Enterprise Products, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 946 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enterprise Products, Inc. and Marco G. Cibrian.
Case 21-CA-19950
September 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On June 25, 1982, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Enterprise
Products, Inc., Bell Gardens, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
In adopting the Administrative Law Judge's findings and conclusions
that Marco Cibrian was discharged in violation of Sec. 7 of the Act, we
find it unnecessary to rely on his analysis of whether Cibrian's statement
was a threat to engage in a work slowdown and thus outside the protec-
tion of Sec. 7. The record reflects that the conduct at issue occurred in
the context of a meeting called by Respondent's president. Ron Spicer.
who informed the assembled employees that better quality as well as
higher levels of production would be required but that, due to economic
conditions, no ,wage increases could be granted. Spicer, however, pro-
posed an alternative solution: that, if the employees agreed, Respondent
would award them tickets to athletic events or Disneyland, by way of an
incentive. Cibrian, whose opinion was the first solicited by Spicer, re-
sponded in Spanish, his remarks translated to Spicer as: "Marco don't like
baseball. He want more money. He don't get more money, he don't make
better production." We find that Cibrian's remarks (as translated by Re-
spondent's supervisor, Villar) cannot be construed as a threat to slow
production. Rather, given the circumstances of Spicer's announcement
and his solicitation of employee opinion, Cibrian's remarks addressed to
Spicer and the other assembled employees only reflect that he would be
hard pressed to improve production when any wage increase was, at best,
to be converted to a trip to the ball park. Accordingly, inasmuch as we
find Cibrian's conduct to be concerted and protected, we need not pass
on the Administrative Law Judge's discussion of the "effect of employee
improprieties committed while engaging in protected concerted activi-
ties." (ALJD, sec. II, par. 21.)
264 NLRB No. 125
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Los Angeles, California,
on March 23, 1982. On September 22, 1981,1 the Region-
al Director for Region 21 of the National Labor Rela-
tions Board issued a complaint and notice of hearing,
based upon an unfair labor practice charge filed by
Marco G. Cibrian 2 on February 4, alleging a violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq., herein called the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
neses, to argue orally, and to file briefs. Based upon the
entire record, upon the oral arguement and legal memo-
randum filed on behalf of the General Counsel and upon
the brief filed on behalf of the Respondent, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Enterprise Products, Inc., herein
called Respondent, has been a corporation engaged in
the manufacture and wholesale distribution of wire and
metal products, with a facility located at 6875 Suva
Street, Bell Gardens, California. During the calendar
year preceding issuance of the complaint, in the normal
course and conduct of its business operations Respondent
sold and shipped goods, materials, and supplies valued in
excess of $50,000 directly to customers located outside
the State of California. Therefore, I find, as admitted in
the answer to the complaint, that at all times material
Respondent has been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The only issue in this case is whether Respondent dis-
charged Marco Cibrian on February 3 for a reason pro-
scribed by Section 8(a)(1) of the Act. That issue, in turn,
is based upon events of a meeting on February 2, during
which Cibrian made certain disputed remarks that Re-
spondent contends constituted an unprotected threat to
slow down work.
Prior to 1980, Respondent had followed a practice of
awarding monetary Christmas gifts or bonuses to its em-
ployees. However, due to economic problems arising
during 1980, Respondent had not granted any seasonal
bonuses to its employees at the end of that year. Further,
Respondent also had determined that its economic plight
was such that it could not grant wage increases to em-
ployees at that time. Ron Spicer, Respondent's presi-
I Unless stated otherwise all dates occurred in 1981.
a The spelling of the Charging Party's last name is amended to con-
form to the way that he spelled it when he was called as a witness and in
conformity with the correction in the legal memorandum of counsel for
the General Counsel filed after the conclusion of the hearing.
946
ENTERPRISE PRODUCTS, INC.
dent,3 testified that, concerned about production levels
and the number of production mistakes being made, Re-
spondent had formulated a program whereby employees
would be given tickets to athletic events and other
public places, such as Disneyland, as an incentive for in-
creased production and tbfor reduction in production mis-
takes. On February 2, Spicer met with groups of Re-
spondent's employees to propose the incentive program
to them for their acceptance. Thus, as Spicer testified,
the purpose of these meetings had been "to find out [the
employees'] opinion on the plan, not to [announce its im-
plementation]."
