Electromec Design and Development Co., Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 763 (N.L.R.B. 1967)

ELECTROMEC DESIGN & DEVELOPMENT CO. 763
Electromec Design and Development Company, Inc.
and Robert G. Saxer. Case 20-CA-4268
December 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On July 24, 1967, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tled proceeding, finding that Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and
Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
The complaint alleged that Respondent violated
Section 8(a)(1) of the Act by discharging employees
Robert G. Saxer, Davy J. Mooney, Charles C.
Pickelman, Jr., and Wilfred F. Gilbert for having
engaged in a protected walkout to protest Respond-
ent's failure to grant employee requests for im-
proved terms and conditions of employment. The
Trial Examiner concluded that the walkout was
concerted activity, that the alleged discriminatees
participated therein, and that their participation in
the stoppage was the cause of their discharge, but
recommended dismissing the complaint upon the
ground that the evidence failed to disclose that the
stoppage was a protected effort to obtain improved
terms of employment. We agree with and adopt the
Trial Examiner's subsidiary findings, but we also
find, contrary to the Trial Examiner, that the record
is ample to establish that the walkout was protected
and'that the discharges violated Section 8(a)(1) of
the Act.
The facts, as found by the Trial Examiner, show
that, during 1966, Respondent's tool-and-die
makers made a variety of demands for improved
terms and conditions of employment. Thus, shortly
after a Board-conducted election in February of
that year, in which the employees rejected union
representation, the tool-and-die makers requested
an additional paid holiday which Respondent
granted. Thereafter, in July 1966,1 Saxer, the most
vocal of the tool-and-die makers, requested a wage
increase, and, when given a five-cent raise, in-
dicated his dissatisfaction therewith to manage-
ment. About a month later, Saxer asked for an addi-
tional increase, and, when his request was denied,
Saxer encouraged other employees to ask for a
raise.
Shortly after Labor Day, Saxer inquired of
Porschien, Respondent's plant manager, if an em-
ployee who had not worked the day after Labor
Day because of illness would be paid for that
holiday. In responding to the inquiry, Porschien,
asked Saxer, "What are you, some sort of commit-
teeman or something for the group?" Saxer replied
that he wanted to know the policy because what
happened to one man could happen to all.
Also, in September, employees in the machine
shop, including the tool-and-die makers, discussed
among themselves their dissatisfaction with existing
working conditions and formulated a list of changes
they desired. The list was presented to Porschien
by Saxer. Specifically, the employees requested: (1)
a 2-week paid vacation after 1 year of employment;
(2) improved hospitalization; (3) sick leave; (4)
modification of the rule requiring employees to
work the day before and after a holiday to be eligi-
ble for holiday pay; and (5) overtime pay for Satur-
day work.
On receiving the demands, Porschien advised
that he had no authority to do anything about them.
Saxer asked for a meeting with higher management.
When Porschien failed to schedule a meeting, Davy
Mooney also asked Porschien for such a meeting,
and requested Porschien to invite employees from
other departments to attend. A meeting was finally
arranged and, on September 21, Saxer, Davy Mo-
oney, Gilbert, and Pickelman and three other tool-
and-die makers met with Padgett, Respondent's
president, Vasta, Respondent's vice president, and
Fred Starr, a supervisor. Saxer was spokesman for
the employees. At the meeting, none of the em-
ployee requests was granted, although Padgett did
promise to investigate possible improvements in in-
surance benefits and spoke of certain exceptions
that could be made to the holiday pay policy. How-
ever, the request for Saturday overtime was flatly
rejected.
The walkout occurred on Saturday, October 8.
Prior thereto, on the morning of October 8, Saxer
again asked Porschien for a raise, and was informed
that his pay would remain the same for some time.
Saxer then indicated he was resigning, effective the
following Friday, October 14. Following his en-
' All dates refer to 1966.
168 NLRB No. 107
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counter with Porschien, Saxer returned to work and
informed the other employees that he was resigning
because of Respondent's failure to give him a pay
raise. A few hours later, at about 11:20 a.m., all of
the machine shop employees lined up to punch out.
When Supervisor Starr asked what was going on,
the employees stated that they were going home.
Porschien also asked an employee what was going
on and was told, "I can't talk to you."2
Padgett, Respondent's president, learned of the
walkout on Saturday evening and, on Sunday morn-
ing, October 9, called Vasta, telling him to try to
determine the reason for the walkout. Vasta called
Saxer and asked "What happened yesterday, Bob?"
Saxer merely replied he had felt like taking the af-
ternoon off. When contacted by Vasta, Gilbert gave
his reason as dissatisfaction with his current wages.
Vasta suggested that Gilbert come in and talk about
it, but Gilbert replied he would perfer talking to
Vasta along with the other employees on Monday.
Employee Bates, however, initially indicated his
unhappiness with conditions in the shop, but sub-
sequently met with Vasta at the office and told him
that, since he did not attend the September 21
meeting, his fellow employees had been giving him
a "hard" time and that he just left with them
because he had to work and live with them. Em-
ployee Will Mooney was called by Personnel
Manager Bunker and gave as his reason for leaving
his dissatisfaction with working overtime.
In meeting with President Padgett on Sunday,
Vasta stated that all the employees should be fired.
The decision to fire all employees, however, was
overruled by Padgett. On Monday morning, Vasta
selected five tool-and-die makers for discharge;
namely, Saxer, Davy Mooney, Pickelman, Gilbert,
and Will Mooney. At the suggestion of Porschien,
however, that Will Mooney did not really dislike his
job but had merely been "caught up" in the wal-
kout, Vasta consented to retain him.
Upon arriving at work on Monday morning,
Saxer, Pickelman, and Gilbert found their
timecards were missing and were told not to punch
in until they had attended a meeting with manage-
ment in the conference room. The card of Davy
Mooney had also been removed, but, as he had
been injured in an accident over the weekend, he
did not come in at the time the shift started. When
he phoned in to report his accident and was told of
the early morning meeting, he decided to report to
the plant.
Saxer, Pickelman, and Gilbert testified that the
termination interview opened with Porschien, at
Padgett's direction, telling them their services as
tool-and-die makers were no longer needed. Padgett
testified he asked Saxer if he had resigned and,
upon Saxer's affirmative answer, told Saxer his
resignation would be accepted immediately.3
Padgett testified that Gilbert told him he had left
early the previous Saturday to check on his wife's
high blood pressure, and that Pickelman said he was
tired. Padgett testified that the reasons given for
walking out did "not hold water" as far as he was
concerned and that this triggered his decision to fire
them at once. Davy Mooney was not at the meeting
and arrived just as Pickelman was leaving. Pickel-
man informed him of what had happened. Davy
Mooney then went to Porschien and asked him if it
were true that he and the others were discharged.
