such attendance or participation is without question unlawful, and our dissenting colleagues do not, as we understand their position, suggest otherwise. A problem arises in this case because the issue does not simply involve the protect- ed status of attendance at a Board hearing-which, as we have just said, is clear-but rather involves such attendance during normal working hours and in defiance of an explicit company prohibition against leaving work at such time. Consequently, the resolu- tion of the dispute before us requires the making of a proper accommodation between an employee's right to attend a hearing during working hours and an employer's legitimate interest in operating his busi- ness without disruption. We are not, however, faced, as the Administrative Law Judge seemed to believe, with deciding if employees have an unbridled right to "strip management of every vestige of control" by participating in any of our processes. In our view, under a proper construction of Section 8(a)(4) an employee may not lawfully be discharged after participation in any Board proceeding during his regular working hours (a) where an employer can establish no business necessity justifying a require- s The Administrative Law Judge concluded that the employees were mere spectators at the heanng and thus that their activity did not bung them stnctly within the language of Sec 8(a)(4) of the Act. To be sure, none of the employees were called as witnesses and thus did not "give testimony under the Act." But their failure to testify does not take them outside the protection of Sec 8(a)(4). See N LR B v Robert Scrivener, d/b/aAA Electric Co, 405 U S 117 (1972), Fuqua Homes (Ohio), Inc, 211 NLRB 399 (1974) Furthermore , the employees were literally something more than just spectators in that they did make several comments and pass a couple of notes to union counsel presumably concerning matters raised at the heanng. But of more moment is the fact that the employees ' on-the -job interests were immediately involved in the heanng As the employees concededly told Pellento, the heanng concerned them and they attended for the purpose of protecting their own interests , if necessary , and in such manner as might be appropriate They clearly were not just spectators whose only interest was curiosity EARRINGHOUSE IMPORTS 1109 ment that the employee stay on the job or (b) where a business justification is established but which in the particular circumstances is not on balance sufficient to overcome the employee's assertion of his right to attend or participate. In the present case the Respon- dent has failed to establish either that any valid reasons existed on or about August 8 to support legitimate fears on its part that the employees' absence would cause any consequential business or economic loss or that their absence did in fact cause such loss as is shown by the following: First, even accepting Pellerito's own testimony, as outlined above, there is no evidence that she ever told the employees or otherwise claimed that fear of serious business or economic consequences lay be- hind her forbidding the employees to leave work so they could attend the hearing. All she stated was that she "wanted production to continue and the business to go on," a position also taken in substance on August 2, 6, and 7. Second, her conduct was largely inconsistent with any conclusion that she was truly concerned about lost production or other business disruption. On August 6, she rejected without serious consideration, and as indicated above on rather irrelevant grounds, the employees' offer to make up any time lost through their attendance at the hearing. If indeed she were dealing in good faith with the employees concerning the restriction for production reasons on their leaving work, it is reasonable to conclude she would have given serious consideration to the makeup-time proposal which at least on its face would appear to hold out considerable promise of realizing the stated goals of both management and the employees with a minimum of discomfiture to each. Nevertheless, as stated, Pellerito summarily dismissed this promising compromise. Third, Pellerito's discharge of the employees at 3 p.m., that is 2 hours before their regular quitting time and when insofar as the record shows she had no replacements, is also inconsistent with her professed concern about maintaining production. In fact, if, as the Respondent claims, the employees' absence to attend the hearing resulted in a cessation of ware- house operations, their discharge must have had the same effect. Surely, if Pellerito were truly concerned r The Administrative Law Judge in his Decision in effect concedes the evidence does not show the extent of economic loss , if any, but states it is the principle that is important Thereupon he concludes that as practically the whole department left there must have been a substantial loss Yet the fact remains that the record does not show Respondent suffered any consequen- tial loss as a result of the employees ' attending the hearing S In addition to showing that no business necessities existed justifying Respondent 's attempt to prevent employees from leaving work to attend the hearing, the facts also strongly suggest that the proffered economic justification for its conduct was mere pretext and that Respondent's actions were largely if not wholly motivated by an intent to interfere with employee conduct in support of their Union and its quest for recognition about production she would have delayed the dis- charges at least until the end of the working day. In any event it is certain from the foregoing that Pellerito's order that the employees stay on the job was not occasioned by legitimate realistic fears concerning any possible adverse consequential im- pact their absence might have on production. Fur- thermore, the Respondent has failed almost totally to show that the employees' absence had in fact any such consequence. Essentially all we have in this regard is suggestion and supposition, which is obvi- ously an insufficient basis on which to predicate any conclusion that business or economic hardship or loss was a direct consequence of the employees' leaving work.? In conclusion, we find that the Respondent has failed to establish any business or economic justifica- tion for forbidding the employees to attend the representation hearing.8 Consequently, we find that the Respondent's ordering them not to leave work in order to attend was unwarranted and that its dis- charging them for disregarding that order violated Section 8(a)(4) and (1) of the Act.9 Our dissenting colleagues apparently agree with us that employees have a protected statutory right to attend a Board hearing during working hours and that the Respondent has failed to produce any real evidence that it suffered any consequential business loss as a result of its employees' leaving work to attend the hearing. However, in making an accom- modation between the employees' right to attend and the Respondent's legitimate interest in operating its business without unnecessary disruption, the minori- ty holds that the employees must demonstrate that "compelling reasons" exist urging their attendance at a hearing during working hours if their leaving work for such purpose, especially in the face of their employer's contrary orders, is to come within the protection of the Act. As, according to the dissenters, no such compelling reasons were shown to exist, the employees here were not justified in leaving work and, consequently, their subsequent discharges were, as the Administrative Law Judge concluded, not unlawful. We readily agree that there were no terribly important reasons or exigencies crying out for em- 9 The General Counsel also alleges that the employees were engaged in protected concerted activity in joining together to attend the hearing and, thus, that their discharge for engaging in such conduct violated Sec 8(a)(3) of the Act Clearly the employees were engaged in a concerted activity concerning a matter affecting their terms and conditions of employment However, in view of our findings above we need not decide whether, in the circumstances here , Respondent's discharge of the 13 employees violated Sec 8(a)(3) as well as Sec 8 (a)(4) and (1) of the Act Furthermore , we believe it important to stress that our decision here protecting the right of employees to attend Board hearings does not rest at all upon whether that right is exercised alone or in concert 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee attendance at the hearing. At least as things turned out that seems to have been the case. Yet as our position stated above should make clear, we believe our dissenting colleagues have the priorities reversed. Initially, under their view we are faced with the rather anomalous situation that every party to a Board hearing, except the involved employees them- selves, would have a right without showing any "compelling reasons" to require the employees' attendance at the hearing. Thus, the General Counsel in an unfair labor practice case, a participating union, and an employer, in either such a case or a represen- tation matter, could all subpena employees without demonstrating compelling reasons,10 and an employ- er in any situation can always release employees for attendance if it should serve his purposes to do so. Consequently, under the dissenting view, the right of the employees to attend would seem to reside with everyone involved except the employees themselves. Next, the minority's evident restriction on the employees' right of attendance is, in our view, contrary to developing court and Board law extend- ing the statutory protection given to participants in Board processes. Such a course has been followed both for the purpose of protecting the Board's sources of information in order to facilitate its