Spicer testified that, during the meeting attended by
Cibrian, he (Spicer) had explained that Respondent's eco-
nomic circumstances had prevented it from awarding the
usual seasonal monetary gift at the end of 1980 and
would preclude raises from being granted to employees
at that time, had described the incentive program, and
had asked each employee for his or her opinion of that
proposal. At the meeting that he had attended Cibrian
had been the first employee whose opinion had been
sought. All agree that it had been his response that had
led Spicer and Vice President of Finance Steve Lukebaw
to decide to discharge Cibrian.
Because his native language is Spanish Spicer's ques-
tion had been put to Cibrian through Supervisor Antonio
Villar, who had also translated Cibrian's answer into
English for Spicer's benefit. Cibrian testified that, when
asked for his opinion of the proposed plan, he had an-
swered merely, "More work, more money." However,
Villar testified that Cibrian had responded, "I don't like
baseball. What I want is more money. No more money,
no more production." Villar testified that, in repeating
Cibrian's answer in English, he had translated: "Marcos
don't like baseball. He want more money. He don't get
more money, he don't make better production." 4 Spicer
testified that in translating Cibrian's response Villar had
said: "I don't like baseball. No more money, no more
production."5
The General Counsel called two witnesses-Cruz
Flores and Mauricio Hernandez-to corroborate Ci-
brian's account of what the latter had said in response to
Spicer's invitation for him to express his opinion of the
proposal. Each one testified that Cibrian had responded
that day by saying, "More work, more money." In addi-
tion to Spicer and Villar, Respondent called Plant Super-
intendent James D. Jackson who testified that, when
translating Cibrian's response, Villar had recited that
"Marcos said he would not do anymore production with-
out more money."
Spicer agreed that, when asked their opinions of Re-
spondent's proposal, other employees had expressed a
I It is admitted that, at all times material, Spicer had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent
within the meaning of Sec. 2(2) and (13) of the Act
4 In a pretrial affidavit, Villar had slated that. in translating Cibrian's
remark into English, he (Villar) had said: "I don't like baseball What I
want is more money If the Compans don't pay me, I don't do more pro-
duction."
5 With reference to Villar's translation of Cibrian's response, in a pre-
trial affidavit Spicel had stated: "Antonio Vlllar translated that Cibrian
had said that he did not like baseball and if the Company did not pay him
more, he would not do more production."
desire for raises. Moreover, Spicer testified that the in-
centive program which he had proposed that day never
had been put into effect by Respondent "[b]ecause the
employees could not agree upon if they wanted to do it
or not."
As must be obvious, there is a threshold question here
concerning what Cibrian had said in response to Spicer's
question although, as discussed below, in the final analy-
sis it really is not determinative of whether the Act was
violated by Cibrian's termination. However. to the extent
that its resolution may be viewed as significant, I con-
clude that Villar's account of Cibrian's response is the
more credible version of what had been said that day.
The response described by Villar-that Cibrian wanted
more money and that more production could not be ex-
pected without it-is more responsive to the question
posed by Spicer than is the terse one described by Ci-
brian and his supporters. Further, Flores had told a
Board agent, during investigation of the charge in this
matter, that Cibrian's February 2 response had been
"something like 'uno trabajo con menos deseo sin au-
mento."' ("one works with less enthusiasm without a
raise.")-an account not consistent with Flores' and Ci-
brian's description of the latter's purportedly few words,
and one more consistent with Villar's description. Final-
ly, in the final analysis, the testimony of the General
Counsel's witnesses tends to corroborate Villar's descrip-
tion of what Cibrian had said: that if Respondent expect-
ed more work it would have to pay more money. Or,
put in other words, without more money, more work
could not be expected-"uno trabajo con memos deseo
sin aumenta."