Porschien replied it was true, saying "Well, Dave,
we can't have everyone going home at noon
everytime somebody quits."
In finding the evidence insufficient to establish
that the walkout was protected, the Trial Examiner
concluded that it would be "sheer speculation" to
consider the September 21 denial of employee de-
mands as the cause of the strike, and also found that
the strike was not a protest against the Respond-
ent's failure to grant Saxer an increase on October
8. In disagreeing with the Trial Examiner, we are
persuaded that a preponderance of the evidence
establishes that the walkout was a manifestation of
the general dissatisfaction among machine shop
personnel as to the failure of management to accede
to their demands. Thus, the walkout was supported
by all machine shop personnel. The record plainly
establishes the continuing unrest among employees
within this group and their repeated demands for
improved working conditions. These demands were
presented to management both on an individual and
concerted basis. Only about 3 weeks prior to the
walkout, the employees presented their grievances
to management, and at no time thereafter received
a positive response indicating that any of their
major demands would be accepted. On October 8,
when the futility of their efforts was again demon-
strated by the denial of a wage increase to their
spokesman, Saxer, they elected to walk out. Signifi-
cantly, the walkout occurred on a Saturday;
Respondent's failure to provide overtime for Satur-
day work had been one of the major complaints
pressed, without success, by the employees.
While it may be true that the record fails to dis-
close that machine shop personnel renewed the
requests made at the September 21 meeting prior to
the walkout, the major demands made at that meet-
ing remained unresolved and were not so remote in
point of time as to warrant their exclusion from our
consideration in determining the cause for the walk-
out. "The language of § 7 is broad enough to pro-
2 We attach no significance to the Tnal Examiner 's finding that all four
of the alleged discriminatees sought and obtained permission to leave
early on October 8 As the walkout occurred before the grant of permis-
sion was to be effective, these employees, as found by the Trial Examiner,
joined the other employees in the concerted refusal to work.
3 Although Saxer had resigned as of October 14, his accelerated ter-
mination , if motivated by Saxer's having engaged in concerted protected
activity, was in effect an unlawful discharge.
ELECTROMEC DESIGN & DEVELOPMENT CO. 765
tect concerted activities whether they take place be-
fore, after, or at the same time [the] demand is
made."4 Moreover, upon realistic evaluation of the
total circumstances preceding the walkout, we are
satisfied that the reason for the walkout cannot
fairly be assessed by considering in isolation each
of the various employee requests and denials
thereof by management. The general unrest ex-
hibited by tool-and-die makers and other machine
shop personnel concerning wage rates and over-
time, as well as Respondent's denial of the benefits
specifically requested on September 21, when con-
rsidered against other possible motivations for the
stoppage, in our opinion, render the conclusion in-
escapable, on the basis of objective evidence, that
the walkout was in furtherance of the employees'
efforts to make management more responsive to
their demands for various improvements in existing
employment conditions. Accordingly, we find that
the walkout, being in quest of improved terms and
conditions of employment, was protected concerted
activity within the intendment of Section 7 of the
Act.
In so finding, we reject as without merit Respond-
ent's contention that it had no knowledge that the
walkout was protected. Respondent at all times was
fully aware of the continuing unsatisfied demands
emanating from workers in the machine shop. In ad-
dition, immediately after the work stoppage, but be-
fore the discharges, Respondent interviewed
several employees as to the reasons for their par-
ticipation therein. As a result of such interviews,
Respondent was advised by employee Gilbert that
he was dissatisfied with his wages. Employee Bates
told Respondent that he was dissatisfied with condi-
tions in the shop, and that he had joined the others
because he had been ostracized as a result of his
failure to attend the September 21 meeting. Will
Mooney stated that he walked out because he was
tired of working overtime. The fact that Respond-
ent retained Will Mooney because Porschien
stated that Mooney "was primarily happy at Elec-
tromec, and he had no particular beef," but was
merely caught up in the walkout, further demon-
strates Respondent's knowledge that the walkout
was caused by what it regarded as a discontent with
working conditions. In these circumstances, we are
satisifed and find that Respondent actually knew or
had reasonable basis for inferring that the walkout
was but a further step by machine shop personnel
to improve their employment terms.
For the above reasons, and as we adopt the Trial
Examiner's finding that Respondent discharged em-
ployees Saxer, Davy Mooney, Charles Pickelman,
and Wilfred Gilbert for their part in the walkout,6
we find that Respondent thereby violated Section
8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
We have found that Respondent violated Section
8(a)(1) of the Act by discharging Davy Mooney,
Charles Pickelman, Wilfred Gilbert, and Robert
Saxer because they had engaged in concerted ac-
tivities for purposes of mutual aid or protection. We
shall therefore order that Respondent offer to em-
ployees Mooney, Pickelman, and Gilbert reinstate-
ment to their same or substantially equivalent posi-
tions with full restoration of seniority or other
benefits they would have enjoyed had they not been
discriminated against. We shall also order that
Respondent make Mooney, Gilbert, Pickleman,
and Saxer whole for any wages lost because of the
discrimination, with backpay computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, plus interest at 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
ent, Electromec Design and Development Com-
pany, Inc., Santa Clara, California , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its em-
ployees within the protection of Section 7 of the
Act by discharging , or in any other manner dis-
criminating against , an employee or employees for
engaging in such activity.
(b) In any like or related manner interfering
with , restraining, or coercing its employees in the
exercise of their right under Section 7 of the Act to
engage in concerted activities for their mutual aid
4 N.L.R B v Washin ton Aluminum Co., 370 U .S. 9, 14
Indiana Gear Works , 156 NLRB 397 , 400, enforcement denied 371
F.2d 273 (C A 7, 1967), Walls Manufacturing Company, Inc., 137
NLRB 1317 , 1318; West Coast Casket Company , Inc., 97 NLRB 820,
824, enfd 205 F 2d 902 (C.A. 9). In finding that Respondent knew or had
reasonable cause to believe that the employees were engaged in a pro-
tected work stoppage , we do not mean to imply that such a finding is in-
dispensable to the violation found herein See, e.g , N.L R B v Burnup &
Sims , Inc , 379 U S 21
` At the hearing , the Respondent adduced evidence that it no longer
needed employees possessing the higher skills of tool -and-die makers, and
that this was a factor considered in discharging the four employees How-
ever , the Respondent admitted that it had previously decided to retain
those occupying this position, replacing them with less skilled workers
through normal attrition only. Accordingly, and as the record fails to
reveal any intervening justification, other than the walkout itself, for
Respondent 's change in position and decision to discharge the tool-and-
die makers, we find no merit in this contention See, a g., Coast Radio
Broadcasting Corporation d/bla Radio Station KPOL, 166 NLRB 359.
