Forrest City Machine Works

National Labor Relations Board - Board Decisions

Sep 24, 1998

326 N.L.R.B. 1093 (N.L.R.B. 1998)

FORREST CITY MACHINE WORKS 1093
Forrest City Machine Works, Inc. and Aaron Wil-
liams. Case 26–CA–17735
September 24, 1998
DECISION AND ORDER REMANDING
PROCEEDING TO ADMINISTRATIVE LAW JUDGE
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 30, 1997, Administrative Law Judge Robert
C. Batson delivered a bench decision in this proceeding.
The Respondent filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent also filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the bench decision and the
record in light of the exceptions and briefs and has de-
cided to remand this proceeding to the judge for further
consideration as set forth below.
The judge found that the Respondent violated Section
8(a)(1) of the Act by discharging and/or refusing to re-
hire employees Aaron Williams and Robert Fields be-
cause they engaged in protected concerted activity, to-
gether with two other employees, Roy Burkes and Otis
Dawson, by collectively demanding a wage increase. In
its exceptions, the Respondent contends, inter alia, that
Williams and Fields were not engaged in protected con-
certed activity when they asked for pay raises; that they
were not discharged but voluntarily resigned from the
Respondent’s employ on October 4, 1996; that neither
employee responded when asked if they had changed
their minds about resigning; that Fields never attempted
to rescind his resignation; that if any attempt was made
by Williams to rescind his resignation it came after the
Respondent had already hired employees to replace both
Williams and Fields; and that the judge erred by exclud-
ing evidence of actions concerning Williams’ and Fields’
unemployment compensation claims taken by the Arkan-
sas Employment Security Division and the Arkansas
Board of Review Hearings.
1. The Respondent contends that Williams and Fields
were not engaged in protected concerted activity because
their requests for wage increases were “not for mutual
aid and protection” in that “no employee in th[e] situa-
tion was acting on behalf or on the authority of his fellow
workers,” that “each employee was requesting a raise
based on their individual merit and for themselves only”
and that “each individual threatened separate action if he
did not receive his raise.” We find no merit in the Re-
spondent’s contentions.1

1 Member Brame would remand the issues of whether the employ-
ees’ actions were concerted and were for the “mutual aid and protec-
tion” of employees to the judge along with the other issues to be re-
manded. In considering these issues, he would instruct the judge to
make findings concerning, inter alia, (1) whether Williams told Opera-
tions Manager Watkins before the October 4, 1996 meeting that “eve-
rybody had to take care of himself”; and (2) whether General Manager
Blackwood initially planned to speak to the employees individually on
October 4 but family problems necessitated her speaking to the em-
ployees in a group setting.
The record shows that in June 1966 employees Wil-
liams, Fields, Burkes, and Dawson had a meeting with
General Manager Barbara Blackwood at which they col-
lectively asked for a raise. At the June meeting, Black-
wood told the four employees that she needed to discuss
the issue with the owner of the Company and would “get
back” with them. Blackwood failed to “get back” with
the four employees. That prompted Williams, in October,
to approach his foreman, Ray Neisler, and tell him that
“me, Otis, Robert and Roy want[] to see [Operations
Manager] Johnny [Watkins] about a raise.” In response
to this request, Neisler set up another meeting with the
four employees and himself, Watkins, and Blackwood.
At this meeting on October 4, with Williams “doing most
of the talking for the four [employees],” they again asked
for a raise. In response to their request, each employee
was asked what he would do if he was not given a raise.
The responses varied.
We find, in agreement with the judge, that in seeking
raises in the manner described above, both Williams and
Fields were engaged in protected concerted activity.
Section 7 of the Act gives employees the right “to engage
in . . . concerted activities for the purpose of . . . mutual
aid or protection.” It is well established that Section 7
grants employees the fundamental right to join together
to present complaints about working conditions to man-
agement.2 The conditions of employment which em-
ployees may seek to improve through concerted action
include wages.3 Here, with Williams acting as their pri-
mary spokesperson, the four employees twice met collec-
tively with members of management to seek an increase
in their wages. Respondent’s contentions notwithstand-
ing, the fact that each employee responded differently
when asked what they would do if they did not receive
raises does not negate the concerted nature of their wage
complaint or remove their activity from the protections
of the Act.4
2. The Respondent asserts that the judge erred by ex-
cluding Respondent’s Exhibits 5, 6, and 7, which consist
of documents filed with and actions taken by the Arkan-
sas Employment Security Division and the Arkansas
Board of Review Hearing concerning unemployment
compensation claims made by Williams and Fields, re-