Villar appeared to be a credible witness. The minor
discrepancies between his testimony concerning Cibrian's
words at the meeting and his pretrial affidavit, as well as
between Villar's and Spicer's accounts of the translation
into English and between Spicer's testimony and affida-
vit concerning that translation, are insignificant and are
ones likely to occur, given the normal imperfection of
memory, with even the most honest of witnesses. All of
these accounts convey essentially the same thought: that
Cibrian had been unhappy with the proposal, that he
wanted more money and that, without more money,
more production would not follow. I credit Villar's de-
scription of what Cibrian had said on February 2 in
reply to Spicer's question during the meeting that day.
There appears to be an implicit assumption here that, if
Cibrian had said on February 2 what Villar described
him as having said, the Respondent's termination of him
for his statements would not constitute a violation of the
Act. However, to the extent that it may exist, such an
assumption is not a warranted one.
In the first place, the subject of the February 2 meet-
ings, and the one about which Cibrian's opinion had been
sought, had been a proposed program providing benefits
contingent upon increased production and reduced pro-
duction mistakes. Thus, the benefits of the program, had
it been implemented, would have become one of the
"emoluments of value or other benefits accruing to [Re-
spondent's] employees out of their relationship with [Re-
spondent]." N.L.R.B. v. Detroit Resilient Floor Decorators
947
DECISIONS OF NATIONAL L ABOR RELATIONS BOARD
Local 2265 [Mill Floor Covering], 317 F.2d 269, 270 (6th
Cir. 1963). More specifically, being based upon increased
production and reduced production mistakes, the pro-
gram's benefits would have been "so tied to the renumer-
ation which employees received for their work that [the
program would have been] in fact a part of it [and] in
reality wages ... ." N.L.R.B. v. Wonder State Manufac-
turing Company, 344 F.2d 210, 213 (8th Cir. 1965). As
the program had been intended to apply to all of Re-
spondent's employees, it was encompassed within the
Section 7 term "mutual aid or protection." "Few topics
are of such immediate concern to employees as the level
of their wages." Eastex, Inc. v. N.L.R.B, 437 U.S. 556,
569 (1978). For it is one of those "issues that settle an
aspect of the relationship between the employer and em-
ployees." Allied Chemical & Alkali Workers of America,
Local Union No. I v. Pittsburg Plate Glass Company,
Chemical Division, 404 U.S. 157, 178 (1971). Consequent-
ly, as Cibrian has been invited to express an opinion on a
proposed wage program his remarks had pertained to a
subject protected by the Act and, thus, had constituted
activity protected by the Act.
In this regard, one point is worth pursuing in some-
what more detail. Cibrian had been asked for an opinion
on the proposed incentive program. But the portion of
his answer about which Respondent complains had per-
tained to another subject: the, at least, temporary suspen-
sion of wage increases. That had not been a subject con-
cerning which Spicer had sought the employees' opinion.
Yet, that Cibrian's answer had been partially nonrespon-
sive to Spicer's question does not serve to deprive it of
statutory protection in the circumstances provided in this
case. While the employees had been aware that they had
not received a 1980 Christmas gift or bonus, so far as the
record discloses they had not been aware prior to Febru-
ary 2 that their potential for receiving wage increases
had been suspended. Thus, the meetings conducted that
day had provided them with their first knowledge of that
decision and, concomitantly, with their first opportunity
to protest it. It is settled that "when the exercise of a
function of management affects conditions of employ-
ment, the employees have a right to protest the particu-
lar action taken." Hagopian & Sons, Inc. v. NV.L.R.B, 395
F.2d 947, 951 (6th Cir. 1968). More specifically, "dissatis-
faction due to low wages is the grist on which concerted
activity feeds." Jeannette Corporation v. N.L.R.B., 532
F.2d 916, 919 (3d Cir. 1976). The fact that Respondent
had a lawful right to discontinue granting wage increases
does not diminish the statutory right of its employees to
protest its having done so. For like protests concerning
lawfully motivated discharges, see N.L.R.B. v. John S.
Swift & Company, Inc., 277 F.2d 641, 646 (7th Cir. 1960),
employees have a protected right to protest lawful deci-
sions to terminate or to suspend a practice of granting
wage increases.