766 DECISIONS OF NATIONAL
and protection or to refrain from such activities, ex-
cept to the extent that such right might be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended
by the Labor-Management Reporting and Disclo-
sure Act of 1959.
2. Take the following affirmative action to effec-
tuate the policies and remedial purposes of the Act:
(a) Offer Charles Pickelman, Wilfred Gilbert,
and Davy Mooney full and immediate reinstate-
ment to their former or substantially equivalent
positions.
(b) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
(c) Make the three above-named employees and
Robert Saxer whole for any loss of earnings they
may have suffered as a result of the discrimination
against them, in the manner described in the section
of this Decision and Order entitled "The Remedy."
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other data necessary to analyze and
compute the backpay required by this Order.
(e) Post at its office and place of business in
Santa Clara, California, copies of the attached
notice marked "Appendix."7 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 20, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 20,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
LABOR RELATIONS BOARD
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise dis-
criminate against our employees for engaging
in concerted protected activities for the pur-
pose of mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right under Sec-
tion 7 of the Act to engage in concerted activi-
ties for their mutual aid or protection, or to
refrain from any or all such activities, except to^
the extent that such right might be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
amended by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer Charles Pickelman, Wilfred
Gilbert, and Davy Mooney immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges previ-
ously enjoyed.
WE WILL make the above-named employees
and Robert Saxer whole for any loss of
earnings they may have suffered as a result of
the discrimination against them.
ELECTROMEC DESIGN
AND DEVELOPMENT
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify employees Wilfred Gilbert,
Davy Mooney, and Charles Pickelman, if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 13050 Federal Building, 450 Golden Gate
Avenue, San Francisco, California, Telephone
556-3197.
TRIAL EXAMINER'S DECISION AND RECOM-
MENDED ORDER
JAMES R. HEMINGWAY, Trial Examiner: This case
stems from a charge filed on October 10, 1966, and an
ELECTROMEC DESIGN & DEVELOPMENT CO.
amended charge filed on February 13, 1967,' by Robert
G. Saxer, against his former Employer, Electromec
Design and Development Company, Inc., herein called
the Respondent. The complaint herein was issued on
February 16, 1967. It alleges in substance that the
Respondent discharged four employees2 because they
had engaged in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection. The
Respondent's answer, filed on February 28, 1967, denied
the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in San Jose,
California, on April 4 and 5, 1967.3 At the opening of the
hearing, the (.eneral Counsel's unopposed motion to
amend the jurisdictional allegations of the complaint was
granted. At the conclusion of the hearing, the parties
requested time in which to file briefs, and such time was
granted. Briefs have been received from both the General
Counsel and the Respondent.
From my observation of the witnesses and upon the en-
tire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its of-
fice and place of business in Santa Clara,4 California,
where it is engaged in the servicing of electrical equip-
ment. In the course of its operations, Respondent an-
nually provides services valued in excess of $50,000
directly to customers located outside the State of Califor-
nia and annually provides services valued in excess of
$50,000 to customers which meet one of the Board's
jurisdictional standards excepting the indirect outflow or
indirect inflow standards.
No issue is raised over jurisdiction. I find that the
Board has jurisdiction and that it will effectuate the poli-
cies of the Act to assert jurisdiction.
II. THE ISSUE
The question for decision is whether or not four em-
ployees were discharged in violation of the Act after they
had led a half day's walkout without explanation to
management of the reason therefor and later gave no
reason or gave reasons which were strictly personal,
although the circumstances attending the walkout sug-
gested that concerted action was the basis therefor.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent was organized as a partnership in 1956,
but later it was incorporated. It gives technical services
to industry, does data processing, and develops products.
' The only difference between the original and the amended charge is
that the original charge alleged a violation of Section 8(a)(1) and (3) of the
Act, whereas the amended charge alleged a violation only of Section
8(a)(1) of the Act
2 Wilfred F Gilbert, David J. Mooney, Charles C. Pickelman, Jr, and
Robert G. Saxer.
' The transcript of testimony contains numerous errors which have
been noted and corrected
4 The place is taken from the allegations of the complaint admitted by
the answer. Some evidence indicates that the Respondent has a plant in
767
Since July 1956, Respondent has had a contract with
IBM for performance of services. In 1964, Respondent
opened a metal shop, the employees at which are the ones
involved in the events herein related. The metal shop is
divided by a partition, with sheet metal workers on one
side and machine shop workers on the other side. In this
shop, the Respondent constructed test equipment for
IBM, using IBM tools and equipment. An IBM super-
visor of the managerial level worked closely with
Respondent's supervisors on the project and initially
requested Respondent to hire tool-and-die makers to
perform some of the work. The Respondent did hire
such men, and the four alleged discriminatees, all tool-
and-die makers, were hired on various dates in 1965.
B. The Discriminatees
Davy Mooney was hired on March 1, 1965, at a rate of
$3.25, but within a year was given successive raises that
brought him to $4.25. Charles Pickelman was hired on
April 12, 1965, at a rate of $3.75 an hour and was raised
to $4.25 in about a year's time. However, in September
1966, he was raised to $4.40, the only one of the four to
receive that high a rate. Wilfred Gilbert was hired on May
4, 1965, at a rate of $3.80 an hour, and, by January 1966,
he was receiving $4.25. Robert Saxer was hired in Sep-
tember 1965, at a rate of $3.75 an hour. He received 15-
cent increases in December 1965, January 1966, and in
March 1966, and a 5-cent increase in July 1966, which
brought him to $4.25. The competency of all four men
was conceded by the Respondent.