effective administration of the Act and for the purpose of assuring employees protected access to the Board in order that they may safely seek a proper vindication of their statutory rights.ti Our dissenting colleagues' position would, if it were to prevail, undermine both of these objectives. Finally, we consider it anomalous to require the possessor of a right to come forward with "compel- ling reasons" to justify the exercise of the right. We would have thought that the possession of the right is itself the justification for engaging in the conduct protected by the right, at least in the absence of serious extenuating circumstances. The Supreme Court has stated in effect, though in a context different from that here before us, that where an employer's conduct interferes with employees' rights-and no explicit discriminatory motive is shown-the burden is nevertheless on the employer to come forward with evidence of "legitimate and substantial business justification" for its conduct if it is not to be found to have violated the Act.12 And so it is here that the burden should not be, as the dissent would have it, on the employees to come forward 10 The Administrative Law Judge in support of his result refers to the fact that the employees in the present proceeding had not been subpenaed to attend the hearing But as the Supreme Court concluded in NLR B v Scrivener, supra at 124, the existence of a subpena provides "no basis for denying similar protection to the voluntary participant "The relevance here of a subpena is that a subpenaed employee must appear even in the face of an established business justification , otherwise necessitating and justifyin keeping the employee on the Job See Newland Knitting Mills , 165 NLRB 788, fn 2I (1967), and accompanying text with evidence of "compelling circumstances" to justify their exercise of their right to attend a Board hearing but rather the burden should be on the employer to justify interfering with the exercise of that right. Our colleagues assert that the employees here were discharged, not "because they attended a Board hearing," but "for leaving work contrary to express orders not to do so." The distinction is without substance here, because the Respondent knew the employees proposed to leave work in order to attend the hearing; the two cannot be separated unless the Respondent can justify its prohibition by business reasons apart from the Board proceeding, which it has not done. An employer by ordering its employees not to strike, cannot thereby convert the subsequent discharges of strikers into "insubordination" dis- charges. The employees here were engaged in protect- ed activity, and an employer's interference with it requires more justification than his preference or inconsequential inconvenience. In short, our dissenting colleagues have, in our view, misplaced the burden of establishing justifica- tion. Consequently, we conclude that their position is untenable and their support for the Administrative Law Judge's Decision mistaken. As we held above, the Respondent has come forward with no "legiti- mate and substantial business justification" for ordering the employees to stay on the job rather than attend the hearing, and consequently, their discharge for ignoring that order violated Section 8(a)(4) and (1) of the Act. III. THE ALLEGED 8(a)(5) VIOLATION AND THE APPROPRIATENESS OF A REMEDIAL BARGAINING ORDER The complaint alleges that the Respondent has in and after "mid-July 1974" refused to bargain with the Union, and that such refusal violated Section 8(a)(5) and (1) of the Act. Further, in his brief the General Counsel seeks a bargaining order as remedial relief on the ground that it is necessary and proper as part of the remedy for the Respondent's violations of Section 8(a)(1) and 8(a)(4). As noted the parties have stipulated, and we find, that the following employees of the Respondent constitute a unit appropriate for purposes of collec- tive bargaining: All warehouse employees employed by the Respondent at its San Francisco, California, 11 See, for example , N.LR.B v. Scrivener, supra, General Nutrition Center, Inc, 221 NLRB 850 (1975); and N LR B v Southland Paint Company, Inc, 394 F 2d 717 (C.A. 5, 1968), where the court stated in an 8(a)(1) context that "among the rights protected from management interference is the right to have the privileges secured by the Act vindicated through the administrative procedures of the Board. ." 12 NLR B v Great Dane Trailers, Inc., 388 U S 26, 33-34 (1967) EARRINGHOUSE IMPORTS 1111 distribution center, excluding office clerical employ- ees, guards, and supervisors as defined in the Act. We also find that as of July 11, 1974, the Union had received from a majority of employees in the appro- priate unit signed valid authorization cards designat- ing it their bargaining representative. Further we find that on July 15, 1974, the Union demanded that the Respondent recognize it as the employees' duly selected bargaining representative and that such demand, as the facts fully show, was of a continuing nature. It also appears, and we find, that at all times relevant the Respondent has failed or refused to recognize the Union as the employees' bargaining representative. Finally as we have found above, the Respondent on or about August 1 and on August 8, 1974, engaged in unfair labor practices, the latter mass discharges being of an especially egregious nature, which undermined the Union's majority status and thus prevented the holding of a fair election. In these circumstances we find that a bargaining order is necessary to remedy Respon- dent's unlawful conduct, and that, further, Respon- dent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union on or about August 1, 1974 (and thereafter), the date Respondent embarked on its course of conduct undermining and dissipating the Union's majority status.13 CONCLUSIONS OF LAW 1. E. H., Limited, d/b/a Earringhouse Imports, is, and at all times material herein has been, an employer engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 250, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By promulgating a rule prohibiting employees from soliciting on company premises after their shifts' end, Respondent violated Section 8(a)(1) of the Act. 4. By discharging employees for disobeying an order not to attend during working hours a Board representation hearing concerning the possible repre- sentation of those employees by the Charging Party, the Respondent violated Section 8(a)(4) and (1) of the Act. 5. By failing and refusing to recognize the Union as the bargaining representative of employees in the 13 Trading Port, Inc, 219 NLRB 298 (1975). Inasmuch as the bargaining order specified in the Decision remedies all of the misconduct committed by the Respondent , Member Jenkins joins in dating the bargaining obligation from that time . Member Fanning would find that the unlawful refusal to bargain commenced on July 15, 1974, the date of the Union's demand for recognition In his view under N L R B v Gissel Packing Company, Inc., 395 U.S. (1969), a union may establish its exclusive representation status through appropriate unit while engaging in serious conse- quential unfair labor practices undermining, if not destroying, the Union's majority status, the Respon- dent has as of on or about August 1, 1974, violated Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, certain unfair labor practices, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. As we have found that the Respondent unlawfully discharged Debbie Duncan, Donna Leon, Dawn Brunet , Gail Golden, Jenny King, Jackie Griffin, Pat Berry, Sharon Fisher, Wendy Ball, Laureen Buzcek, Tina Casas , Bonnie Podell, and Rose Goldman, we shall order that it offer each of them immediate and full reinstatement to their former jobs, or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. We shall also order that the Respondent make the discriminatees whole for any loss of earnings suffered as a consequence of their illegal discharges in the manner provided in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As we have further found that the Respondent's conduct violated Section 8(a)(5) of the Act and rendered the holding of a fair election impossible, we shall order that it recognize and bargain with the Union as the collective-bargaining representatives of the employees in the appropriate unit. Finally, in view of the egregious nature of the Respondent's unfair labor practices, we find that a broad cease-and-desist order is necessary and appro- priate. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, E. H., Limited, d/b/a Earringhouse Imports, San Francisco, California, its officers, agents, successors, and assigns, shall: authorization cards signed by a majority of unit employees, where, as here, their employer makes the holding of a fair election improbable as a consequence of its unfair labor practice . In such cases , the employer's refusal to recognize the union 's exclusive representative status violates Sec 8 (a)(5) as the Court held in Gissel, and the violation dates from the initial refusal of the demand, which is but the first step in the course of unlawful conduct Member Jenkins sees no need to reach this issue in this case 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Promulgating or maintaining a rule prohibiting employees from engaging in solicitation on company premises after their shifts have ended. (b) Discharging employees for leaving work during working hours for the purposes of attending a Board hearing affecting their terms and conditions of employment where overriding serious business con- siderations do not justify refusing to permit employ- ees leaving work for such purpose. (c) Refusing to recognize and to bargain with the Union as the representative of the employees in the appropriate unit which is: All warehouse employees at the Respondent's San Francisco, California, distribution center, exclud- ing office clerical employees, guards, and supervi- sors as defined in the Act. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Debbie Duncan, Donna Leon, Dawn Brunet, Gail Golden, Jenny King, Jackie Gnffin, Pat Berry, Sharon Fisher, Wendy Ball, Laureen Buzcek, Tina Casas, Bonnie Podell, and Rose Goldman immediate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges or working conditions, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, such backpay to be determined in the manner set forth in the section of this Decision entitled "The Remedy." (b) Upon request, recognize and bargain with Service Employees International Union, Local 250, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit described above with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its San Francisco, California, distribu- tion center copies of the attached notice marked 14 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent's represen- tative, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS PENELLO AND WALTHER, dissenting: We agree with the Administrative Law Judge that Respondent did not violate the Act by discharging 13 employees for attending a Board representation hearing during working hours, where Respondent specifically told them that they could not take time off for such purpose. Both Board precedent and sound policy support this result. We agree with our colleagues on the majority that employee attendance at a Board hearing is a form of protected activity. It is equally beyond question that, although an activity may be protected, it does not necessarily follow that employees can engage in that activity during their working time.15 Thus, a salient aspect of this case-indeed the one that quite obviously gave rise to the whole dispute-is the fact that the employees insisted on attending a Board hearing during working hours and did so in the face of Respondent's explicit prohibition against their leaving work. Consequently, and as the majority has stated, the issue before us "requires the making of a proper accommodation between an employee's right to attend a hearing during working hours and an employer's legitimate interest in operating his busi- ness without disruption." However, we cannot accept the majority's result that employees are free to leave work to attend a hearing unless their employer can demonstrate substantial business reasons for forbid- ding them to leave work for such purpose. We are of the opinion that unless the employees can demon- strate substantial reasons for attending a Board hearing, unless there are compelling reasons urging their attendance, the employer's right to maintain normal operations should, and does, take precedence over the employee's right to leave work during regular working hours for such attendance or for any other purpose except that of legitimate strike activity. The 15 Stoddard-Quirk Manufacturing Co, supra, fn 2, forbidding union solicitation during working time EARRINGHOUSE IMPORTS overall effect of the majority's position would be that employees could unilaterally determine, at least to some extent, their own hours of work. As stated above, the Administrative Law Judge found the discharge of the 13 employees not unlaw- ful. He rested his conclusion on a number of factors and cited the Board's decision in Standard Packaging Company 16 in support of his result. What he found, or at least what we believe to be the proper basis for his result here, is that no compelling reasons were presented to the Respondent or produced at the hearing in this proceeding to justify the employees' leaving their jobs to go to the hearing, contrary to their employer's specific instructions not to leave the warehouse. The Administrative Law Judge also adverted to the fact, held relevant in Standard Packaging Company, that the employees had not been subpenaed to attend the hearing. There are strong reasons for finding that the employees' attendance here was not in any realistic sense at all necessary. In the first place, the employees were not subpenaed and thus were under no legal obligation to attend. The majority notes that in Scrivener 17 the Supreme Court concluded that the existence of a subpena provides "no basis for denying similar protection to the voluntary participant." 18 In Scrivener, the employees were discharged for giving information to a Board agent and the Court held in effect that a discharge for such a reason was unlawful whether or not the employees had been subpenaed to require their cooperation. If in the present case the employees had been discharged because they attend- ed the Board hearing (either during or outside working hours), such discharges would have been clearly unlawful irrespective of whether the employ- ees had been subpenaed or not. We would not have needed a citation from Scrivener to remind us of that fact. However, as we have emphasized, the employees in the present case were discharged for leaving work contrary to express orders not to do so, rather than for going to the hearing. Such defiance of manage- ment is warranted, we are holding here and the Board has held in Standard Packaging Company, only if there is a compelling reason justifying such defiance. An outstanding subpena requiring attendance at a hearing would be, almost literally, such a compelling reason. 19 Consequently, the existence or nonexistence of a subpena in cases such as the present one is a highly relevant factor, not because the subpena protects an employee in his right to appear at a hearing, but rather because it justifies his refusal to stay on the job 16 Standard Packaging Company, Royal Lace Paper Division, 140 NLRB 628(1963) 17 N L R B v Robert Scrivener, d/b/a AA Electric Co, supra, fn 6 19 405 U S at 124 1113 as ordered by his employer. It should be noted that Scrivener did not concern the issue before us, as the employees went for their interviews with the Board agent in the evening, and thus there was no problem concerning their leaving work for such interviews and, therefore, no problem of accommodating con- flicting rights. Secondly, the employees' role at the hearing, though we would not describe it as solely that of spectators as did the Administrative Law Judge, was clearly minimal . The employees did not testify, as they were not called as witnesses , but were partici- pants only to the extent of making certain comments to union counsel with respect to management testi- mony. Thus, the Administrative Law Judge's descrip- tion was to some extent inexact. The majority notes that the employees' on-the-job interests were involved at the hearing and that they attended to protect those interests in whatever manner might be appropriate. Nevertheless, the employees' participation was mar- ginal at best, suggesting that, contrary to the subjec- tive feelings of several employees, there was little need for their attendance. Additionally, the employees' interests were repre- sented at the hearing by their Union and its counsel, who presumably was competent to protect those interests. The majority cites in support of its result certain cases to the effect that both the courts and Board have extended the statutory protection to participants in the Board's processes for the dual aims of protecting the Board's sources of information and of assuring employees ready access to the Board for vindication of their rights.20 However, as the employ- ees in this proceeding were represented by a Union and as the Union had taken their request for representation to the Board, the ends sought to be protected in the cases cited by the majority were not here in jeopardy and their holdings are not directly relevant. General Nutrition Center21 involves the issue of the accommodation to be made between an employee's right to consult the Board and an employer's right to keep its business operating during normal working hours. In that case, certain employees became dissat- isfied with working conditions insisted upon by management and stated that they were going to walk out and take their grievances to this Board. They were told in effect that they were discharged if they did so. Despite this warning, the employees walked out in the middle of the workday; went to the local Board office where they discussed their grievances with Board personnel; and then, after a 2-hour 19 See Walt Disney World Co, 216 NLRB 836 (1975), and East Tennessee Undergarment Company, 139 NLRB 1129 (1962). 20 See cases cited in fn. 11 21 Supra, fn 11. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence, returned to work only to have the fact of their discharges confirmed. The Administrative Law Judge found the discharge., to be unlawful. The Board agreed and adopted her Decision as its own. The issue in that case was, as the Administrative Law Judge stated, "whether the discharges' invasion of employees' right to consult the NLRB [was] outweighed by the Respondent's legitimate interest in keeping its store operating during its normal business hours." 22 In finding the employees' conduct protect- ed, the Administrative Law Judge relied not only on the fact that it was a concerted action concerning terms and conditions of employment, but also that it was the only practically feasible way for the employ- ees, 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 complaints. Clearly the result in that case was intended to, and did, protect employees in their statutory rights in a Board proceeding. However, the Administrative Law Judge in deciding the case pointed out specifically that she was not dealing with "a proceeding already under way, where agency representatives and, perhaps, a knowledgeable Union, had already been alerted to a possible need by the employees to be protected in and advised about their rights." 