In the circumstances, it was not illogical for Cibrian to
have chosen to have voiced his protest about the wage
increase suspension decision in connection with his
answer concerning the acceptability of the incentive pro-
posal. Both subjects had been covered by Spicer during
his remarks prior to putting his question about the incen-
tive proposal to the employees. In fact, from Spicer's an-
nouncements, it logically would have appeared to an em-
ployee that these two subjects were related: that Re-
spondent had chosen to propose the incentive program
as a result of its decision to eliminate seasonal gifts or bo-
nuses and wage increases. That Cibrian had so viewed
the matter when he had answered that day is evident
from examination of his full answer as related by
Villar-that the proposed incentive program was unac-
ceptable because he did not like baseball and that only
more money would be an effective incentive for in-
creased production, which, of course, Spicer had an-
nounced as having been one of Respondent's two reasons
for having proposed the incentive program. 6 In these cir-
cumstances, the fact that Cibrian had raised both the sus-
pension of wage increases and the undesirability of the
proposed program, in response to Spicer's question re-
garding the latter, does not serve to deprive the objec-
tive of Cibrian's answer from its protection under the
Act. Both were matters affecting all of Respondent's em-
ployees and, thus, comments concerning both subjects
were for "mutual aid or protection" within the meaning
of Section 7 of the Act.
Therefore, I conclude that the objects of Cibrian's re-
marks on February 2 were ones encompassed by the em-
ployer-employee relationship and were ones protected by
the Act.
However, a conclusion that the object of an employee
protest is one protected by the Act does not terminate
analysis of whether particular activity in pursuit of that
object is likewise protected. "In order for activity to be
protected by the Act, it must be concerted in nature."
National Wax Company, 251 NLRB 1064 (1980). With
regard to this area of analysis, Respondent argues, in es-
sence, that Cibrian's statements on February 2 had not
disclosed concern with the ability of Respondent's em-
ployees generally to obtain wage increases, but rather
had arisen from his concern for his own personal ability
to continue receiving them. In such circumstances, and
inasmuch as there is no evidence that other employees
had authorized Cibrian to demand continuation of the
practice of giving wage increases nor that any other em-
ployee had endorsed Cibrian's remarks that no more
work could be expected without more money, argues
Respondent, there is no basis for concluding that Ci-
brian's remarks, in response to Spicer's question to him,
had constituted "engag[ing] in other concerted activities"
within the meaning of Section 7 of the Act. However, in
making this argument, Respondent overlooks certain cir-
cumstances in this case which render too restrictive its
argument concerning the scope of those statutory words.
If no more had occurred in this case than a single em-
ployee's announcement of a refusal to meet increased
production standards without a raise, then Respondent
might well prevail, at least in virtually any of the circuit
courts of appeals. While the Board has adopted the view
that the "jurisdictional requirement" of concerted activi-
I It hardly could have come as a shock to Spicer that Cibrian equated
more money with more work. For Spicer testified that, when Cibrian had
requested wage increases in the past, "he always said that. you know, he
needed more money to support his family and he would work harder if
he had more money; he could try harder."
948
ENTERPRISE PRODUCTS, INC.
ty, Krispy Kreme Doughnut Corp. v. N.L.R.B., 635 F.2d
304, 310 (4th Cir. 1980), is satisfied by a showing only
that individual employee action "directly involves the
furtherance of rights which inure to the benefits of
fellow employees .... Cf. Alleluia Cushion Co., Inc.,
221 NLRB 999 (1975)," Anco Insulations, Inc., 247
NLRB 612, 613 (1980), every circuit court of appeals to
consider this issue has rejected that minimal interpreta-
tion and has required that, in addition, there be some
group, group-originated, or group-oriented activity in-
volved. 7 Yet, more than single-employee activity is in-
volved in the instant case.
As concluded above, on February 2, Spicer had pre-
sented a proposal concerning wages and, thus, one that
had been of concern to all of Respondent's employees.
To make this proposal, Spicer had assembled the em-
ployees in groups. He had announced to those groups
that Respondent contemplated making the proposed pro-
gram available to all employees. The groups of employ-
ees had been told that implementation of the proposed
program was conditioned upon acceptance of it by them.