The Respondent gave evidence to the effect that, at
some stage of the work for IBM, the Respondent began
to feel that the IBM work did not require employees of
the grade of tool-and-die makers, because the work was
simpler and more repetitive in nature than the work for
which a tool-and-die maker was customarily employed,
and it felt that the work could be performed by a good
prototype machinist at a lower rate of pays At whatever
time the Respondent reached the opinion that tool-and-
die makers were not necessary, it decided, according to
President Joseph Padgett, not to terminate the tool-and-
die makers but to let attrition take care of the situation
through normal turnover and to hire machinists to replace
the tool-and-die makers who might quit.
C. Employee Activities
In February 1966, a union election was held to deter-
mine whether or not the employees wished to be
represented by a certain craft union.6 The record does not
indicate the scope of the proposed unit, but I conclude
that it would have embraced at least the tool-and-die
makers. The employees voted against the Union.
Thereafter some of the tool-and-die makers (including
one or more of the alleged discriminatees) approached
San Jose, California, adjacent to Santa Clara.
Manager Carl Porschien testified that he had reached this conclusion
in the summer of 1965. However, the testimony of Vice President Fred
Vasta put the time when the Respondent felt that tool- and-die makers
were not necessary for the kind of work being performed as in midsummer
of 1966. Other evidence leads me to conclude that no fixed conclusion had
been reached before Pickleman received his last wage increase in Sep-
tember 1966.
F Independent Craftsmen, Tool & Die Makers.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Padgett to request a holiday on Good Friday.
Padgett granted the request.
In mid-July 1966, Saxer asked Manager Porschien for
a raise in pay. At that time Saxer's rate was $4.20 an
hour. Porschien said that he would check it out with his
superiors, and later he returned to say that Saxer would
get a 5-cent raise. However, Saxer soon thereafter asked
Porschien if there was any chance of getting more than 5
cents. Porschien told him that there was no chance then,
but, according to Saxer, said that he would see what came
up in 4 to 6 weeks. At the end of that time, Saxer again
asked Porschien for a raise, saying that his rate was not
enough for a toolmaker. Porschien disputed this, and
Saxer received no increase. Saxer testified that he then
got others in the shop to go to Porschien to ask for a raise.
No one else testified to this, however.
Shortly after Labor Day in 1966, Saxer went to
Porschien to ask if an employee named Al Ford, who,
because of illness, had not worked the day after Labor
Day, would be paid for the holiday. Porschien asked, ac-
cording to Saxer, "What are you, some sort of commit-
teeman or something for the group?" Saxer answered that
this could happen to others and that they wanted to know
what the policy was.7 Saxer did not testify to any reply by
Porschien.
About mid-September 1966, the men in the machine
shop discussed working conditions and made up a list of
five subjects that they wished to discuss with manage-
ment. These were requests for (1) a 2 weeks' vacation
after 1 year of employment, (2) an improved hospitaliza-
tion plan, (3) sick leave, (4) a modification of the rule
requiring an employee to work both the day before and
the day after a holiday in order to be entitled to pay for
the holiday, and (5) overtime pay for Saturday work, as
such.
Saxer took these demands to Manager Porschien to
discuss. Porschien looked them over and said that there
was nothing that he could do about them. Saxer then
asked Porschien to set up a meeting with management so
that the several things could be discussed. Porschien
agreed to do so. There was some delay in setting up this
meeting and, during this period, Mooney, too, spoke with
Porschien about setting up the meeting. A meeting was
finally scheduled for September 21, 1966, at 4:15 p.m.,
after work. Saxer and Mooney sought to have employees
from other departments attend this meeting also. At 4
p.m. on September 21, Porschien asked Saxer and Mo-
oney who had told the electronics employees about the
meeting, and Mooney replied that he had. Mooney
testified that Porschien walked off mad. Because of the
small size of the conference room, the meeting was
limited to the men in the machine shop.
At the appointed time, Saxer, Mooney, Pickleman, Gil-
bert, and three more tool-and-die makers met with Pre-
sident Padgett, Vice President Vasta, and Leadman Fred
Starr. (Porschien testified that this meeting was for the
first- and second-shift top-level people, meaning the
highest paid men, or, as I find, the tool-and-die makers,
and that a second meeting was held the next day for the
rest of the men in the metal shop. Porschien attended only
the second meeting.) At the opening of the meeting,
° An employee named Russell had been denied pay for July 4 because
he had not worked the full day on the day after the holiday, presumably
because of illness
" Saxer testified that he had not asked permission to leave early,
Padgett asked who would be the spokesman for the em-
ployees. Saxer replied that he would. He then outlined
the five points previously mentioned. As to the first, a 2
weeks' vacation after 1 year (existing policy being 2
weeks' vacation after 3 years), Padgett declined to change
the current plan but said that, if prior arrangements were
made with supervisors, it would be permissible for a man
to take additional time off, presumably without pay. As to
hospitalization, Padgett said that the Respondent was in-
vestigating this and that the insurance carrier had already
furnished literature on a plan which would include dental
care, but that this plan would more than double the cost
of insurance and it had been ruled out. However, Padgett
promised some improvement in the hospitalization in-
surance. Padgett said that the Respondent could not, at
present, afford to give sick leave, but, as the Company
grew, he hoped eventually to have paid sick leave. Re-
garding the requirement for working the day before and
the day after a holiday, Padgett said that this was necessa-
ry to keep the men from leaving at noon on the day before
a holiday or returning at noon on the day after. However
he agreed that an exception might be made when an em-
ployee was sick and brought in a doctor's certificate. The
Respondent's workweek started on Saturday, and, there-
fore, no overtime was paid for that day as such. Time
over 40 hours a week was paid for work on Friday, as
well as time in excess of 8 hours in a day. The employees
asked for a change to make Monday the first day of the
week and Saturday the last day so that the men would get
overtime pay for Saturday work. Padgett refused to make
this change, explaining that the Respondent's workweek
had to conform to that of IBM, which was set up that
way.
Saxer testified that between September 21 and Oc-
tober 8, 1966, "1 got the guys in kind of an uproar and
talking to people to go hit up people for money and this is
what we did ...." If this were true, management was
unaware of any turmoil. No one other than Saxer testified
that he had talked to management about a wage increase
in this period of time. Porschien did testify that he was
aware of no labor problems during that period. However,
Vice President Vasta testified that, when he would be in
the metal shop during that period, he would notice people
standing around talking and that they would break up the
group when they would notice that he was there. Vasta
spoke to Porschien about this and Porschien thereafter
had occasion to break up such groups at times himself.