23 Such a case would, she stated, present "significant considerations" not pre- sent in the case before her. It is, of course, just such a case that is involved in the proceeding now before us; and it does present "significant considerations" distinguishing it from the situation facing the employ- ees in General Nutrition Center. For, here the Union had organized the employees; it had in filing its petition taken their bid for representation to the Board; the Union's agent was in frequent contact with the employees; and their interests at the hearings were protected by the presence of their agent and counsel. In these circumstances, the statutory ends sought to be protected by the holding in General Nutrition Center were not in jeopardy. Consequently, there was, at least insofar as the record indicates, no compelling reason for the employees to attend the hearing and their refusal to comply with the Respon- dent's order to stay on the job was, therefc "e, not justified. In short, the evidence fully establishes that the employees had no objective basis for concluding that their attendance at the hearing was necessary; that at most their actual attendance was of marginal conse- quence; and that the employees' interests were represented and protected by the Union and its counsel at all times. In circumstances such as these, we fail to see how any statutory or other useful purpose would be served by holding that the employ- ees were protected by the Act in leaving work to attend the hearing in defiance of the Respondent's order that they stay on the job, even in the absence of any substantial showing by their employer of actual or probable consequential economic loss or business disruption resulting from their absence.24 The successful functioning of a business enterprise requires, rather obviously, the presence of employees on the job during working hours. It also would seem equally evident that employee absence is inherently disruptive and unexcused absence has, of course, usually been considered, absent a legitimate strike, proper grounds for discharge. Further, one of the aims of the Act is to protect commerce from unnecessary disruption growing out of labor-manage- ment disputes, which at least suggests that this Board should use due caution in extending the Act's protection to potentially disruptive activities occur- ring on working time. In view of the foregoing, we are of the opinion that the Administrative Law Judge correctly decided the case. We agree that under the circumstances here, the employees' attendance at the hearing was not neces- sary for the purpose of protecting or realizing their rights under the Act, i.e., that there were no compel- ling reasons for their attendance. That being so, the Respondent could lawfully insist upon conducting its business in its usual manner and to that end could lawfully forbid its employees from taking time off to attend the hearing. Therefore, we would find that Respondent did not violate the Act as alleged.25 22 General Nutrition Center, supra at 856 23 /d at 857 24 The Administrative Law Judge in General Nutrition Center also referred to the fact that the employees' conduct did not prevent the employer there from continuing to operate the store during their absence In the present case , warehouse operations virtually ceased and there is some evidence , though of little weight, -f economic loss resulting from the employees' absenting themselves from their jobs . However, in cases like the present one where the employees have advanced no cogent reasons for their having to attend a hearing , an employer is under no obligation , in our view, to adduce evidence of consequential economic disruption or loss to justify refusing to permit the employees to absent themselves during regular working hours If, though, the employees had had compelling reasons for attending, then the Respondent would have had to show the existence of overriding economic or business exigencies if its refusal to grant them time off for the hearing were not to be held unlawful The subpena situation is, of course, unique , as an employee has an absolute right and obligation to respond to a subpena as it directs . However , where there is some suspicion that unlawful reasons were motivating factors in whole or in part for denying employees permission to leave work during working hours for union-related reasons , then a showing that strong economic reasons existed for denying permission to leave is some evidence that the suggested illegal reasons were not involved In the present case, there was no need for Respondent to show any consequential economic disruption or loss resulting from the employees' leaving work to attend the hearing to justify its refusal to give them permission to do so , for, insofar as the record indicates , the Respondent would, we find, have forbade the employees to leave work when they did even if their walking out had been wholly unrelated to attendance at the hearing or to any other right protected by the Act 25 The General Counsel contends that when the employees walked out to attend the hearing, they were engaged in a protected concerted activity and therefore could only be replaced and not discharged The majority merely notes this contention and does not pass on it We think it is clearly without merit. There is no basis whatsoever in the record for finding that the employees intended to engage in or in fact engaged in a walkout or strike EARRINGHOUSE IMPORTS employees intended to engage in or in fact engaged in a walkout or strike protesting management's refusal to release them to go to the hearing On the contrary, what the employees did was disregard management's order to stay on the job and then do what they all along said they wanted to do. Such conduct was nothing more than insubordination , and the fact that it was done in concert did not convert it into a protected activity APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promulgate or maintain a rule prohibiting employees from engaging in solicita- tion on company premises after their shifts have ended. WE WILL NOT discharge employees for leaving work during working hours for the purpose of attending a National Labor Relations Board hearing affecting their terms and conditions of employment where serious business considera- tions do not justify our refusing to permit employ- ees leaving work for such purpose. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WILL, upon request, recognize and bargain with Service Employees International Union, Local 250, AFL-CIO, as the exclusive collective- bargaining representative to the employees in the appropriate bargaining unit with respect to wages, hours, and other terms and conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All of our warehouse employees at our San Francisco, California, distribution center, excluding officer clerical employees, guards, and supervisors as defined in the Act. WE WILL offer Debbie Duncan, Donna Leon, Dawn Brunet, Gail Golden, Jenney King, Jackie Griffin, Pat Berry, Sharon Fisher, Wendy Ball, Laureen Buzcek, Tina Casas, Bonnie Podell, and Rose Goldman immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges or working conditions, and we shall pay them for any loss of earnings they may have suffered as a result of their unlawful discharge. E. H., LIMITED, D/B/A EARRINGHOUSE IMPORTS DECISION STATEMENT OF THE CASE 1115 RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at San Francisco, California, on February 6 and 7, 1975.1 The complaint, issued December 17, is based upon an initial charge filed August 9, a first amended charge filed December 13, and a second amended charge filed December 17 by Service Employees International Union, Local 250, AFL-CIO, hereinafter referred to as the Union. Amendment to complaint was issued January 10, 1975. The complaint, as amended, alleges that E. H., Limited, d/b/a Earringhouse Imports, hereinafter referred to as Respondent, promulgated and implemented no-solici- tation and no-distribution rules in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, and discharged 13 of its employees in violation of Section 8(a)(4), (3), and (1) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses , to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Charging Party, and Respondent. Upon the record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation with its principal place of business located in San Francisco, California, is engaged in the wholesale distribution of earring parts and supplies. During the past year Respondent in the course and conduct of its business operations, purchased goods valued in excess of $50,000 directly from customers located outside the State of California. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Service Employees International Union, Local 250, AFL-CIO, is now, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent is a dealer in earrings, earring supplies, and other jewelry and handicraft items. Respondent sells items to retail stores at wholesale prices, and also supplies its own retail outlets. Respondent acts as consultant for persons i All dates hereinafter are within 1974, unless stated to be otherwise 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desiring to establish stores , and employs salesmen in California and other western States. All wholesale activities of Respondent are conducted at its warehouse in San Francisco, where materials are received from shippers . The materials then are broken down , prepared for sale to stores , and packaged. The 13 rank-and-file employees involved herein , and 3 supervisors, were employed at the warehouse as of August 8, and Nancy Pellento (hereinafter Pellerito), a corporate officer in charge of all operations at the warehouse , has an office there. Wray Jacobs (hereinafter Jacobs), business agent and organizer for the Union, and another organizer , met with Respondent 's warehouse employees on July 10. Eight employees signed union authorization cards at the meeting of July 10, and 12 other employees signed cards thereafter. The Union requested recognition by letter addressed to Pellerito on July 11, and on July 17 Jacobs and another union representative met at Respondent 's warehouse, with two persons representing Respondent . After a general discussion about union and employee matters , Respon- dent's representative advised Jacobs that he would notify Jacobs later concerning Respondent's position . Jacobs heard nothing further from Respondent. During the last week of July and the first week of August, Respondent posted no -solicitation and no-distributions rules (G.C. Exh. 2) on the employees ' bulletin board.2 Pursuant to the Union's petition to the National Labor Relations Board , filed July 15, representation proceedings were scheduled to be held in San Francisco on August 8. They were not subpenaed or requested by the Board to attend , but the 13 employees involved in these proceedings requested of Respondent permission to attend the hearing during working hours . They were advised that they would not be excused from work for that purpose , but that they could select from among their number a single employee to attend for all. They were advised that , if they absented themselves from work without permission to attend the hearing , they would be considered as having quit , or would be considered for discharge. All 13 employees attended the hearing during working hours , and were discharged by Respondent on August 8, shortly after they returned to the warehouse. Contentions of the Parties General Counsel contends that the rules posted by Respondent were discriminatonly promulgated and imple- mented , as an antiunion measure. General Counsel also contends that it was necessary for the employees to attend the hearing in order to be available to testify if necessary, and to assist their counsel; that , therefore , Respondent's discharge of the employees was discriminatory and in violation of the Act. Respondent contends that the rules are reasonable and proper, and that its discharge of the 13 employees was for cause not related to union or concerted activity. A. The Rules The rules involved in this controversy were posted by Respondent in late July or early August . They state: Based upon long established rules , your attention is called to the following: Solicitation of any type by employees during working time is prohibited. Solicitation on company premises by employees after employees shift has been completed is prohibited. Distribution of literature of any type or description by employees during working time is prohibited. Distribution of literature of any type or description in working areas is prohibited. Violation of any of the above rules will result in immediate disciplinary action , including discharge. At the outset it is noted that the phrase "Based upon long established rules" was challenged at hearing . Wendy Ball (hereinafter Ball) testified that she first saw the rules about Thursday of the week before the August 8 hearing , posted in the employees ' coffee room, and that she never had been told about the rules before that time . Gail Golden (herein- after Golden) testified that she first saw the rules when they were posted the end of July, and that she did not know of them before then . Pellerito testified that the rules were posted "around August 2" and that , prior to the posting, solicitation and distribution were not permitted . Mildred Zyski (hereinafter Zyski) testified in a self-contradictory manner . She first said she saw the rules in July, and later said she saw them prior to July. In support of their testimony that they did not know of the rules prior to July or August, witnesses gave examples of alleged permission of solicitation and distribution prior to then . Ball testified that a yogurt salesman stopped at the front office, and then came to the packing tables in the back of the warehouse about once each week, to sell his product. She said "two nuns came in one time for their charity." She also said a woman came into the warehouse and to the packing tables on one occasion to sell newspapers, and on another occasion one of the employees (Lisa Graham) distributed literature in the warehouse , to other employees, and posted a notice of a fair . Finally, Ball testified that, prior to July, nonwork-related conversation among em- ployees was freely allowed and the employees exchanged reading material . Golden testified that a yogurt salesman came into the warehouse once , and that "there were a group of nuns at one time who came in with ecumenical newspapers or something like that." She also said she saw Lisa Graham distribute literature on the premises during working time, and that employees talked during working time prior to the rules having been posted. Pellerito testified that Zyski told her about the yogurt salesman , and that she (Zyski) had advised the salesman that he was not permitted inside the warehouse . Pellerito 2 This fact was stipulated by all counsel EARRINGHOUSE IMPORTS 1117 testified that she took two nuns into the warehouse so they could select beads being donated by Respondent for children. She said she knew nothing about a woman selling newspapers in the warehouse, but that she did remember Lisa Graham leaving a school schedule for the girls to look at. She said she did not know about the fair bulletin alleged to have been posted. Pellerito said employees bring magazines to the warehouse, but read them only on breaks. Zyski confirmed the fact that she told the yogurt salesman not to sell his product in the warehouse. The instances of alleged permission to solicit and distribute thus are seen to be vague and uncertain. The nun incident was credibly explained by Pellento. If there was solicitation , it was confined to the office, with Pellerito accompanying the nuns into the warehouse to select beads. The yogurt incident was credibly explained by Pellerito and Zyski, and does not support the solicitation allegation - it was a single isolated incident, and was stopped as soon as management learned about it. It appears that the alleged distribution of literature and posting of a notice of a fair were isolated incidents at most, and that management either did not know of them, or believed the literature was read only during breaks. So far as talking is concerned, Ball's testimony was not contradicted and is credited. It seems clear that, prior to the posting of the rules, nonwork related talking was permitted during working time. It is found that, prior to posting of the above rules in July or August, solicitation or distribution rules had never been posted or enunciated to employees by Respondent. It is further found that, prior to said posting, Respondent prohibited solicitation in the warehouse during working hours. The record is devoid of any showing that Respondent enforced any of the rules after they were posted. There is no basis for finding a violation of the Act through discrimina- tory enforcement.3 It is necessary, therefore, to determine whether the rules are invalid on their face. Applicable law involving rules prohibiting solicitation or distribution during working time is set forth in Blake, Moffitt & Towne, 214 NLRB 859, fn. 1(1974), which reads: In adopting the Administrative Law Judge's finding that Respondent did not unlawfully prohibit union solicitation, we rely on Essex International, Inc., 211 NLRB 749 (1974), where the distinction between the terms "working hours" and "working time" is clearly defined. The term "working hours" connotes the period of time from the beginning of the end of the workshift. Thus, the use of the term in a no-solicitation or no- distribution rule is reasonably calculated to mean that employees are prohibited from engaging in any form of union solicitation or distribution of union literature from the time they "clock in," or begin their workshift, until the time they "clock out," or end their workshift. In contrast, the term "working time" or "worktime" connotes the period of time that is spent in the performance of actual job duties, which would not 3 it is clear from the testimony of Ball and others that the talking permitted during work in the past had been the usual chattering that would be inevitable under the circumstances The work crew involved herein was exclusively female, the work area was an open warehouse, and the work with beads and related items did not require great caution or concentration. Ball include time allotted for lunch and break periods. Thus, the use of the term in a no-solicitation or no-distribution rule would clearly convey the meaning to employees that they were free to engage in solicitation or distribu- tion during lunch and break periods which occur during their "working hours." The Board concluded in Essex that it would consider rules which prohibit solicitation or distribution during "working time" or "worktime" to be valid on their face. On the other hand, rules which prohibit solicitation or distribution during "working hours," unless their impact on lunch or breaktime is clarified, would be invalid since they unduly restrict employees' rights to engage in union solicitation or distribution during their nonworking time. Therefore, it is found that the first and third rules quoted above presumptively are valid, and, in the absence of evidence of their discriminatory enforcement, are not in violation of the Act. The second rule, quoted above, is quite broad. A similar rule, prohibiting hourly paid employees from entering or remaining on company premises for any reason other than the performance of their regular duties, was challenged in Westinghouse Electric Corporation, Tampa Division, 199 NLRB 783 (1972). In holding the rule invalid, the Board stated: We agree with the Trial