More significantly, implementation of the program was
to be based upon the collective decision of the employ-
ees since, as set forth above, Spicer acknowledged that
the program had never been implemented "[b]ecause the
employees could not agree upon if they wanted to do it
or not." In sum, by its own approach to dealing with its
employees concerning the proposed incentive program,
Respondent had "lumped the[m] . . . together and
viewed [them] as a group," Frank Briscoe, Incorporated v.
N.L.R.B., 637 F.2d 946, 949 (3d Cir. 1981), with regard
to a proposal concerning a matter "affect[ing] more than
[one] individual's interests," Pelton Casteel, Inc. v.
N.L.R.B., supra, 627 F.2d at 28, and one concerning
which the employees were to make a decision "as a co-
herent whole." Id. at 30. That is, by participating in a
group discussion with Respondent concerning a wage
I See Ontario Knife Company v. N.L.R.B., 637 F.2d 840, 843-846 (2d
Cir. 1980); Krispy Kreme Doughnut Corp. v N'L.R.B.. supra, 635 F.2d at
306-310; ARO, Inc. v. .VL.R.B., 596 F.2d 713, 716-718 (6th Cir. 1979);
Pelton Casreel. Inc. v. N.LR.B., 627 F.2d 23, 28 (7th Cir. 1980); Koch
Supplies, Inc. v iNL.R.B., 646 F.2d 1257, 1259 (8th Cir 1981); N.L.R.B.
v Big Horn Beverage, 614 F.2d 1238, 1242 (9th Cir. 1980); Kohls v.
NL.R.B, 629 F 2d 173, 176-177 (D.C. Cir. 1980). Indeed, in the process
of generally supporting the Board's conclusions in Eastex, Inc. v.
N.L.R.B., supra, the Supreme Court refrained specifically from adopting
the Board's view of the minimal prerequisites for qualifying individual
action as "concerted activity." 437 U.S. at 566, fn. 15 A review of the
various courts of appeals' decisions disclose reliance on various tradition-
al methods of statutory interpretation-words of the statute itself, history
preceding statutory enactment, basic burdens of proof analysis-leading
to their conclusion that, in effect, Alleluia Cushion had been decided cor-
rectly in the first instance-that its reversal by the Board, based primarily
on the existence of an employment relationship and "overall public inter-
est," had not been a proper interpretation of the statutory phrase "con-
certed activities." None of the points made by the various circuit courts
of appeals in the above-named decisions have been addressed subsequent-
ly by the Board. Consequently, it cannot be said that the Board has coun-
tered the persuasive reasoning in those cases with better reasons support-
ing the Alleluia Cushion doctrine. Although the Alleluia Cushion doctrine
may be a desirable one, neither the Board nor the courts are free to
modify or add to that legislation which Congress has enacted. See, e g.,
Hospital and Institutional Workers' Union. Local 250, SEIU, AFL-CIO, et
al. (Affiliared Hospital of San Francisco), 255 NLRB 502 (1981). There-
fore, in resolving the question of whether Cibrian had been engaging in
concerted activities, I do not rely on the by-now oft-desparaged Alleluia
Cushion doctrine.
proposal of concern to all of them and by being called
upon to decide collectively whether or not to accept that
proposal, Respondent's employees had become involved
together in a collective decisionmaking process in deal-
ing with Respondent and, accordingly, had been
"engag[ing] in other concerted activities" within the
meaning of Section 7 of the Act.
It is accurate that the record discloses that no other
employee had expressed full agreement with Cibrian's
remark to the effect that, without more money, no more
work could be expected by Respondent. Nevertheless, as
concluded above, the employees' participation in Re-
spondent's February 2 group meetings had been concert-
ed activity. To argue that, in addition, there must be a
showing that every comment uttered by any employee
during the course of such activity must have the specific
approval of at least one other employee, to be concerted,
is to adopt an all-too restrictive interpretation of the stat-
utory requirement that the employees must be engaging
in concerted activity.8 To the contrary, it is settled that
"[t]he activity of a single employee in enlisting the sup-
port of his fellow employees for their mutual aid and
protection is as much 'concerted activity' as is ordinary
group activity." Owens-Corning Fiberglas Corporation v.