At about 8 a.m. on Saturday, October 8, 1966, Saxer
approached Porschien and asked for a raise in pay.
Porschien told him that he had talked to Saxer about a
raise 3 or 4 weeks before that and that the Respondent
was going to keep the rate as it was for a while. Saxer
replied that, this being the case, he was turning in his
resignation as of the end of the week (that is, the following
Friday). Porschien said, "All right, fine, Bob."
At about 9 a.m. that morning, according to Porschien,
Saxer asked Porschien if he might go home early that day.
Porschien testified that he had granted Saxer permission
to do so.K Saxer testified that, after he had told Porschien
that he was resigning, he had gone back to work and had
told the other men that he had quit, that word got around,
although he conceded that he had had a second conversation with
Porschien about an hour after the first one He did not testify as to the
subject of his second conversation with Porschien.
ELECTROMEC DESIGN & DEVELOPMENT CO.
and that an employee by the name of Bradley had come
to him and said that he had heard that Saxer had quit
because he did not get a raise and that this would be a
good time to wake up management. (One employee
quoted this as "shake up" rather than "wake up.") Saxer
further testified that Bradley had suggested that they all
go home at noon and that he (Saxer) had replied, "If you
guys go home, I will go home," and, "so we went around
to each person." Saxer continued:
We all decided-we all went up individually and told
management we were going home at 11:24 a.m. I did
not go ahead and I wasn't - I was asked - I wasn't
told-be-Carl [Porschien] said, "Are you going
home too?" I said, "I am going home too."
I am unable to give this garbled testimony full credit.
Bradley was not called as a witness, and I find it difficult
to dovetail Saxer's testimony with the testimony of other
witnesses, and I am not disposed to credit Saxer's
testimony as to Bradley's alleged statement to him, ab-
sent corroborative evidence. I not only find that Saxer,
himself, did ask permission to leave early, but I also find
that Saxer was the first of the group to ask permission to
leave early. It seems likely, therefore, that any decision
by the other employees to go home early was made after
Saxer had already received permission to leave early
since notification to the Respondent of intent' to leave
early was made by Pickelman, Mooney, and Gilbert
anywhere from 1 hour to an hour and a half after Saxer
had received permission from Porschien to leave early.
According to Mooney, at about 10 or 11 a.m. that day,
Porschien not being in the metal shop at the time, Mo-
oney went to Leadman Starr,'' and asked Starr if it was all
right to go home after 5 hours of work, and that Starr had
said, "Yes." Starr, however, testified that Mooney had
come to him and said, "It's a nice day," and that he was
going to take the afternoon off, and that he (Starr) had
replied, "It is a nice day. .. I might take it off myself. ..."
Starr did not quote Mooney as making any reference
to "5 hours of work."r"The next to speak of leaving early
was Gilbert. Gilbert told Starr that he was going home to
check on his wife to see if she was doing what the doctor
had ordered for her high blood pressure. Gilbert testified
that Starr had answered, "Sure. Go ahead." Starr con-
ceded that he had not refused permission to Gilbert. Fol-
lowing Gilbert's notification to Starr, Pickelman ap-
proached Starr. Pickelman testified that he had asked,
`Bud, is it all right if I go home?" And that Starr had an-
swered, "Yes. Why don't you all go home and then we
can go too."" Starr testified that he had not objected to
Pickelman's leaving. Apparently Starr did not know that
Saxer had already received permission from Porschien to
leave early. The evidence indicates that Saturday work
was more or less optional, although the Respondent did
not like to have everyone take that day off. It is also ap-
parent that the Respondent probably would not have
found fault if only three of the employees had gone home
early.
At 11:22 am., a group of men, about 10 in number, in-
cluding all those in the machine shop, plus I from the
" Some witnesses called Starr a foreman. I find that he was a supervisor
and that he had authority to approve requests to leave early.
"' Gilbert, at one point, testified ". . word got around to me that
Robert Saxer had given his termination because of not having received a
raise A little later someone told me that it had been decided to try to
shake up management, that we would all go home after five hours' work
769
sheet metal shop (Will Mooney, brother of Davy Mo-
oney, the tool-and-die maker), lined up at the timeclock
intending to punch out at 11:24 a.m., which was just 5
hours after starting time, 6:24 a.m. At this point, Starr
went to them and asked, "What's going on here?" They
replied that they were all going home. Starr, who had not
seen Porschien around, then went in search of him and
found him in the engineering department. Porschien
returned with Starr immediately and asked the men what
was going on. Mooney or one of the other men said that
they were going home. Porschien's testimony at this point
became difficult to understand, but I deduce from all the
evidence that Porschien told Saxer that he had un-
derstood he was going to leave at noon and that Porschien
questioned why he was punching out at 11:24 a.m. in-
stead of 11:48 a.m., which was lunchtime. Mooney spoke
up to say, in effect, that it would be easier to compute the
pay for 5 hours' work. At 11:24 a.m., therefore, the group
punched out and left.
Porschien and Starr remained until the end of the shift.
President Padgett was out of town that day, and ap-
parently Vice President Vasta was not at the office
D. The Discharges
Porschien informed an IBM manager (Walsh) on Satur-
day of the walkout and the latter undertook to notify
Respondent's officials. Walsh attempted to reach Vasta
by telephone, but Vasta was not at home and did not
return home until that evening. Then, returning Walsh's
call, Vasta learned of the walkout and attempted to reach
Padgett but was unsuccessful until Sunday, October 9.
When Vasta, on Sunday, did tell Padgett about the walk-
out, Padgett told Vasta to go to the office with the men
in the personnel department and to try to reach by
telephone each employee who had walked out to deter-
mine the reason for the walkout. Vasta went to the office
with two personnel men and they divided the list of
names. Vasta, himself, telephoned Saxer, Gilbert, and an
employee named Jinn, Bates.
When Vasta spoke with Saxer on the telephone, ac-
cording to Vasta, he asked, "What happened yesterday,
Bob?" Saxer said, "What do you mean?" Vasta said,
"Well, apparently you had left early." Saxer replied,
"Yes, that's right." Vasta asked, "Why?" Saxer an-
swered, "I felt like taking the afternoon off." Apparently,
Saxer, at this time, did not say that Porschien had given
him permission to leave early. Vasta asked, "Did
everybody in the shop feel like taking the day off? You
realize everybody walked off the job." Saxer said that he
did not know why the others had gone home, that Vasta
would have to ask them. Vasta asked Saxer to come to
the office to talk to him about the matter. Saxer refused,
saying that there was nothing to talk about.
When Vasta telephoned Gilbert, he asked him why he
had walked off the job. According to Vasta, Gilbert an-
swered that he was not happy with a 15-cent differential
between his rate and the top rate in the shop at the time
(Pickelman's rate). Vasta asked if that was the only
. " Apparently, the 5-hour figure was set by the men, but I find that
Starr was not apprised thereof.
I I If Starr made such a statement (and I question the accuracy of the
quoted words), I find that Starr was using sarcasm and did not mean what
the words suggest.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason he had walked out and, according to Vasta, Gil-
bert answered, "Yes."12 Vasta asked Gilbert to come to
the office to talk to him about it personally, but Gilbert
said that he did not want to do that but that he would see
V asta the next day as a group.
When Vasta reached Bates on the telephone and asked
why Bates had left work the day before, Bates said that
the situation at the shop was a mess, that he was unhappy
with the whole situation, and that he did not know what
he was going to do. When Vasta invited Bates to come to
the office to talk with him, Bates did so, and Vasta again
asked why he had left early on Saturday. Bates, according
to Vasta, answered that ever since the meeting of Sep-
tember 21, which he had not attended, the other men in
the shop had given him a hard time, refusing to talk to him
or have lunch with him, and that the only reason he had
left early on Saturday was that he had not only to work
with these men but to live with them.
Vasta and the personnel men were unable to reach
Pickelman or Mooney on Sunday, but Assistant Person-
nel Director Larry Bunker reached two other employees
who had walked off the job-Jim McKenna and Will Mo-
oney. McKenna, when asked, told Bunker that he had an
appointment and had taken off. He admitted that he had
not asked or told anyone representing management about
it. Will Mooney's reply to Bunker's question was that he
was tired of working overtime. Bunker reported McKen-
na's and Will Mooney's answers to Vasta.
That Sunday evening, Vasta met with President
Padgett and expressed the opinion that all the men who
had walked off the job should be discharged. Padgett, for
practical reasons, apparently was inclined to be selective.
On arrival at the plant on Monday morning, Vasta told
Porschien to pull the cards of the men to be discharged.
Vasta had selected for discharge the two Mooneys, Gil-
bert, Pickelman, and Saxer, but, when Porschien told
Vasta that he thought Will Mooney liked his job and was
just "caught up" in the walkout, Vasta omitted him from
the list. Porschien pulled the cards of Dave Mooney, Gil-
bert. Pickelman, and Saxer before the men arrived for
work on Monday, October 10. A few minutes later
Porschien told Vasta everything he knew about the walk-
out, including the fact that Saxer had asked to leave
early. 1 3
Mooney, having received an injury in a boating ac-
cident over the weekend, telephoned Starr on Monday
morning to say that he would not be in. Starr told Mooney
to telephone again later because the tool-and-die men
were having a meeting with management.
When Saxer, Pickelman, and Gilbert arrived for work
on Monday, their timecards were missing from the rack.
Porschien told them their cards had been pulled and to
wait at the bench The three had coffee until starting time
(6.24 a.m.); then Starr came to tell them not to put on
their aprons or open their toolboxes until they found out
what was going on. At about 7 30 or 7:45 a.m., Porschien
told the three men to go upstairs to the conference room
because Padgett wanted to talk to them. In the con-
ference room, Padgett, Vasta, and Bunker were present
when Porschien and the three employees joined them.
The accounts of the three employees differed from that
given by witnesses for the Respondent in that each of the
1' 1 consider it likely that Gilbert also told Vasta tnat he went home
early to check on his wife as he had told Starr because Padgett, who
learned the facts from Vasta, knew of that excuse
three testified that they were not asked their reasons for
the walkout on Saturday but that Padgett had looked
through some papers he had and then had called upon
Porschien to speak and that Porschien had told them that
the Respondent no longer needed their services as tool-
and-die makers. Padgett testified that, after Porschien
had made his statement, Padgett had remarked that he
would like to have the men give their reasons for walking
off the job, but that he first turned to Saxer and asked if it
was true that he had tendered his resignation as of the fol-
lowing Friday, and, when Saxer had said it was true,
Padgett said that the Respondent was accepting his
resignation at once and that he would be paid to noon that
day. Padgett testified that he then asked Gilbert why he
had left the job and that Gilbert had replied that his wife
had high blood pressure and that he felt he should go
home and check on her, that he had asked Pickelman why
he left the job on Saturday, and that Pickelman had an-
swered that he was tired and wanted the day off. Padgett
testified that he told Pickelman that he was giving the
men a chance to give an honest reason for leaving and
that the reasons given did "not hold water" as far as he
was concerned and that it was his decision to terminate
them at once. Vasta testified that Padgett told Pickelman
and Gilbert that they, too, would be paid to noon. The dif-
ference in testimony could be accounted for by dif-
ferences in memory. It is possible that the papers which
Padgett was examining were management's accounts of
what had been said and done by the four men and that, in
retrospect, he remembered these and confused them with
such statements of the men as were made at the meeting.
But on the other hand, I am not satisfied that the dischar-
gees were able to remember everything that occurred at
this meeting. Pickelman was unable to remember, and
therefore could not deny, that Padgett had asked him his
reason for leaving on Saturday, but he was sure that he
did not open his own mouth at all at this meeting. The
resolution of the credibility issue is not vital because I
find that Padgett apparently had the right information,
whether he received it from the men themselves at that
meeting or from reports of supervisors.
When Porschien said that the Respondent no longer
needed their services as tool-and-die makers, Saxer asked
if that meant they were being discharged. Saxer quoted
Padgett as answering, "In a sense." Saxer asked Padgett
if they were going to be blackballed. Padgett replied,
"Absolutely not," that they were all family men, that they
all had to make a living as he did, and that he had no
desire to blackball them. The men were then sent to the
office for their termination slips. The slips read that the
services of tool-and-die makers were no longer required.
According to Padgett. the slips also stated that the men
would be rehired but not as tool-and-die makers. After
the three men had picked up their termination slips, they
checked out their toolboxes and left.
After Starr had told Mooney on the telephone (when
the latter called in to say that he would not be in) that a
meeting of the tool-and-die makers was being held, Mo-
oney got in his car and went to the plant. When he arrived
at the parking lot, Pickelman, who was on his way out
after having been terminated, told Mooney that they had
been discharged Mooney went to Porschien, who was in
11 Porschien had been away from home and had not communicated
these facts to Vasta before Monday
ELECTROMEC DESIGN & DEVELOPMENT CO.
the parking lot, and asked Porschien if he, too, had been
discharged. Po, schien answered, "Yes." Mooney asked
Porschien for the reason and Porschien replied, according
to Mooney, "Well, Dave, we can't have everyone going
home at noon every time somebody quits." Mooney
asked if that was the reason they had been terminated,
and Porschien then said that the reason was that their ser-
vices as tool-and-die makers were no longer needed.
E. Analysis and Conclusions
At the hearing, counsel for the Respondent stated that
the "four men were discharged because of the fact that
they were overqualified for the work and because they
had walked off the job without notice." Lack of notice,
alone , would not be cause for reprisal against protected
concerted activity.'4 However, from counsel's statement
immediately preceding the quoted one (that at no time
was management told the reason for the walkout), I find
it likely that the Respondent was combining lack of notice
with failure to state any reason and that Respondent was,
in effect, saying that it did not know of any labor dispute
and so did not know that the employees were engaged in
protected concerted activity. This is substantiated by
Respondent's brief to the Trial Examiner, in which
Respondent argues that the dischargees did not engage in
concerted activities; that the concerted activity, if found,
was not protected concerted activity; and that Respond-
ent did not know that its employees were engaged in
protected concerted activity.
The theory of Respondent that the four dischargees did
not engage in concerted activity is predicated on the fact
that Saxer had quit and that the others had asked permis-
sion to leave and were not, therefore, leaving for the same
reason as the rest of the men, even if the action of the rest
was concerted. This argument does not, I believe,
withstand scrutiny, because, if the four could be severed
from the concerted action of the others, the Respondent
would, illogically, be punishing the only four men who
had received approval to leave early, since Saxer also had
received permission to be off. If, therefore, the case of the
dischargees was severable, the Respondent would be say-
ing that its permission to them to leave early should not
have been relied on by the dischargees. I doubt that the
Respondent intends to justify the discharges on the
ground that it deceived the four men and led them to leave
early so that it could discharge them for leaving early.
That the walkout was the result of concerted action is
not seriously disputed. The very fact that the men all
gathered at the timeclock at exactly 11:22 a.m. and
waited until exactly 11:24 a.m. in order to punch out ex-
actly 5 hours from the beginning of the shift was enough,
without more, to establish the fact that the action was
concerted.
The Respondent's remaining contentions, that the ac-
tivity was not protected concerted activity and that
Respondent did not know the activity was protected con-
certed activity, furnish the real issues in the case. I do not
separate the ultimate fact of the existence of protected
"N L R B. v Pioneer Plastics Corp , 379 F 2d 301 (C A. 1), N.L.R B.
v. Washington Aluminum Co , Inc, 370 U S 9; West Coast Casket Com-
pany, Inc., 97 NLRB 820, enfd 205 F 2d 902 (C A 9), Seyfert Foods
Co, 109 N LRB 800.
"N L R B v Phaostron Instrument and Electronic Co , 344 F 2d 855
(C A 9); Indiana Gear Works, 156 NLRB 397; Walls Manufacturing
771
concerted activity from the Respondent's alleged lack of
knowledge thereof because, if the facts are such that a
reasonable person could infer that the activity was for a
purpose which is protected by the Act, the Employer's
asserted ignorance thereof could not be seriously be-
lieved.15 I am assuming, of course, that the cause for the
discharge is not clearly separable from the activity found
to be protected concerted activity. Conceivably an em-
ployer might discharge an employee for a cause clearly
not related to concerted activity although at a time when
the employees had engaged in concerted activity. This is
not such a case, however. Here, the men discharged were
discharged for their part in what may be conceded to be
concerted activity. Therefore, the issue to be decided is
whether or not the concerted activity was protected con-
certed activity.
The General Counsel argues:
It is evident that the purpose of the strike was to
protest Respondent's refusal to grant the employees
certain benefits. Should Respondent contest this, it
is clear that Respondent was aware that the strike
was precipitated by its refusal to grant Saxer a wage
increase.
I do not find the evidence so clear that the purpose of the
strike was to protest the refusal of the Respondent to
grant "certain benefits." The allusion presumably is to
the five improvements proposed by the employees to the
Respondent at the meeting of September 21, 1966. To
me, it would appear to be sheer speculation to say that the
walkout had for its purpose the enforcement of the five-
point demands made on September 21, 1966. Following
that date, nothing further appears to have been said about
any of those demands. On the other hand, if Saxer's
testimony were to be accepted, he was concerned, after
that date, with "stirring employees up to hit manage-
ment" for an increase in pay. This may or may not have
been the case, but if it is, the scope of Saxer's activity is
not revealed. Pickelman, who had already received a
raise at some time in September 1966, did not testify to
having made any further request for a raise. In fact, the
only one who testified that he had done so was Saxer,
who did so on the day of the walkout.'6
Was it clear, then, as the General Counsel secondly
postulates, that the walkout was caused by Respondent's
refusal to grant Saxer's request for a wage increase? In
my opinion, a difference should be drawn between a
strike caused by Respondent's refusal to grant Saxer a
wage increase and a strike to support Saxer's demand for
a wage increase, because the former furnishes an impetus
for the strike but does not necessarily furnish the purpose
of the strike. The distinction is not a mere quibble. It is,
in essence, the one which the court made in Joanna Cot-
ton Mills Co. v. N.L.R.B.,17 where the court declined to
enforce the Board's Decision and Order, finding that the
"purpose" of the concerted activity was to be distin-
guished from the "motive" of participants. It maybe con-
ceded that a strike to support a wage demand, even
though of only one employee, would be concerted activity
protected by the Act, because it is established law that
Company, Inc., 137 NLRB 1317, West Coast Casket Company, Inc , 97
NLRB 820, 824, enfd 205 F 2d 902 (C.A 9)
'fi 1 am not disposed to credit Saxer's uncorroborated testimony if he
was implying that all the others had actually followed his prompting to ask
for wage increases.
17 176 F 2d 749 (C A 4).
336-845 0 - 70 - 50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees may make common cause to support the
grievance of one employee.' 8
Although Saxer's request for a pay increase and the
walkout are brought into juxtaposition by their occur-
rence on the same day, no affirmative evidence requires
the inference that the walkout had, for its purpose, the en-
forcement of a demand for a wage increase for Saxer, and
some evidence repels such an inference. When Vasta and
the Respondent's personnel man telephoned employees
to learn the cause of the walkout, not one employee gave
Respondent the denial of a wage increase to Saxer as a
reason for the walkout After the refusal to increase
Saxer's wages, Saxer resigned. The men all knew of
Saxer's resignation; so it would have appeared to them to
be too late to support a demand for a wage increase for
Saxer in the very week he was terminating. Nor did any-
one claim that wages generally should be increased or
that general dissatisfaction with, wages was the cause of
the walkout. Only one employee-Gilbert-said anything
about wages at all, and he expressed dissatisfaction
between his own rate and that of Pickelman, but, when
asked at the hearing for his reason for going home early,
he testified that the only reason he gave was that he was
going home to check on his wife who had high blood pres-
sure.
Tending to support a conclusion that the reason for the
walkout was not dissatisfaction with wages is the fact
that, when the employees were about to clock out on Oc-
tober 8, 1966, and were asked by Porschien why they
were leaving, no one said anything about wage rates or
other grievances. In fact there was mostly silence. All ap-
peared inclined not to reveal any reason for the walkout.
As the court said in N.L.R.B. v. Ford Radio & Mica Cor-
poration, 258 F.2d 457 (C.A. 2) at page 465:
However, where the employer from the facts in its
possession could reasonably infer that the employees
in question are engaging in unprotected activity,
justice and equity require that the employees, if they
chose [sic] to remain silent, bear the risk of being
discharged.
It is true that Porschien surmised that his conversation
with Saxer on the morning of October 8, when he
declined to give Saxer an increase and accepted Saxer's
resignation, had something to do with the reason for the
walkout, but this surmise does not mean that he had
reason to believe that the walkout was to compel the
Respondent to give a wage increase to Saxer or to make
any other demand in view of Saxer's resignation. As
Porschien told Mooney in the parking lot when the latter
asked why they were discharged, "Well, Dave, we can't
have everyone going home at noon every time somebody
quits." From Respondent's point of view, Saxer might
have brought about the walkout in retaliation for
Porschien's failure to urge Saxer not to tender his resigna-
tion or perhaps Porschien's failure to say even a kind
word of regret that Saxer should choose to resign. Con-
certed activity which is motivated by the desire of one
man to retaliate against a supervisor or to embarrass his
employer is certainly not the type of activity that
deserves the protection of the Act.'"
18 Carter Carburetor Corp. v N L R B, 140 F 2d 714, 718 (C A. 8),
N L R B v Solo Cup Company, 237 F 2d 521 (C A. 8), Seyfeit Foods
Co, 109 NLRB 800
" Joanna Cotton Mills Co v N L R.B, supra. And See N L R B v
Marshall Car Wheel and Foundry Co., 218 F 2d 409 (C A 5).
I find it difficult to believe that the walkout was an ex-
pression of interest in mutual aid or protection. Never be-
fore had any of the dischargees failed to speak up for
changes in working conditions when they felt it in the in-
terests of the employees to do so, least of all Saxer.
Saxer's reply to Vasta's inquiry as to the reason for the
walkout-that he could answer only for himself (who had
gone home because he felt like it) and that Vasta would
have to get the reasons of others from them-certainly
was not consistent with concerted activity, much less
with protected concerted activity. Saxer's professed
claim to ignorance of the reason of the others in walking
out suggests an intentional deceit, supporting an inference
of malice. The evidence indicates that when Saxer ten-
dered his resignation and Porschien accepted it, Saxer
returned to his bench and informed at least two of the
dischargees thereof and that the word spread As Saxer
testified, after Pickelman had heard the news: "So they
got together, and finally ... Bradley came over to me ...
Bradley said ... this would be a good time to wake up
management. Let's all go home at 11:20-let's all go
home at noon-so we went around and I said, `If you
guys go home, I will go home,' so we went around to each
person." It is a reasonable inference that the dischargees
went to other employees to induce them to leave work
early. Starr saw Mooney that morning on the sheet metal
side of the department conversing with his brother, and
his brother was the only one from that side to walk off
with the employees from the machine shop side at 11:24
a.m. on October 8, 1966. Although Saxer attributed the
suggestion that "this would be a good time to wake up the
company" (or "shake up the company" as Gilbert put it)
to Bradley, I find the evidence fairly convincing that
Saxer and the other dischargees were the ones who urged
others to leave early.
Presumably expecting that they might be suspected of
leading a walkout, each of the four dischargees sought to
protect himself by getting permission to leave early. They
were the only ones who did. I observe, however, that
none of them later sought to argue his case by protesting
that he had been given permission to leave early. This
suggests to me that the four had good reason (despite
Respondent's surface explanation that it no longer
needed tool-and-die makers) to believe that the Respond-
ent had learned that they were the ones who had caused
the walkout and that this was the real reason for their
discharge. Saxer's question put to Padgett, as to whether
or not the Respondent intended to blackball them, suffi-
ciently demonstrates that Saxer knew the real reason for
the discharge and that he realized that, that being the
case, the permission granted to him by Porschien to leave
early would not be a justification for his actions.
If the Respondent discharged the four men for engaging
in unprotected concerted activity, it is immaterial that the
Respondent did not discharge others similarly engaged or
that it gave a reason for the discharge which was not the
basic reason. On all the evidence, I find that Respondent
discharged Mooney, Pickelman, Gilbert, and Saxer"0 for
causing an unprotected walkout. The Respondent gave
other reasons at the hearing for selecting only four of the
20 The Respondent's acceptance of Saxer's resignation as of Monday,
October 10, 1966, rather than as of Friday, October 14, was, in effect, a
discharge, but, absent protected concerted activity, the Respondent could
lawfully discharge Saxer as well as the other three
ELECTROMEC DESIGN & DEVELOPMENT CO.
strikers for termination. These were, in my opinion, just
additional considerations and were not the principal
reason. Since I have found that the concerted walkout on
October 8, 1966, was not a protected concerted activity,
I conclude that the Respondent did not interfere with the
rights of employees guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
773
2. The walkout on October 8, 1966, was not a con-
certed activity protected by Section 7 of the Act.
3. Respondent has not violated Section 8(a)(1) of the
Act by discharging Wilfred F. Gilbert, Davy J. Mooney,
Charles C. Pickelman,Jr., or Robert G. Saxer.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its en-
tirety.