Examiner that Respondent violated Section 8(a)(1) by maintaining and enforcing a broad nonaccess rule so as to preclude off-duty employ- ees from ever distributing union literature on any part of Respondent's property. We further agree that Re- spondent has not furnished sufficient justification for so broad a prohibition, as interpreted and applied in the context of this case. However, as we stated in McDon- nell Douglas Corporation, 194 NLRB 514 (1971), we do not intend our holding to be construed as precluding employers from adopting rules regulating the use of their property which in clear and unmistakable terms define the rights of employees and do not infringe on those rights to a greater extent than necessitated by legitimate employer interests in such matters as securi- ty, traffic, and littering. We therefore find it appropriate to clarify the Order in the light of these considerations. See also, SNC Manufacturing Co., Incorporated, 174 NLRB 159 (1969); Mallory Capacitor Company, a Division of P.R. Mallory & Co., Inc., 162 NLRB 1404 (1967); Greentree Electronics Corporation, 176 NLRB 919 (1969). It is found that the second rule is invalid on its face. The fourth rule presumptively is valid, since it only limits distribution of literature in working areas. There is no evidence that the rule has been discriminatorily enforced. In such case, the rule is valid. GTE Lenkurt, Incorporated 204 NLRB 921 (1973). Respondent maintained rules other than the four written rules discussed above. Testimony shows, and it is found, testified that Pellento "said that people weren't to congregate and they would be considered for dismissal if they took company time to talk about things " Obviously Pellento's concern was with group gatherings, rather than the usual chatter expected in a warehouse. No enforcement of the antitalking rule was shown, no other testimony was offered on this point 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that regular work hours at Respondent's warehouse during all times relevant herein were from 9 a.m. to 5 p.m., and that all employees knew those hours. There was some contradiction in the testimony concerning posting of these rules and exact time, but it was shown, and is found, that Respondent has rules governing lunch periods and regular breaks; that said rules have been changed from time to time but have remained the same since at least May 19744; that all said 13 warehouse employees knew these rules; and that said break rules permitted employees to go outside during mornings and afternoons on 5-minute smoke breaks. The only testimony concerning enforcement of these rules involved an incident on August 6. Two union representatives came to the outside of Respondent's ware- house about 9 a.m. on that day to take pictures of the warehouse employees. The employees were outside for the pictures, but returned inside shortly thereafter. Nan Schlos- berg testified that the employees were outside after 9 a.m., and Ball testified to the same effect. It is clear, and is found, that the employees involved in this incident were not at work at 9 a.m. on August 6. Schlosberg testified that she told the employees they were supposed to be at work, and that she tried, without success, to stop them from going outside. Pellento testified that Schlosberg told her about the incident and that Pellerito said they would tell the employ- ees to abide by the rules. Ball testified that Schlosberg gave the employees permission to go outside. It is found that the above-described worktime and break rules of Respondent are reasonable and proper, and were known by all employees, whether or not the rules were posted. It is also found that the rules were broken by some employees about 9 a.m. on August 6, but that the violation was trivial and was either condoned by Respondent, or ignored. Finally, it is found that said rules have not been discriminatorily enforced by Respondent at any time relevant herein. B The Discharges Paragraph VII of the complaint states: On or about August 8, 1974, Respondent, by Nancy Pellerito, at Respondent 's premises , discharged Debbie Duncan, Donna Leon, Dawn Brunet , Gail Golden, Jenny King, Jackie Griffm, Pat Berry, Sharon Fisher, Wendy Ball, Laureen Buzcek , Tina Casas , Bonnie Podell and Rose Goldman because they attended a Board hearing in Case No. 20-RC-12210 held on August 8, 1974, as potential witnesses , and/or because of their membership in or activities on behalf of the Union, or because they engaged in other concerted 4 Pellento's testimony on this point is credited S Pellento testified that she warned Bonnie Podell (hereinafter Podell) on August 7 about Podell's signing for a full day's work on August 3 when Podell worked only until 11.30 a in. on that day. Pellento said Podell's excuse was illness Pellento also testified that Podell received a warning in June from a supervisor for improper signing in and out for work , and that Podell received a warning in July from another supervisor for "poor work habits " Pellento said Podell left work about 1 . 40 p.m on August 7, rather than working until 5, without informing any supervisor Pellento said she then decided to terminate Podell, but did not do so poor to the time she discharged the 12 other employees, as discussed below. Podell testified that she explained to Pellento that she left work on August 3 because she was ill, and General Counsel elicited testimony intended to show that it was activities for the purpose of collective bargaining or other mutual aid or protection. The fact of the discharges is not in dispute.5 The question is whether Respondent's actions in discharging the employ- ees violated the Act. It is not controverted that the 13 discharged employees attended the representation hearing on August 8 during working hours, and against the prohibition of Respondent; that none of the 13 was subpenaed or requested by any Board official to attend; and that none of the 13 testified at the hearing. Wendy Ball testified that, in deciding to attend and in notifying the other 12 employees of her decision, she relied on the advice of Jacobs that attendance of all 13 was necessary in order to establish employee voting eligibility, and that their attendance would be protected by the Act. Jacobs corroborated the testimony relative to his advice. Ball said she relayed her concern to Jacobs because of her belief, based on a conversation she overheard between Pellento and her lawyer and on her observation of Pellerito looking through personnel files, that "something would happen" at the hearing about job classifications. Ball testified that Pellento met with the employees on July 29, that Pellento told them she had learned about the organization efforts, and that Pellerito asked if they believed the Union was the right one for them. Pellerito said she would welcome the presentation to her of any personal problems. Ball said Pellerito again met with the warehouse employees on August 1, told them a Board hearing was scheduled for August 5, told them it would be a good opportunity for them to learn about the Union, and said "she would close the warehouse and arrange car pools if we decided to go." Ball said Pellerito again met with the warehouse employees on August 2, told them the hearing had been postponed, and said it was not necessary for them to attend the hearing. Ball said she told Pellerito that all the group wanted to attend the hearing because they felt it concerned them and that their presence was necessary. Ball testified that Pellerito met with the warehouse employees again on August 7, read from a typed paper, and said that only one of them could attend the hearing, that if all went they would be considered for dismissal, and that they had 5 minutes in which to decide who would be their representa- tive. Ball asked for more time, and Pellerito told them they could give her the answer the following morning. Ball and the other 12 signed in to work on August 8 at 9 a.m., and company "practice" for employees to tell other employees when they left early, if it was not feasible or possible to tell a supervisor . The alleged "practice ," which if proved would be an unusual business procedure , was not established . Podell 's erroneous time signouts clearly were established Pellento's testimony on this point is credited. It is found that there was independent cause to discharge Podell on August 7 , but that she was not discharged for that cause ; that she was discharged with the other 12, because of her disobeying the order of Pellento to remain at work on August 8. No weight is assigned to the fact that Podell was discharged the afternoon of August 8 with the other 12, rather than individually on the preceding day, since the pressure of events precluded individual consideration at the time, and Pellento obviously was giving her attention to a much larger group problem EARRINGHOUSE IMPORTS signed out at 9:25 to attend the hearing, just after Ball told Nan Schlosberg6 "we were all going to the hearing...." Schlosberg said, "Well, you know what the price is." They all signed back in to work at 1 p.m. About 2 hours later, Pellerito called the group together and said, "You are all being discharged for disobeying yesterday's orders." Golden testified that Pellento told the warehouse em- ployees in the meeting on July 29 that "she did not feel disposed to discuss the union situation" and that Pellerito was rather confused as to why the warehouse employees were interested in a hospital workers' union. Golden generally corroborated Ball's recitation of events at the meetings of August 1, 2, and 7. Pellerito generally testified in the same manner as Ball and Golden about the meetings in July and August, and about the discharge of the 13 employees, although there are some discrepancies and contradictions. Pellerito testified without contradiction that, at the meeting