V.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969). Neither
the Board nor the courts of appeals nor the Supreme
Court ever have imposed the added requirement that, to
be engaged in concerted activity within the meaning of
Section 7 of the Act, such an employee must also be suc-
cessful in enlisting the support of at least one other em-
ployee.
Of course, Respondent argues that here the evidence
does not support a conclusion that Cibrian had been at-
tempting to enlist the support of other employees when
he had responded to Spicer's question. Yet, that may not
be an altogether accurate portrayal of what had occurred
that day. True, Cibrian's remarks had not constituted an
overt appeal to his coworkers in the sense of having
taken over the meeting, Brutus-like, to make an address
to them seeking sympathy and support. Nevertheless,
prior to his having answered Spicer's question, the as-
sembled employees had been told that implementation of
the proposal was dependent on their acceptance of it. Ci-
brian had been the first employee whose opinion had
been sought during the meeting that he had attended.
Obviously, other employee responses remained to be
heard after Cibrian had completed his own. Accordingly,
an employee in Cibrian's position likely would be aware
that his reasons would be heard and considered by those
who would answer after him. Thus, that he had directed
his answer to Spicer would not have made him oblivious
of its effect on other employees present who would be
listening to what he was saying about the proposal to
Spicer and who would be formulating their own re-
sponses, when their turns came to be called upon for
I Of course, as discussed infra, statutory protection can be lost where
employees, in the course of engaging in protected concerted activity,
engage in conduct or may make statements so serious as to deprive them
of the Act's protection. However, that question is wholly separate from
the determination of whether or not employees are engaging in concerted
activities
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinions concerning the proposal. In such circumstances,
particularly where there is no evidence that the employ-
ees had been aware prior to the meeting that the propos-
al would be made to them and where the format and set-
ting in which they found themselves had been one
chosen by their employer, the fact that Cibrian did not
attempt to take over the meeting and attempt to address
his coworkers directly does not mean that his remarks to
Spicer had not constituted an attempt "to enlist the sup-
port of at least some of his fellow employees at [the
meeting]." F. W. Woolworth Co. v. N.L.R.B., 655 F.2d
151, 153 (8th Cir. 1981). Indeed, Spicer admitted that
some employees, called upon to express opinions after
Cibrian had done so, also had expressed a desire for
raises to continue to be granted.
In any event, even assuming arguendo that Cibrian had
not been attempting to enlist other employees' support
for his position and even if his remarks on February 2
had been generated solely because of his concern with
his own personal ability to secure further wage increases,
his statements to Spicer that day would have been part
of concerted activity in the circumstances present here.
As the Board has stated in connection with employee de-
cisions as to whether or not to cross a picket line, an-
other form of activity protected by Section 7 of the Act,
"the focal point of inquiry . . . must of course be the
nature of the activity itself rather than the employee's
motive for engaging in activity." The Cooper Thermo-
meter Company, 154 NLRB 502, 504 (1965). As discussed
above, Cibrian had been called upon for his opinion as
part of a process whereby the employees would decide
collectively whether or not they would agree to institu-
tion of the incentive program by Respondent. In a real
sense, Respondent had been bargaining with them about
the matter, albeit on a relatively simplistic level as they
had no bargaining agent to act as their representative.
Accordingly, Cibrian's remark had been an integral part
of and inseparable from that process. See, e.g., The Con-
necticut Pen and Pencil Co., Inc., 236 NLRB 1442, 1443
(1978). By making them, he had been engaging in activi-
ty intended for the employees to reach a collective deci-
sion and, consequently, had been engaging in concerted
activity.
In sum, the fact that Cibrian had not been selected as a
spokesman for the employees and even the further fact
that none of them might have agreed with his viewpoint
are not significant in the context of the instant case. Re-
spondent has assembled its employees in an effort to
secure a collective decision regarding a term of employ-
ment which was of interest to all of them. In such cir-
cumstances, remarks pertaining to that employment term
made by individual employees, in the process of arriving
at that collective decision, cannot fairly be characterized
as being personal, unrelated to the meeting's subject, and
unconnected with the collective decision that all of the
employees were being called upon to reach. Therefore, I
find that Cibrian's remarks to Spicer, through Villar, on
February 2 had been an integral part of the concerted
activity of Respondent's employees.