2 NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962).
3 See Jeannette Corp. v. NLRB, 532 F.2d 916, 918, 919 (3d Cir.
1976).
4 See Kysor Industrial Corp., 309 NLRB 237, 238 (1992) (Approxi-
mately 15 employees collectively approached their foreman for clarifi-
cation of conflicting work assignments. After being ordered back to
work, all immediately resumed work except for six employees who
wanted specific directions. Those who immediately returned to work
were not disciplined, but the six who remained were given reprimands.
The Board found that all 15 employees were engaged in “the protected
concerted activity of making a group inquiry as to their specific work
assignments.”)
326 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
spectively. Specifically, the Respondent contends that
the evidence would show that Williams was denied un-
employment because (1) he “initiated the separation” of
employment and (2) he told the Employment Security
Division that he had quit his employment with the Re-
spondent. The Respondent also contends that the ex-
cluded evidence concerning Fields would show that he
was denied unemployment benefits because he voluntar-
ily resigned his position with the Respondent.
We agree with the Respondent that the judge should
have admitted the evidence. Although such evidence is
not controlling, it is admissible for whatever probative
value it has.5 Accordingly, the record shall be reopened
to admit Respondent’s Exhibits 5, 6, and 7 and the judge
shall give these exhibits whatever weight the evidence
warrants.6
3. The Respondent also contends that Williams and
Fields had resigned and were not discharged; that they
failed to respond at the end of the October 4 meeting
when Blackwood asked if anyone had changed their
minds about resigning; that Fields never attempted to
rescind his resignation; that if any attempt was made by
Williams to rescind his resignation it came after the Re-
spondent had already hired two new employees to fill
both Williams and Fields’ positions; and that the two
employees hired after the October 4 meeting were re-
placements for Williams and Fields rather than part of a
normal seasonal buildup.
Upon reviewing the Respondent’s exceptions and
briefs and the General Counsel’s brief in response to the
Respondent’s exceptions, we find it clear that the judge
failed to make adequate credibility resolutions concern-
ing certain testimony relating to these issues and that
such resolutions are necessary for a proper evaluation of
the case. Accordingly, we shall remand the case to the
judge for the purpose of making explicit credibility reso-
lutions and findings concerning (1) exactly what Wil-
liams and Fields said at the October 4 meeting about
what action they would take if their raises were denied;
(2) whether, at the close of the October 4 meeting,
Blackwood asked if any of the employees had changed
their minds about what action they would take if they
were denied a raise; (3) whether, if Williams resigned, he
attempted to rescind his resignation about 30 minutes
after the October 4 meeting; (4) whether, if Williams
resigned and did not attempt to immediately rescind his
resignation, he later attempted to rescind the resignation
before he was replaced; (5) whether, if Williams and
Fields resigned, and Williams at some point in time did
attempt to rescind his resignation, that rescission in-
cluded Fields; (6) whether the two new hires were re-
placements for Williams and Fields rather than part of a

5 Armored Transportation of Nevada, Inc., 265 NLRB 1648, 1653
(1982); Magic Pan, Inc., 242 NLRB 840, 841 (1979).
6 Id.
normal seasonal buildup of employees and (7) whether
the Respondent was able to hire additional employees
beyond the two employees it hired, but did not do so.
We shall further remand the case so that the judge may
reopen the record for the sole purpose of accepting into
evidence and considering to the extent deemed appropri-
ate by the judge Respondent’s Exhibits 5, 6, and 7.
ORDER
IT IS ORDERED that this proceeding is remanded to Ad-
ministrative Law Judge Robert C. Batson for the pur-
poses described above.7
IT IS FURTHER ORDERED that the judge shall prepare and
serve on the parties a Supplemental Decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the Supplemental Decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.