of August 7, she read the following statement to the warehouse employees: Yesterday you said that you were all going to leave work to attend the NLRB hearing. I cannot allow all of the employees to go to the hearing since it will interrupt our production. Neither is it necessary for all of you to attend. We do have to continue to do business in this warehouse. I will agree to allow you to choose one representative from among you to attend the hearing. Please let me know your choice. If all of you attend without our permission, you will be considered as having quit or will be considered for discharge. Pellerito also testified without contradiction that store managers telephone their orders to Respondent on Tuesday and Thursday of each week, and that the orders are filled during the days following the day the orders are received. The warehouse employees are responsible for preparing and packaging the orders for delivery to customers. Schlosberg testified without contradiction that she asked the employees on August 8 who their representative would be to attend the hearing, and that Ball said all of them were going, since it concerned them. Schlosberg said only 3 employees remained in the warehouse when the 13 left, and that no work was done at the warehouse thereafter on August 8. Schlosberg said six store orders called in the morning of August 8, for delivery that same day, were not filled. Golden acknowledged that she stopped work sched- uled that day for a gift show and a new store, in order to attend the hearing. It is clear beyond question that work at the warehouse virtually stopped from 9:25 a.m. until 1 p.m. on August 8, because of the absence of the 13 employees involved herein. It is found that such absence of the 13 employees resulted in loss of production at Respondent's warehouse, and failure to fill orders placed by Respondent' s customers . The exact amount of the loss was not proved at hearing, and Charging Party contends that the loss is not of probative value because it was uncertain, and not large. However, it is the principle that is controlling, not the amount of loss. The 6 Hereby found to be a supervisor within the meaning of the Act, based on stipulation of counsel This statement effectively negates the claim that Pellento was motivated by union animus Pellento did not, as General Counsel claims, prohibit 1119 fact of loss was clearly established at the hearing. It is not possible for employees constituting almost an entire depart- ment to walk off the job without causing a loss. General Counsel argues that Respondent should have rearranged its production schedule to accommodate the desires of the employees, and cites Drives, Incorporated 172 NLRB 969 (1968). The employees were not requested or ordered by the Board to come to the meeting, and Respondent was not obligated by any law to accommodate their mere desire to attend. The fact that they may have relied upon poor advice by a union representative places no burden upon Respondent, just as no respondent can avoid liability for a violation solely by pleading advice of attorney. The Drives case is not applicable, since it did not involve Section 8(a)(4). Analysis There is nothing in the record to show that any rule, or all the rules, promulgated by Respondent were motivated by any factor other than a legitimate concern for work production. It is so found. Pellerito was most circumspect in her actions involved herein, and she was a convincing witness. No antiumon statement was attributed to her; she made no threats or promises. To the contrary, she specifically refused to discuss union matters with the employees, and asked them to be sure a hospital workers' union was the one that was best for them. More important, she offered to let a representative, to be selected by the employees, absent herself from work to attend the August 8 hearing. In assessing the discharges it is necessary to consider 2 aspects thereof; first, whether the activity engaged in by the 13 dischargees is protected by Section 8(a)(4) of the Act, and second, the reason for the discharges, that is, whether they were effected discriminatorily against union activity or whether they were made for reasons other than union or concerted activity. So far as the first aspect is concerned, it is clear that the dischargees did not bring themselves strictly within the language of the Act. They were not asked, or required, to testify at the hearing and there is no evidence that they participated in the hearing in any way. Their activity resulted, at most, in a few verbal exchanges between the dischargees and the union attorney, and possibly the passing of some notes. Pellerito credibly testified that she saw no such exchanges of information at the hearing. In the brief of the Charging Party there is the statement: "Mrs. Pellerito assumed that the reason the employees wanted to go was as spectators, and that one would be a sufficient representative for that purpose.' 17 The record shows that such an assumption, if it did exist, was an accurate one. The best word to describe the activity of the dischargees at the hearing is "spectator." In order to show that the 13 employees were more than "spectators," General Counsel and counsel for the Charg- ing Party relied upon the argument that the 13 felt their presence was necessary in order to protect themselves attendance at the representation hearing to preclude the employees from interfering with the alleged plot by Pellento and her attorney to have employees classified as supervisors. Certainly, as Pellento realized, "specta- tors" are not required for representation hearings. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against an attempt by Pellerito to carry out a plan to challenge the rank-and-file status of the 13. It was contend- ed that Ball overheard comments between Pellento and her attorney, and observed actions in the office, that indicated Pellerito would try at the representation hearing to show that many or most of the 13 were "supervisors." Ball testified that she overheard a conversation between Pellen- to and a man she thought to be Pellento's lawyer, wherein a planned attack on job status was discussed. However, that conversation first was referred to at the heanng and further, there is no support for such testimony; so far as the record shows, Pellento's attorney has never been in the warehouse, and Ball's enclosed work area was about 200 feet from Pellerito's enclosed office. Finally, the record of the representation hearing (G.C. Exh. 4) discloses no testimony at the hearing, of the nature testified to by Ball. General Counsel makes an interesting observation in his brief: The employees, moreover, did not learn until after work on August 7 of the possibility that Respondent would raise an eligibility or unit placement issue and, before the representation heanng, they were unable to commu- nicate to the absent Pellerito their desire to attend the representation hearing in order to testify about their own jobs. Upon signing out on the morning of August 8, the employees did the next best thing and told a supervisor that they were going to attend the represen- tation hearing in order to testify about their own jobs. That statement is at odds with the cornerstone argument of General Counsel and Charging Party to the effect that Pellerito legally was obligated to permit the 13 employees to attend the August 8 hearing because their attendance was necessary to protect their jobs and, further, that Pellerito's motive in preventing such attendance was to violate the employees' rights under the Act. The record is clear that Pellento knew nothing about the employees' alleged concern about their rank-and-file status, at any time relevant herein. If there actually was any such concern (a doubtful proposition) it never was expressed to Pellerito. So far as the latter knew, even by Ball's testimony, the only reason the exployees wanted to attend the hearing was because they were "concerned" about their jobs. When Pellerito told the employees August 2 and again on August 7 that they would not be given time off to attend the hearing, she was responding to a simple request, not to a fear by the employees that theirjobs were in jeopardy, and more important, not in defiance of Board process or employee rights under the Act. Even so late as the rr _rning of August 8, when the employees told Schlosberg they were leaving and Schlosberg again warned them of the possible consequences, Ball merely stated they were going to attend the hearing in order to testify about their jobs. No Board subpena or request for attendance, or show of necessity to attend, was offered by any employee to Schlosberg or any other representative of Respondent. It is noted that the Charging Party argues at length in its brief that "The employees had relied, up until the afternoon of August 7, 1974, upon the fact that the employer had not told them they could not attend the meeting." That argument ignores the testimony of Ball, General Counsel's wit:iess, who said about the meeting of August 2: "Nancy [Pellerito ] spoke. She said that the hearing was postponed, that none of us were to go to the meeting. It wasn't necessary any more." Golden corroborated that testimony, as did Pellento. In fact, the Charging Party argues its case on the basis of the Ball-Golden-Pellerito testimony at page 6 of its brief. It is found that the employees knew at least by August 2 that they would not be allowed to attend the hearing. Respondent did not tell the employees until August 7 that termination would be the discipline for leaving without permission to attend the hearing, but there was no doubt after August 2 that they were forbidden to leave. They had ample time thereafter to seek union or other assistance, as suggested by the Charging Party, if such was their desire. In order to provide support for its