Nevertheless, the fact that an employee participates in
concerted activity concerning a protected objective does
not immunize that employee absolutely from employer
discipline. "Not all conduct that can, in some general
sense, be characterized as an exercise of a right ennumer-
ated in [S]ection 7 is afforded the protection of the Act."
Texas Instruments Incorporated v. N.L.R.B., 637 F.2d
822, 830 (Ist Cir. 1981). Here, Respondent argues "that
Cibrian threatened his employer with a work slowdown
if he did not get a wage increase." Of course, the Act
does not protect employees who engage in slowdowns
and employers may discharge them for doing so. See,
e.g., Classic Products Corporation, 226 NLRB 170, 177
(1976). Yet, even though Cibrian's words may be con-
strued as constituting a threat to slow down work and,
thus, an impropriety, it does not necessarily follow that
they served to deprive him of statutory protection in the
circumstances of this case.
The starting point for analysis of the effect of employ-
ee improprieties committed while engaging in protected
concerted activities is the Board's recent decision in J.
W. Microelectronics Corporation, 259 NLRB 327 (1981):
It is well settled, however, that not every impro-
priety committed in the course of Section 7 activity
deprives the offending employee of the protection
of the Act. A line must be drawn between situations
where employees exceed the bounds of lawful con-
duct in a moment of exuberance or in a manner not
activated by improper motives and those flagrant
cases in which misconduct is violent or of such seri-
ous character as to render the employees unfit for
further service.
In this case, so far as the record discloses, although Re-
spondent's employees had been aware that they had not
received the 1980 seasonal bonus they had not been
aware, prior to Spicer's announcement, that they would
not be able to receive wage increases. Moreover, the
record does not show even that the employees, particu-
larly Cibrian, had been aware that Respondent would be
discussing their wages with them at any time prior to
actual commencement of the meetings on February 2. In
fact, there is no evidence that Respondent previously
had ever assembled its employees and had sought their
opinions regarding changes in their wages and terms of
employment. Cibrian had been the first employee whose
opinion had been sought during the meeting that he had
attended. Consequently, of the employees whose opin-
ions had been sought during that meeting, he had been
afforded the least opportunity to reflect upon Spicer's
announcement and to formulate an answer at the time
that his opinion had been solicited.
"The employee's right to engage in concerted activity
may permit some leeway for impulsive behavior, which
must be balanced against the employer's right to main-
tain order and respect." N.L.R.B. v. Thor Power Tool
Company, 351 F.2d 584, 587 (7th Cir. 1965). As set forth
above, when Cibrian had answered Spicer's question on
February 2, he had been in the position of having to do
so spontaneously and in response to an unanticipated an-
nouncement regarding a subject of "immediate concern
to employees," Eastex Inc. v. N.L.R.B., supra, and of
950
ENTERPRISE PRODUCTS, INC.
particular concern to himself.9 In such circumstances, it
is not surprising that Cibrian would have been displeased
with the announcement and, lacking time to formulate a
more reasoned response to Spicer's question, compelled
"to speak for [himself] as best [he] could." N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9, 14
(1962). Yet, there is no evidence that, following conclu-
sion of the February 2 meeting, Cibrian had attempted to
persuade other employees to slow down their work or
had slowed down his own work. True, only a relatively
brief period had elasped between that event and his dis-
charge. However, that his termination had occurred so
shortly after the meeting's conclusion can hardly be
blamed on Cibrian. In these circumstances, it cannot be
said that his statements had been other than impulsive
and it has not been shown that they had any effect on
Respondent's ability to maintain order and respect
among its employees.
Accordingly, Cibrian's conduct had not been so perni-
cious that it had deprived him of statutory protection.
Spicer had known that Cibrian's comments had been
made during a meeting at which employees where being
called upon to reach a collective decision. Moreover,
Spicer admittedly was on notice that other employees
were expressing dissatisfaction with discontinuance of
wage increases.10 Consequently, even if it could be con-
cluded that Respondent had harbored a good-faith belief
that Cibrian's remarks had constituted misconduct, there
is no basis for depriving Cibrian of his statutory protec-
tion and, thus, for concluding that his discharge had not
violated the Act. See N.L.R.B. v. Burnup & Sims, Inc.,
379 U.S. 21 (1964). Therefore, I conclude that Respond-
ent violated Section 8(a)(1) of the Act by discharging Ci-
brian on February 3.
CONCLUSIONS OF LAW
1. Enterprise Products, Inc., is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By discharging Marco G. Cibrian on February 3,
1981, for engaging in protected concerted activities, En-
terprise Products, Inc., violated Section 8(a)(l) of the
Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Enterprise Products, Inc., engaged
in an unfair labor practice, I shall recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act. With regard to the latter, Enterprise Products, Inc.,
9 During his employment with Respondent. Cibrian had approached its
officials on several occasions with requests for raises
10 With respect to the hearsay objection concerning the testimony re-
garding what other employees had said during the meeting, it should be
noted that that testimony was not received for the truth of the assertion
made by those other employees, but rather as evidence that Spicer had
been on notice that Cibrian was not alone in protesting suspension of
wage increases. See 4 Weinstein's Evidence, Sec. 801 (c) [01j, pp. 801-62
to 801-63
will be required to offer Marco G. Cibrian immediate re-
instatement to his former position of employment or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, dismissing, if necessary, anyone
who may have been assigned or hired to perform the
work that Cibrian had been performing prior to his dis-
charge on February 3, 1981. Additionally, Enterprise
Products, Inc., will be required to make Cibrian whole
for any loss of earnings he may have suffered by reason
of his unlawful termination, with backpay to be comput-
ed on a quarterly basis, making deductions for interim
earnings, as prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), enforcement
denied on different grounds 322 F.2d 913 (9th Cir. 1963),
and Florida Steel Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1
The Respondent, Enterprise Products, Inc., Bell Gar-
dens, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees for protesting or objecting
to changes in wages or for engaging in other activity
protected by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Marco G. Cibrian immediate and full rein-
statement to his former position of employment, dismiss-
ing, if necessary, anyone who may have been assigned or
hired to perform the work that he had been performing
prior to his unlawful discharge on February 3, 1981, or,
if his former position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of pay he may have suffered as a result of his unlaw-
ful discharge, in the manner set forth above in "The
Remedy" section of this Decision.
(b) Expunge from its files any reference to the dis-
charge of Marco G. Cibrian on February 3, 1981, and
notify him in writing that this has been done and that
evidence of his unlawful discharge will not be used as a
basis for future personnel action against him. 2
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to compute the
I In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
12 See Sterling Sugars. Inc., 261 NLRB 472 (1972).
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay and reinstatement rights set forth in "The
Remedy" section of this Decision.
(d) Post at Bell Garden, California, facility copies of
the attached notice marked "Appendix."' 3 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by its authorized rep-
resentative, shall be posted by Enterprise Products, Inc.,
immediately 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 it to ensure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Enterprise Products, Inc., has taken to comply
herewith.
'3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act all gives employees the following
rights:
To organize themselves
To form, join, or support union
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT discharge you for protesting or
objecting to changes in your wages nor for engag-
ing in other activity protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner in-
terfere with your rights set forth above which are
guaranteed by the National Labor Relations Act.
WE WILL offer Marco G. Cibrian immediate and
full reinstatement to his former position, dismissing,
if necessary, anyone who may have been assigned
or hired to perform the work that he had been per-
forming prior to his unlawful discharge on Febru-
ary 3, 1981, or, if his former position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and pri-
vilges, and make him whole for any loss of pay he
may have suffered as a result of our discrimination
against him, with interest on the amounts owing.
WE WILL expunge from our files any reference to
the discharge of Marco G. Cibrian on February 3,
1981, and WE WILL notify him that this has been
done and the evidence of his unlawful discharge
will not be used as a basis for future personnel ac-
tions against him.
ENTERPRISE PRODUCTS, INC.
952