Tamra Sikkink, Esq., for the General Counsel.
J. Bruce Cross, Esq. and Rick Roderick, Esq., of Little Rock,
Arkansas, for the Respondent.
BENCH DECISION
ROBERT C. BATSON, Administrative Law Judge. This case
was heard by me on May 19 and 20, 1997, at Memphis, Ten-
nessee. At the close of the hearing, I delivered a Bench Deci-
sion, pursuant to Section 102.35(a)(10) of the Board’s Rules
and Regulations, which found that Respondent had engaged in
certain unfair labor practices and ordered appropriate remedial
action designed to effectuate the policies of the Act.
In accordance with the provisions of Section 102.45 of the
Board’s Rules and Regulations, I certify the accuracy, as cor-
rected, on pages 250 through 256 of the transcript which pages
contain the decision, and I hereby file with the Board a certified
copy of those pages which are attached hereto as Appendix A.
This recitation of the Bench Decision is hereby supple-
mented by the formal order and Notice to Employees.
Upon the findings of fact and conclusions of law set forth in
the Bench Decision, I issue the following recommended1
ORDER
The Respondent, Forrest City Machine Works, Inc., Forest
City, Arkansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
7 In remanding this case, we are not passing on any of the other is-
sues raised by the parties’ exceptions or briefs at this time.
Because the Board has been advised that Judge Batson has retired
from the Agency, the Board requests that the chief administrative law
judge ascertain the availability of Judge Batson. In the event that Judge
Batson is not available, the case is remanded to the chief administrative
law judge who may designate another administrative law judge in ac-
cordance with Sec. 102.36 of the Board’s Rules.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
FORREST CITY MACHINE WORKS 1095
(a) Discharging or otherwise discriminating against its em-
ployees because they engage in protected activity for mutual
aid and protection with respect to wages, hours, and other terms
and conditions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Make Aaron Williams and Robert Fields whole for any
loss of pay or benefits they may have suffered by reason of the
discrimination against them described in this Bench Decision.
(b) Within 14 days from the date of this Order, offer Aaron
Williams and Robert Fields reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
and privileges previously enjoyed.
(c) Expunge from the personnel files of Aaron Williams and
Robert Fields any references to their unlawful discharges and
within 3 days notify them that it has done so and that such shall
not be used against them in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in Forrest City, Arkansas, copies of the attached notice
marked “Appendix B.’’2 Copies of the notice, on forms pro-
vided by the Regional Director for Region 26, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since November 4,
1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
APPENDIX A
250
. . . .
JUDGE BATSON: Thank you, Mr. Cross. Counselors, there
are certainly some close questions here, particularly credibility
resolutions and—and—on the facts, the sequence of events and
so on, however I suspect if I let you file briefs and so on, that
my decision would be the same and however I rule, it’s going
to be —it’s going to the Board anyway so I’ll render a bench
decision pursuant to 102.35 (a) (10) of the—of the Act.
This case originated with the filing of a charge on November
Fourth by Aaron Williams, an individual and employee under
Section 2(3) of the Act of Forrest City Machine Works, Inc.
Pursuant to that charge on January Thirty-one, Nineteen

2 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Ninety-seven, pursuant to USC—29 USC et. seq, Section 151,
the National Labor Relations Act, herein
251
the Act, the Regional Director for Region Twenty-six issued a
complaint and notice of hearing wherein he alleged as far as for
practical purposes or material purposes here that four employ-
ees, Aaron Williams, Robert Fields, Otis Dawson and Roy
Burkes engaged in protected concerted activity on October
Four, Nineteen Ninety-six at which time they sought together a
raise from the Employer and that thereafter, on October Four-
teen, Nineteen Ninety-six Respondent terminated employees
Aaron Williams and Robert Fields. This is alleged to violate
Section 8(a)(1) of the Act. Since the General Counsel’s theory
is that it was because they engaged in the protected concerted
activity of seeking a raise that—that they were terminated. The
Respondent contends that they were not terminated, they quit
and there is some evidence to that effect.
There is no issue that the Complaint alleges the answer ad-
mits that the Employer is engaged in business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Now, getting to the alleged protected concerted activity,
there is no dispute that during the summer of Nineteen Ninety-
six these same four employees sought through Mr. Watkins, I
believe it was, to ask for a raise. They—and I believe the tes-
timony is that Mr. Watkins contacted Ms. Blackwood—
MR. HOOKS: Pardon me. I hate to interrupt but—
JUDGE BATSON: Yes?
252
MR. HOOKS:—but you said “Mr. Watkins” and it should be
“Mr. Williams.”
JUDGE BATSON: I’m sorry.
MR. HOOKS: And—and you said “Nineteen Eighty-six” and
it should be—
JUDGE BATSON: Nineteen Ninety-six, thank you.
MR. HOOKS: I’m sorry, Your Honor.
JUDGE BATSON: Thank you. No, that’s fine, but at any rate,
a couple of months later they had still not heard anything and
on—apparently on October Third Mr. Williams, I believe it
was, went to Mr. Neisler and asked if he could get Mr. Watkins
to arrange a meeting and Mr. Neisler did that. The meeting
occurred on October Fourth at approximately two o’clock, as I
recall. Present at that meeting was Mr. Watkins, Mr. Neisler,
the four individuals, Mr. Williams, Fields, Dawson and Burkes,
and Ms. Blackwood by speaker—by telephone speaker. The—
my notes indicate that during that—during that meeting Mr.
Watkins explained—Mr. Watkins, yes—explained to Ms.
Blackwood that the employees were there, they wanted a—they
were seeking a raise and Ms. Blackwood went into details as to
why it could not be granted.
Now, at some point, I recall, Mr. Watkins did ask each of the
individuals what—what they would do if they did not get their
raise. Mr. Williams testified that he stated if he
253
didn’t get the raise, he could walk, or at least that’s what my
notes reflect. Mr. Fields said he would do what the majority
did, Mr. Dawson indicated that he would slow down and Mr.
Burkes said that he would continue to work because he was
nearing retirement anyway. Well, Counsel, this is protected
concerted activity. Now, there is other testimony that—that
Mr. Williams stated, instead of “I can walk,” that he stated he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
would quit, there’s also testimony that Mr. Fields stated that he
would follow Aaron or Mr. Williams other than do what the
majority did and as Mr. Cross pointed out on cross-
examination, there was no majority who said they would do the
same thing.
Now, on October Fourteenth the employees, Mr. Williams
and Mr. Fields, were given letters stating that their resignation
had been accepted and neither of them said, “But we didn’t
resign,” however on the—they continued to work then until the
Eighteenth and I believe the testimony is that it was not until
the Seventeenth that Mr. Williams approached either Mr.
Neisler or Mr. Watkins and told him that he did not intend to
quit, he didn’t want to quit and presumably they got in touch
with Ms. Blackwood who said it was too late, at lease that’s
what Mr. Neisler told—told the employees. Now, Mr. Neisler
also testified that the Employer did not have a policy that it
would not rehire people who quit. The Respondent says that
they had hired two employees in the machine shop to
254
replace—a gentleman named Cox and one named Layman to
replace Mr. Williams and Mr. Fields, however these two em-
ployees did not have experience on the machine that was oper-
ated by Mr. Williams, anyway, and the General Counsel argues
that this is part of the buildup that was coming in the fall, the
testimony was that there were only nine employees employed at
that time and during the peak season there would be twenty-
five to thirty and the Employer was beginning to increase his
work force at—at that period in time.
It’s evident that Mr. Williams certainly attempted, if, at any
point he did say “I quit” or “I will quit in two weeks,” it’s clear
that he attempted to rescind that and the evidence is that Mr.
Fields was doing whatever Mr. Williams did. Accordingly, the
Respondent said “It’s too late, they’ve been replaced.” As I
said, the General Counsel contends that these were—could
have been replacements for these gentlemen but it could also be
a buildup of the labor force for their peak season.
Now, Counselors, I find that these employees were engaged
in protected concerted activity, that the Respondent refused to
permit Williams and Fields to rescind their resignation, if, in-
deed, they had tendered a resignation because they had engaged
in this concerted activity. Mr. Williams was obviously the
leader of the group and therefore the—and had
255
also made the issue during the summer of Nineteen Ninety-six
so that was twice in two or three months that Mr. Williams had
led a group seeking more money, the Employer might well
have—considered that to be an act that could incite other em-
ployees to seek raises also.
I find that the employees were engaged in protected con-
certed activity and that the Respondent refused to permit Wil-
liams and Fields to rescind their resignation, if they had re-
signed, or he—they terminated them on or about October—
what was it? About the Nineteenth, I think, before—on their
last day of work. Accordingly, I shall order the Respondent to
offer Williams and Fields reinstatement and to make them
whole for any loss of pay or other benefits they may have suf-
fered by reason of this discrimination against them. In accor-
dance with F.W. Woolworth Co., 90 NLRB 289, 1950, with
interest computed thereon as set forth in New Horizons For The
Retarded, 283 NLRB, 1173, 1987 and to post the appropriate
notice which I will attach to—to my certification of the record
and this decision.
Thank you very much and are there any questions now?
That concludes the decision.
Mr. Cross?
MR. CROSS: (Indicated negatively).
JUDGE BATSON: Ms. Sikkink?
MS. SIKKINK: No, Your Honor.
256
MR. CROSS: How long will we have to file exceptions from
the date of the decision?
JUDGE BATSON: I think you have, what is it? Twenty days?
MR. HOOKS: Twenty-eight days. Your Honor.
JUDGE BATSON: Mr. Hooks is Regional Attorney so he
knows, I don’t know. I know how long but it just alluded me.
All right, Counselors, I want to compliment all of you on
your professionalism and the manner in which you tried your
case and if there is nothing further, the hearing is now closed.
(Whereupon, the hearing was closed at 2:40 p.m.)
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge or otherwise discriminate against our
employees because they engaged in concerted activity for their
mutual aid and protection with respect to wages, hours, and
other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make Aaron Williams and Robert Fields whole for
any loss of earnings and other benefits they may have suffered
by reason of our discrimination against them.
WE WILL, within 14 days from the date of the Board’s Order,
offer Aaron Williams and Robert Fields full reinstatement to
their former jobs or, if those jobs no longer exist, to a substan-
tially equivalent position, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s Order,
remove from the personnel files of Aaron Williams and Robert
Fields any reference to their unlawfuldischarges, and WE WILL,
within 3 days thereafter, notify them in writing that we have
done so and that we will not use the discharges against them in
any way.
FORREST CITY MACHINE WORKS, INC.