contention that the activity of the 13 is protected by the Act, Charging Party cites, and quotes from, National Labor Relations Board v. Robert Scrivener, d/b/a AA Electric Company, 405 U.S. 117 (1972). Charging Party states, "Thus, protection was afforded to an employee `who participates in the Board investigation [although he] may not be called formally to testify .. ..... However, that case presents an entirely different problem. There, an employee was directly in- volved in the Board's investigative process. His protection (through Sec. 8(a)(4) was essential , in order to preserve the Board's effectiveness. Here, the 13 employees were not asked, or required, to assist in a Board function that was proceeding entirely independently from their actions. The 13 were, in every sense of the word, "spectators." Charging Party also relies upon Drives, Incorporated, 172 NLRB 969 (1968). However, that case also is not applicable to this controversy. The cases of East Texas Undergarment Compa- ny, 139 NLRB 1129 (1962), and Newland Knitting Mills, 165 NLRB 788 (1967), involve the issue of subpenas and thus are not controlling herein. It is true, as urged by General Counsel and the Charging Party, that the intent of the Act is broader than its language. National Labor Relation Board v. Scrivener, supra. However, it does not follow that the Act strips management of every vestige of control over its employees and its production processes. Certainly the Act protects employees' testimony, statements under oath, charges against management , and investigative disclosures. Other- wise, labor's role would be completely subordinated to that of management. But the Act just as certainly places a limit on employees' actions, and does not clothe their every desire with immunity from management discipline. If an entire production department could be shut down, as here, by employees wanting to attend a hearing at which their presence was not sought or required, those employees could as well shut down the plant to go to a union movie, or a union social gathering. The Act is not that broad. So far as the second aspect of the question (posed above) is concerned, the record clearly shows that Respondent discharged the 13 for one reason : they flagrantly defied an explicit proper order and refused to accept a reasonable offer by Pellerito to permit one representative to attend the hearing. As discussed above, it is clear that Pellerito proceeded cautiously, fairly and without union animus. Originally, EARRINGHOUSE IMPORTS confused and uncertain when faced upon return from vacation by an unexpected situation, she reacted in a precipitous and conciliatory fashion. However, after given the matter further thought and conferring with her attor- ney, she realized she did not have to yield all her management rights. She thereupon offered the employees a compromise, asserted her legitimate interest in work production, and warned the 13 that a walkout would result in dismissal . Shortly after returning to work the morning of August 8, the 13 began to leave for the hearing, ignoring Pellerito's offer, and were warned by Schlosberg of the consequences of their actions. They ignored the second warning as they did the first, and left the warehouse. Pellerito did not refuse to honor the Board's process, or belabor the Union, or threaten the employees because of their union activity. Her sole statement to them was one of concern that they select a umon best suited to their needs. Pellerito knew nothing of the allegation that she planned to attack the rank-and-file status of employees at the hearing; the record simply does not support such a contention, and it is not credited. Pellerito's concern for her business and her customers demonstrably was her reason for issuing her order to the employees not to attend the August 8 meeting en masse. Fear of unionization was not the reason - the Union had already signed a majority of the employees, and one meeting had been held between union and manage- ment representatives. Unionization was a fail accompli, for practical purposes; attending the meeting would not make the 13 more disposed toward the Union than they already were. It was not alleged, or shown by any evidence, that the order against attendance was issued in spite, or in retalia- tion. To the contrary, Pellento said one employee could attend. All the employees had to do to keep their jobs, and to anticipate representation by the union of their choice, was to obey the legitimate order of their employer. They defied that order, and it was their defiance that was their undoing - not their union activity. It may be that the punishment was too severe, but that is not a Board concern when the activity is not protected by the Act. The case of Standard Packaging Corporation, Royal Lace Paper Division, 140 NLRB 628 (1963), involved the dis- charge of two employees who absented themselves from work to attend a Board representation hearing, after their request to attend was denied. In upholding the discharges, the Board stated: In the circumstances, we cannot find that Respondent's refusal to release Storms and Murray was motivated by any desire to interfere with the Board's processes or with such rights as the complainants may have had to attend the Board proceeding as prospective witnesses. a Nor can we say that the position taken by Respondent would, had Storms and Murray accepted it, have occasioned an interference with the proceeding or precluded the complainants from attending the hearing upon a reasonable showing that their attendance was necessary. It is our belief that this record adequately supports the Respondent's asserted reliance upon its 8 The Wanamaker case was somewhat different from the instant case in that there an employee falsified his time records while absent without permission However, the Wanamaker case was decided upon the basis of Sec 8(a)(4), not upon the basis of falsification of time records The latter 1121 work schedule as the reason for its unwillingness, in advance of the hearing, to release more than two employees to attend the hearing. And we are persuaded that the subsequent disciplinary action taken against Storms and Murray was not in reprisal for any protected activity on their part, but was motivated solely by the complainants' absence from the plant in disregard of orders. a in so concluding, we have taken into account Respondent's liberal policy of excusing employees on account of sickness or for "personal" reasons In upholding two discharges under similar circumstances in the case of John Wanamaker, Philadelphia, Inc., 199 NLRB 1266 (1972),8 the Board approved the language of the Administrative Law Judge: Section 8(a)(4) in no way restrains an employer's right to maintain discipline among his employees, and the protection afforded by Section 8(a)(4) does not immun- ize employees against discharge of discipline for mis- conduct or violations of the employer's rules. It is found that the 13 employees involved herein were discharged by Respondent for good and valid business reasons, and not because of umon or other protected activity. Requested Bargaining Order General Counsel requests a bargaining order on the basis of "serious and substantial" unfair labor practices on the part of Respondent. As shown above, the 13 employees involved herein were discharged following warning, because they disobeyed Respondent's legitimate order not to leave their jobs to attend a hearing at which they were not asked, or required, to testify, thereby stopping production at Respondent's warehouse from 9:25 a.m. until 1 p.m. on August 8. The employees were found not to have been discharged for union or concerted activity. Respondent has been found to have committed only one, relatively minor, unfair labor practice. There was not established "outrageous" or "pervasive" unfair labor prac- tices within the meaning of N. L. R B. v. Gissel Packing Co., Incorporated, 395 U.S. 575 (1969). There has been no showing that conventional remedies are not adequate. Joseph J. Lachniet, d/b/a Honda of Haslett, 201 NLRB 855; Motown Record Corporation., 197 NLRB 1255 (1972); Gold Circle Department Stores, a Division of Federated Depart- ment Stores, Inc., 207 NLRB 147 (1973). I find that the Board's conventional remedies are adequate to neutralize the effect of the unlawful no- solicitation rule promulgated by Respondent so that a fair election can be held and that, therefore, a bargaining order is not warranted. consideration affected the question of the employer's motive, not the question of whether the absence from work to attend a representation hearing was within the protection of Sec 8(a)(4). 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES CONCLUSIONS OF LAW UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found and concluded that Respondent has not engaged in the unfair labor practice alleged in para- graph VII of the complaint, it will be recommended that said paragraph be dismissed in its entirety. It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and the entire record, I hereby make the following: 1. E.H., Limited , d/b/a Earringhouse Imports, is, and at all times material herein has been , an employer engaged iii commerce and a business affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Service Employees International Union , Local 250, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent did not, through alleged conduct , violate Section 8(a)(4), (3), and ( 1) of the Act by discharging the employees named in paragraph VII of the complaint. 4. Respondent engaged in unfair labor practices in violation of the Act by promulgation of an unlawful no- solicitation rule. 5. By the actions described in paragraph 4 above, Respondent has interfered with, restrained , and coerced, and is interfering with , restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation