J. P. Hamer Lumber Co.

National Labor Relations Board - Board Decisions

Mar 29, 1979

241 N.L.R.B. 613 (N.L.R.B. 1979)

J. P. HAMER LUMBER COMPANY
J. P. Hamer Lumber Company, Division of Gamble
Brothers, Inc. and United Furniture Workers of
America, AFL-CIO. Case 9-CA-11541
March 29. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 26, 1978, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and the General
Counsel filed an answering brief to Respondent's ex-
ceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified,
and hereby orders that the Respondent, J. P. Hamer
Lumber Company, Division of Gamble Brothers,
Inc., Burnside, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as modified below:
1. Substitute the following for paragraph (b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made b. the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The Administrative Law Judge, at fn. 31 of his Decision, cites Advance
Industries, 220 NLRB 431 (1975), enforcement denied in part and granted in
part 540 F.2d 878 (7th Cir. 1976), for the proposition that a unilaterally
established grievance procedure does not provide a sufficient basis for deny-
ing employees the protection of the Act. Member Penello agrees with the
Administrative Law Judge's finding that Respondent violated the Act. inas-
much as the concerted walkout herein is clearly distinguishable from the
plant takeover and seizure of the means of production in Advance Industries,
supra, wherein Member Penello dissented in part.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we participated, it has been
found that we have violated the National Labor Rela-
tions Act, as amended, in certain respects. To correct
and remedy these violations, we have been directed to
take certain actions and to post this notice.
WE WIt.L NOT interfere with, restrain, or coerce
employees by discharging or in any other man-
ner discriminating against them for striking, par-
ticipating in a concerted work stoppage, or en-
gaging otherwise in concerted protected
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Billy Haynes, Paul McMullin,
Mike Hayes, Gerald Cook, Everett Simpson,
Owen Bunch, and Rexel Gregory immediate and
full reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and we
will make each of them whole, with interest, for
any loss of earnings suffered.
WE WILL rescind and remove the personnel
files of each of the above-named employees, and
from any of our other relevant records, any refer-
ence to the written notices of discharge issued to
them in connection with their respective refusals
to work an additional hour on June 3-4, 1977,
and make provisions that these notices shall not
be used as grounds for further disciplinary action
against these employees.
J. P. HAMER LUMBER COMPANY, DIVISION
OF GAMBLE BROTHERS, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
This case was heard in Somerset, Kentucky, on November
14 and 15, 1977.'
Pursuant to a charge filed by the United Furniture Work-
ers of America, AFL-CIO, on July 8, a complaint was is-
sued b the Acting Regional Director for Region 9 on Sep-
tember 8. The complaint alleges that J. P. Hamer Lumber
' All dates hereinafter are in 1977 unless otherwise stated.
241 NLRB No. 100
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Division of Gamble Brothers, Inc., herein the
Respondent. terminated and refuses to reinstate seven of its
employees, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, because they engaged in
a protected concerted walkout. The Respondent, in answer-
ing the complaint, denied the commission of unfair labor
practices.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs, which have been care-
fully considered, were filed by the General Counsel and the
Respondent.
Upon the entire record of this case,2 and from my obser-
vation of the witnesses and their demeanor, I now make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation, is engaged in
the processing and manufacture of laminated flooring, fur-
niture stock, and trailer truck forms at its Burnside, Ken-
tucky, facility. During the 12-month period immediately
preceding the issuance of the complaint herein, a represent-
ative period, the Respondent sold and shipped goods and
materials valued in excess of $50,000 from its Burnside fa-
cility directly to points outside the State of Kentucky.
Upon the foregoing uncontested facts, I find that the Re-
spondent is now, and at all times material herein has been,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.'
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The General Counsel contends that the Respondent, on
June 7 and 8, unlawfully terminated seven employees, Billy
Haynes, Paul McMullin, Mike Hayes (McMullin's step-
son), Everett Simpson, Gerald Cook, Rexel Gregory, and
Owen Bunch, from its second shift for having concertedly
walked off the Respondent's premises about 12:30 a.m. on
June 4, I hour before the scheduled end of their shift, to
protest the number of hours they were being required to
work. The Respondent, in turn, argues that the employees
were lawfully discharged for misconduct and insubordina-
tion after they had left work early without permission or
reasonable excuse. The Respondent, although disputing
2 Certain errors in the transcript have been noted and are hereby cor-
rected.
Although the charge herein was filed by the Union in its representative
capacity, the complaint does not allege that the discharges herein had been
caused by union activities on the part of the employees involved or that they
were otherwise union-related.
that the walkout was concerted, asserts that even if the em-
ployees had been acting in concert their terminations would
not have been unlawful, as their purpose in so doing never
had been communicated to the Respondent and as there
was an established grievance procedure available to the em-
ployees.
The Respondent is principally engaged at its Burnside,
Kentucky, plant in the manufacture and distribution of
laminated board to be used in the production of truck trail-
ers. The Respondent employs approximately 102 produc-
tion employees on two shifts. The first shift was scheduled
on Mondays through Saturdays from 7 a.m. to 3:30 p.m.,
and, prior to April 28, the second shift worked the same 6
days from 3:30 to around 12:30 a.m.4 When the events
herein took place, Harry E. Quillen was plant superinten-
dent, John Maynard was assistant superintendent, and
Robert (Blackie) Carrender was foreman of the second
shift.'
In April Andy Mercer, a second-shift production em-
ployee, gave Superintendent Quillen a petition signed by 25
of the approximately 32 employees on his shift to the effect
that the second-shift employees wanted to work longer
weekday hours, from 3:30 p.m. to 1:30 a.m., and thereby
not have to work on Saturdays.
On about April 28, Assistant Superintendent Maynard,
at Quillen's instruction, conducted a meeting attended by
Foreman Carrender and about 20 second-shift employees
for the purpose of conducting a vote to determine their
views on the changes suggested in Mercer's petition. The
meeting began shortly before the start of the shift.,
Maynard told the assembled employees that the Com-
pany had to have a certain amount of production from their
shift but that as long as the required work was performed it
did not matter if the workweek was 5 or 6 days. Certain
employees present, including Paul McMullin and Carol
Branscum, testified that Maynard had told the group that
the hours thereafter would be changed so that the second
shift would work from 3:30 p.m. to 1:30 a.m. on the shifts
that began on Mondays through Wednesdays and from
3:30 p.m. to 12:30 a.m. on shifts beginning on Thursdays
and Fridays. After brief discussion a vote was taken, and,
by show of hands, the employees unanimously approved
the new schedule proffered by Maynard. While Maynard
was in the upstairs office seeking Quillen's approval of the
voted schedule change, most of the employees remained in
the file room and further considered the proposition.
Shortly thereafter Maynard, having received Quillen's ap-
proval, was asked to return to the file room where most of
' The events herein related focus on the work hours of the second shift.
The Respondent's position is that the nature of its operation, which requires
working to close tolerance and making extensive use of glue, which could
harden on the machines, in the context of the need to timely complete orders,
necessitates an almost continuous work effort involving long hours. A work-
week of 48 to 50 hours on the second shift was deemed standard. Overtime
work was frequent and mandatory and, in spite of scheduled hours, second-
shift employees worked until notified by the foreman's whistle that it was
time to go home.
5 In accordance with the stipulation of the parties at the hearing, I find
that at all times material herein Carrender was a supervisor within the mean-
ing of the Act.
6 The representation election in Case 9 RC- 11963, which resulted in the
Union's certification as bargaining representative, took place on the day
preceding the meeting.
614
J. P. HAMER LUMBER COMPANY
the employees were still assembled. Maynard was told that
the employees had reconsidered, and rather than work odd
hours they would prefer to work one steady shift all week.
After further discussion it was agreed and again unani-
mously voted that the employees would work on Mondays
through Fridays from 3:30 p.m. to 1:30 a.m. Maynard
again conveyed the results of this poll to Quillen and that
day posted the following notice, over Quillen's signature, on
the bulletin board:
DUE TO OUR SHIPPING SCHEDULE WE HAVE TO OPERATE
THE PLANT ON 48 HOURS-WEEKLY; DAY SHIFT--7:00
A.M. TO 3:30 P.M.; 6 8-1/2 HOUR SHIFTS; NIGHT SHIFT-
3:30 P.M. TO 1:30 A.M.; 5 9-1/2 HOUR HIFTS;7 SHIP-
PING-AS REQUIRED.
Although I find from the record as a whole that the
above notice was posted on about April 28, following the
second employee vote taken that date, and that the notice
remained on the bulletin board for some time thereafter, it
also is clear, whether or not justified, that an ambiguity
existed on the part of certain employees as to exactly what
were the working hours of the second shift. All the dis-
chargees herein who testified believed that the shifts which
began on Thursdays and Fridays should properly have
ended at 12:30 a.m. Mike Hayes and Paul McMullin both
testified that they had left the meeting before the second
vote was taken, and Billy Haynes and Paul Gregory related
their unfamiliarity with the 1:30 a.m. quitting time on those
nights. Admittedly, none of these employees had been at-
tentive to the bulletin board, but a basic reason for uncer-
tainties as to when work was supposed to end on Thursdays
and Fridays was the varying hours actually worked, as in
the weeks that followed April 28, the second-shift employ-
ees on those nights continued to work to differing times.
During the payroll period ending April 30, employees on
the relevant shift averaged 47-1/2 hours, working 8-1/2 and
10-1/2 hours, respectively, on Thursday and Friday of that
week. In the week ending May 14, the employees averaged
a total of 48 hours, working 10 hours on both Thursday and
Friday. The employees totaled an average of 47 hours for
the week ending May 21, putting in 8-1/2 hours on Thurs-
day and 10 hours on Friday. The total for the week ending
May 28 was somewhat in excess of 50 hours, with shifts of
from 10 to 10-1/2 hours from Monday through Thursday of
that week and from 10-1/2 to 11 hours on Friday. On the
last relevant week, which ended June 4, Monday was a
compensated holiday, Memorial Day, for which the em-
ployees received 9 hours' pay, although thereafter that week
they were assigned to work 10 hours each night from Tues-
day through Friday.'
'The 9-1/2 hour shifts referred to on the notice, by the Respondent's
interpretation, included a 30-minute unpaid lunchbreak. Employees nor-
mally were required to be on the Respondent's premises for at least 10 hours,
including the meal recess. However, employees who finished eating and were
back at work within 15 minutes were paid for the full half-hour. Quillen
explained that this represented a liberalization of the former policy of not
paying for any part of the half-hour lunchbreak and served to encourage the
employees to return to work before the glue they were using hardened.
IQuillen explained that unless sent home early because of equipment
breakdown all second-shift employees were expected to be on the premises
for at least 10 hours. Where company records indicated that employees
worked for less than 10 hours on a given night, equipment failure could be
Accordingly, while I accept the Respondent's position
that as the result of Mercer's petition and the votes which
followed on April 28, the work schedule for the second shift
was formally changed in conformity with the above-de-
scribed posted notice, I also accept the testimony of the
dischargees that, whether or not warranted, they did not
understand that the formal ending time for their shift on
Thursdays and Fridays was 1:30 a.m.9
Quillen testified that the shift that began on Friday, June
3, 3:30 p.m., was scheduled to work until 1:30 a.m., June 4.
However, on June 4, about 8 a.m., he received a call from
Carrender, who reported that the above-named seven em-
ployees from the second shift, without permission, had
punched out and left at 12:30 a.m. Carrender did not know
why they had done so. Quillen told Carrender to leave these
employees' timecards on his desk. Carrender also had in-
formed Quillen, either during that weekend or on the fol-
lowing Monday, that second-shift employees Carol Bran-
scum, Jack Daniel, and Lester Loveless, had reported that
certain of these seven men on the night in question had
asked them to leave with them but that they had refused.
They, too, did not know why the seven had left.' 0
Quillen, on June 5, received a further report of what had
occurred when Carrender related that he had asked Billy
Haynes to run the press for Kenneth Perry" during the last
hour of the shift but that Haynes had replied that he, too,
was going to leave. Carrender informed Quillen that he had
not taken Haynes' response seriously, as the latter fre-
quently made such remarks. Carrender also told Quillen
that when the employees left he was preoccupied at the rear
of the plant in attempting to clear a lumber jamup then
blocking production. While Carrender was working on the
problem with several other employees he could not see the
timeclock. Carrender later discovered that although Mike
Hayes had been working with him until about 12:30, Hayes
was among those who had left without saying anything to
him.
Carrender testified that about I p.m. Carol Branscum
asked if they were all going to quit for the night at 12:30
a.m. When Carrender replied that he had not heard a thing
about it, Branscum told him that some of the men had said
that they were leaving at 12:30. Branscum did not identify
the employees who were going to leave early, and Carren-
der did not ask who they were. According to Carrender,
only Haynes and Branscum, as noted above, had men-
tioned that employees might leave work that night before
quitting time. About 12:40 a.m., just when the lumber jam
was corrected, Carrender was approached by Branscum,
presumed to be the reason. While employees were expected to be available
for at least 10 hours' work, pursuant to company policy, they received only 9
hours' holiday pay.
9 In determining whether the seven employees were terminated unlawfully
for having concertedly protested the number of working hours specifically
assigned for June 3 4, the matter of whether they then knew the extent to
which the work schedule had been changed would not be controlling.
0 Quillen testified that on Sunday, June 5, he received a like report di-
rectly from Jack Daniel.
It Kenneth Perry, another second-shift employee, had received permission
from Carrender to leave at 12:30 a.m. on June 4, for dental reasons. Perry's
brother, Robert. also employed on that shift, was released with him, as the
two rode to work together. The record reveals that the Perrys, perhaps jeer-
ingly, had told other employees that they were going to leave early, appar-
ently irking some of those who had to remain.
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loveless, and Daniel, who told him that they could not
operate as the seven employees had gone home. They iden-
tified the departed employees as Cook, Bunch, Haynes,
Hayes, McMullin, Gregory, and Simpson, stating that they
did not know why the seven had left. Carrender went to the
front of the building and examined the timecards. All seven
had punched out between 12:32 and 12:33 a.m. As noted,
later in the morning on June 4, Carrender made his initial
report of the incident to Quillen.
On Monday, June 6, 10 a.m., having been summoned by
a call from Quillen's secretary, Haynes. McMullin. Hayes,
Gregory, and Cook reported to the anteroom of Quillen's
office. Although a message was left for Bunch, he did not
come in that day. Simpson, who appeared that afternoon.
was interviewed in the same manner and by the same com-
pany officials as were the others. The employees were called
into the office one at a time to meet with Quillen, Maynard,
and Carrender.
During each of these interviews, Quillen had before him
personnel forms called "Employee Records Report," pre-
pared for each of those to be interviewed. On each of these
forms, Quillen had had typed that the respective employees
had left the job I hour early without their supervisor's per-
mission and the following five questions, with blanks for the
answers:
I. Was your reason an emergency? If yes, what?
2. Why did you leave?
3. Did you request permission from foreman?
4. Did you talk to anyone else about leaving? If so,
why?
5. Did anyone else talk to you about leaving at
12:30?
In conducting the interviews, Quillen asked the respec-
tive employees the questions on the form, writing their re-
sponses on the form.
Quillen related that McMullin, when interviewed, denied
that his early departure had been prompted by an emer-
gency, stating that he had left because Kenneth and Robert
Perry had done so. McMullin testified that although he had
told Carrender that he was going to leave, he had not spo-
ken to anyone else, nor had anyone spoken to him about
leaving early.'
Mike Hayes, McMullin's stepson, also denied that he had
left early on the night in question because of an emergency
or that he had discussed his departure with anyone before
leaving. He told Quillen that he had gone home because
Kenneth Perry had done so, and, as McMullin provided his
transportation to work, he had left with McMullin.'3 Cook,
similarly interviewed, told Quillen that he had gone because
of a headache, without permission and without having spo-
ken to anyone else about leaving.
Quillen testified that Billy Haynes, when asked, stated
that he had left because he wanted to. Haynes conceded
12 McMullin testified that he did not refer to the Perrys at the interview
merely in the context of their having left early, but that their absence meant
that there would not be enough men to operate the saw. He related that he
earlier had told Carrender he was leaving because he had worked 9 hours
and, at the interview, had told Quillen that the Company was working the
men to death.
i3 Respondent's account of the interview with Hayes is not disputed.
that he had left without permission but stated that he had
told Carrender that night that he was going home early.' 4
Rexel Gregory, according to Quillen, stated during his
interview that he had left because he wanted to. When
asked if anyone else had told him to he could leave, Greg-
ory, a large man, retorted that no one told him what to do,
Quillen or anyone else. They could ask, but they could not
tell him what to do. Gregory then began to use foul lan-
guage and was immediately discharged.'5
Quillen testified that Everett Simpson, during his inter-
view, stated that he had left early because he had to attend
a funeral the next day and wanted to get some sleep. In
response to Quillen's further queries, Simpson, although de-
nying that he had received permission to leave on the night
in question, did explain that I or 2 days earlier he had
asked Carrender if he could go to the funeral. Simpson de-
nied having spoken to any employee about leaving early.'6
All the above employees thus interviewed on June 6, ex-
cept Gregory, who was terminated immediately, were told
that they were subject to discharge and were instructed to
report to the office the next morning to learn what action
the Respondent planned to take. The employees came back
on June 7 as directed and were separately informed by
Quillen of their immediate discharges. They each received a
copy of their "Employee Records Report" showing that
they had been terminated for "misconduct and insubordi-
nation."
The remaining participant in the walkout, Owen Bunch,'
called Quillen on Wednesday, June 8. When Quillen asked
why he had not come to his office for a hearing, Bunch
replied that he had heard that Quillen had pulled his card
and assumed that he was fired. Quillen testified that he then
told Bunch that Carrender had reported that he had
clocked out early on June 3-4 without a valid reason. Ac-
cordingly, Bunch was told that he was fired and to come in
for his pay. When Bunch appeared, Quillen, as with the
others, gave him a copy of his "Employee Records Report,"
which showed that he, too, had been discharged for "mis-
conduct and insubordination."
During the afternoon of June 6, after the employees un-
der discipline had been interviewed, Quillen summoned em-
14 Haynes initially testified that, when called into Quillen's office, he re-
sponded to the questions asked by declaring that the men had gone home
early because they had worked their hours and were tired of working, that it
was his belief that a man did not have to work all the time. To this, Quillen
had replied that the men would work to any "damn time he told them."
However, on further examination, Haynes was certain only that when Quil-
len opened their conversation by asking if he had taken the notion to go
home he had said yes. Haynes could not recall whether he also had stated
that the men were tired of working all the time. In view of Haynes' uncer-
tainty, I credit Quillen's account.
' Gregory testified that at the start of the interview Quillen told him that
their meeting was on the subject of being fired. Gregory had replied that
others could come and go anytime and nothing was said. In response to
Quillen's questions, he declared that he had left because Kenneth Perry had
been laughing and joking about leaving and because he had worked his 9
hours. Gregory stated that both he and Quillen had cursed at each other and
that when Quillen handed him his check, telling Gregory that he did not
want to see him on the Respondent's property any more, Gregory had told
Quillen "to shove it up his tail."
16 Simpson did not testify at the hearing.
7 Bunch, who also did not testify at the hearing, had first been employed
by the Respondent on October 3, 1976, and, for various infractions, had been
terminated by the Respondent twice before, in November 1976 and Febru-
ary 1977. He had begun his most recent employment with the Respondent
on May 13.
616
J. P. HAMER LUMBER COMPANY
ployees Carol Branscum, Lester Loveless, Kenneth and
Robert Perry, and William Decker to his office, where he
met with them one at a time, again in the presence of May-
nard and Carrender. These employees related that at least
one of the seven discharged employees had asked each to
leave with them at 12:30 a.m. Loveless told Quillen that he
had been approached by Bunch, Hayes, and McMullin but
had refused to go with them. Branscum related that on the
night in question she had been asked to leave at 12:30 by
Haynes, Cook, McMullin, and Simpson but had refused.
Decker and the Perrys also stated some of the seven em-
ployees had invited them to leave but that they, too, had
declined, the Perrys having received permission to leave
early that night.
Quillen testified that he arrived at the decision to termi-
nate the seven employees after discussing the matter further
with Maynard and Carrender early on the morning of June
7 and that the discharges were consistent with measures
taken in the past as to employees who had left work before
the end of their shift without valid explanation or permis-
sion.8
As requested, while this case was in the investigatory
stage, Quillen wrote a letter, dated July 25, to the Regional
Director, setting forth his reasons for having discharged the
seven employees, noting their early, unauthorized depar-
tures and the various employee interviews conducted on
June 6 with employees who had participated in the walkout
and those who had refused to take part.
Quillen, in his letter, quoted a passage from the employee
handbook, "Your Job And Ours," which required that em-
ployees who felt unavoidably obliged to attend to personal
matters during working hours request permission from their
supervisors, who, depending upon the urgency of the re-
quest, would determine when the employee could best be
spared.9
Quillen stated in his letter that Gregory had been termi-
nated on June 6 for having used "abusive language and
obscenities" to his supervisor in violation of one of the
Company's posted work rules, whereby employees were
subjected to discharge for insubordination. The other six
employees, it was explained, were terminated because of
their attempts to persuade other employees to leave with
them, in violation of another rule, providing for the dis-
charge of employees who instigated or counseled others to
engage in a work stoppage or slowdown.
As noted, those dischargees who appeared and testified,
Hayes, Haynes, McMullin, and Gregory, related that they
had left the April meeting where the work schedule had
been changed with the belief that the hours established af-
ter the first vote would be those effectuated and, accord-
ingly, that the work hours on Mondays through Wednes-
days would be from 3:30 p.m. to 1:30 a.m. and on
Thursdays and Fridays their shift properly should be re-
leased at 12:30 a.m.
"Quillen recalled that he had refused requests to reinstate Bunch and
Haynes after the) were terminated.
'9 Quillen presumed that the employee handbook and its predecessor had
been distributed to all employees but was not certain that this was being
done continuously or that the affected employees actually had received cop-
ies. However, certain portions of the handbook. relating to rules for disci-
pline, also referred to in his letter, had been reproduced and posted on the
bulletin board.
Billy Haynes testified that after the work hours were re-
scheduled in April he continued to complain to Carrender
two to three times a week about the number of overtime
hours he was being compelled to work, to no effect. Haynes
related that on Friday, June 3, before the start of the shift,
Carrender had told him that they were going to work 9
hours that night and conclude the shift by 12:30. However,
at around 10 p.m., Carrender went around the plant and
told Haynes and other employees that they would have to
work longer. Haynes related that he and others on the shift
were angered by this news and began to talk among them-
selves about going home at 12:30 anyway when their 9
hours were up. During a break, Haynes spoke to employees
Wayne Genoe, "Little Red" Strunk, Rexel Gregory, and
one or two others about leaving at 12:30, telling them that
he was tired of working so long. Genoe, at that time, had
agreed to leave with Haynes but ultimately did not. During
another break, Haynes also spoke to employee John Chan-
ey about leaving, but Chaney, stating fear of discharge, had
refused to go along. That night Haynes also discussed leav-
ing work at 12:30 with Simpson, Hayes, and McMullin.
Haynes related that at about 10 that night he told Car-
render that he was going home at 12:30 because his 9 hours
would then be up. Carrender replied that if he did he would
be fired. At midnight Haynes told Carrender that he and
McMullin were going home when their 9 hours were up, at
12:30. Carrender's response was that he had better not go.
At about 12:30 a.m., Haynes saw Simpson, McMullin,
and Hayes punch out and leave. Haynes then did the same,
departing with Gregory. Haynes thereafter was interviewed
on June 6, as described above, and told of his termination
on the following day. 0
Paul McMullin testified that at about 10 p.m. on June 3.
during a break with other employees, including Haynes,
Bunch, and Gregory, the long working hours required by
the Respondent were discussed, and some of those present
decided that when their 9 hours of work that night were
completed, at 12:30, they would go home.
Also in the vicinity of 10 p.m., while in the file room,
McMullin told Carrender that he was leaving at 12:30, as
by then he would have put in the 9 hours he was supposed
to work. Carrender did not reply. Later that night, Simpson
asked McMullin if he was going to go home at 12:30. When
McMullin replied, for the above reasons, that he would,
Simpson stated that he, too, was going to leave.
On the night in question, McMullin had been operating
the knot saw, which he cleaned before leaving. McMullin,
too, was interviewed on June 6 and terminated the next
day.
Mike Hayes testified that he did not tell Carrender or any
other management representative that he was planning to
leave work early but related that during the course of the
June 3-4 shift he agreed with his stepfather, McMullin, that
they would leave after working 9 hours that night. Also,
during their 10 p.m. break, Hayes had asked Gerald Cook if
"I Approximately 2 weeks after his discharge, Haynes had a chance meet-
ing with Carrender, who suggested that if Haynes went back and saw Quillen
the latter would put him back to work. However, when Haynes did go to see
Quillen at the plant, Quillen told Haynes that he did not want to see him,
that he had a hell of a nerve coming back, and that before he would rehire
Haynes. he would shut down the whole place.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would join him and other employees in protesting the
work hours. Cook said that he would. Another employee,
Forrest McDaniel, also agreed to join the protest but ulti-
mately remained on the job. Although at 12:30 he was
working near Carrender in the rear of the plant, Hayes,
without telling Carrender, then walked to the front of the
plant, punched out, and left with McMullin and the oth-
ers.2
Rexel Gregory 2 testified that on the night of June 3,
while on break, he, Haynes, Simpson, and Hayes talked
about working their 9 hours that night and then punching
out. At around 10 p.m., Gregory, while working on the glue
line, told an employee named Foster that he and some
other employees were going to go home at 12:30 a.m. In
response to Gregory's invitation to join them, Foster said
that he, too, would go but later did not. At about 12:30,
before leaving, Gregory called out to Carrender, then some
20 feet away, "Cut it off, we are going home at 12:30."3
Gregory left with the others and, as noted, was fired dur-
ing his June 6 interview, a bit earlier than the others, having
used strong language to Quillen.
The record reveals that nothing was said by the employ-
ees during their June 3 discussions as to what they would do
about leaving work early in future weeks. Their talk merely
had centered on their weariness and determination on the
day in question. At no time before discharging them did the
Respondent ask the affected employees whether they there-
after would refuse to work until 1:30 a.m.; nor were any
warned that a continued insistence on leaving early would
lead to discharge.
B. Discussion and Concluding Findings
Administrative Law Judge Goerlich, in his Board-ap-
proved decision in Oklahoma Allied Telephone Company,
Inc.,2 set forth applicable principles in determining the ex-
istence of concerted activity. Judge Goerlich noted that
when an employee's activities are not solely by or on behalf
of himself but are with or on behalf of other employees, and
his relevant grievance is inextricably enmeshed with the
complaints of other employees and could not be adjusted
favorably without benefits from such adjustment flowing to
the other employees similarly situated, the employee's ac-
tions taken in furtherance of such a grievance are con-
certed. The cohesiveness of concerted activity need not be
more than a suggestion of group action. In fact, the exis-
tence of a group need not be communicated to manage-
ment.25 The Board has held that (210 NLRB at 920):
"Even individual protests are protected as concerted
activity if the matter at issue is of moment to the group
21 Approximately I month after his discharge on June 7, following his
interview of the day before, Hayes, too, coincidentally encountered Carren-
der, who told him that if he went to see Quillen the superintendent would put
him back to work. However, when Hayes, following this suggestion, went to
Quillen's office, he was told that the Company did not need anyone.
:2 Gregory began his employment with the Respondent on April 15.
2' In view of the distance and intervening machinery in the plant, I credit
Carrender's testimony that he did not hear Gregory shout that he was leav-
ing. Gregory did not otherwise attempt to communicate his departure to
Carrender.
U210 NLRB 916 (1974).
25 Hugh H. Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1349 (3d Cir.
1969).
of employees complaining and if the matter is brought
to the attention of management by a spokesman, vol-
untary or appointed for that purpose, so long as such
person is speaking for the benefit of the interested
group." Carbet Corporation, 191 NLRB 892; see also
Hugh H. Wilson Corporation, 171 NLRB 1040; The
Barnsider, Inc., 195 NLRB 754 and Guernsey-Muskin-
gum Electric Cooperative, Inc., 124 NLRB 618.
The undisputed testimony of the employees in the instant
case establishes that they discussed among themselves the
common problem posed by their many hours of overtime
and what their responses should be. Many had done so
more than once. These conversations, addressed to a shared
problem, provided mutual assurance and affected the re-
solve of these men to take the course they ultimately pur-
sued. Although only two of the employees informed the
Respondent that they would not work until 1:30 a.m., it
could be concluded from the record herein, in the light of
the foregoing principles, that no employee was alone either
in his action or his interest. As in Oklahoma Allied Tele-
phone Company, supra, the grievance of each was enmeshed
with the complaint of the others, and all would have bene-
fited from the adjustment of the matter. I therefore con-
clude that the dischargees acted concertedly when they re-
fused to work the additional hour and walked out.
Noting the cohesive timing of the refusals by the employ-
ees to work on the night in question past 12:30 a.m., as
shown in the timecards, in the context of their common
interest in the shared problem, I conclude that the Respon-
dent knew of the concerted nature of the dischargees' con-
duct when it took action against them. Their intent to leave
had been brought to Carrender's attention in advance, and
Carrender, admittedly, did nothing to check out the matter.
I find his testimony that he did not know what was happen-
ing that night to be incredible. Any lack of awareness by
Carrender of the events developing around him was based
on a deliberate disregard.
Rather, I credit the testimony of Haynes and McMullin
that they had told Carrender twice and once, respectively,
of their intent to leave at 12:30 after 9 hours' work, as this
is consistent with other undisputed evidence that Carrender
had received notice of the walkout and comports with the
general atmosphere in the plant at the time. Carrender also
had known earlier of dissatisfaction with the long working
hours, as Haynes credibly testified he had complained to
Carrender on this subject an average of two to three times a
week and McMullin, too, had made prior protest. Carren-
der's knowledge in this area is imputable to the Respon-
dent. Quillen, too, on the facts herein, including the as-
cribed information, must or should have come to the same
realization and recognized that the simultaneous departure
of seven employees was more than coincidental? Certainly,
by the following week, when the terminations were formal-
ized, the Respondent had had sufficient opportunity for
overview to have recognized the concerted nature and pur-
pose of its employees' protest. The Respondent's disinclina-
tion to do so does not constitute a defense.
This conclusion is not altered by the dischargees' conduct
26 Except for Bunch, the Respondent offered no evidence that the dis-
chargees had poor work records.
618
J. P. HAMER LUMBER COMPANY
during the June 6 interviews when. individually confronted
by Quillen. Maynard, and Carrender. with their positions in
jeopardy, they generally vacillated and gave irrelevant rea-
sons for their walkout. As found from the credited evidence,
these employees' earlier concerted activity and its purpose
were already known to the Respondent. Their activity did
not lose any warranted protection because, in the circum-
stances of the interviews, they tried to keep their jobs.
In Polytech, Incorporated,2 ' the Board distinguished John
S. Swift Company. Inc.,'8 from N. L.R.B. v. Washington Alu-
minum Company, Inc,2 and First National Bank of
Omaha,10 upon which the General Counsel principally re-
lies.
In Washington Aluminum, supra, as summarized in Polv-
tech, supra, the Supreme Court held that when a group of
unrepresented employees spontaneously ceased work after
reporting to their jobs because of their dissatisfaction with a
condition in the plant, their concerted action was entitled to
the Act's protection although the stoppage had occurred
without any advance notice to the employer and there had
been no prior demand for a change in the prevailing work-
ing condition.
In the subsequently arising First National Bank of Omaha
case, supra, the Board held, with court approval, that a
previously unannounced concerted refusal by a group of
unrepresented employees to work overtime, inspired by
their dissatisfaction with the employer's overtime policies,
was presumptively protected concerted activity. The hold-
ing made clear that the stoppage did not lose its protected
nature because it was limited in duration to the overtime
hours and was unaccompanied by any affirmative indica-
tion as to what the employees intended to do in the future if
the employer continued to maintain the existing overtime
policies.
In Swift, supra, the Board held that the concerted refusal
by employees to work overtime was unprotected even
though the employees had not previously engaged in such
conduct. In that matter, the walkout occurred during bar-
gaining negotiations and the employees had previously in-
dicated to their employer that they would use the tactic of
refusing to work overtime as a means of enforcing the em-
ployer's concessions in bargaining. The employer thereupon
notified each employee that he could not remain employed
unless he expressed the willingness to comply with the em-
ployer's orders in the future. The employees refused to fur-
nish the requested assurances. As the Board noted in the
Omaha and Polytech cases, Swift and other cases in its line
are distinguishable from the situation subsequently pre-
sented in First National Bank of Omaha in that in Swift the
employees' refusal to perform the assigned overtime work
was in affirmation of their previously announced intention
of embarking on intermittent or recurring strikes as a bar-
gaining tactic. Polvtech sets forth the reasoning in Swift (in
which it was held that concerted refusals to work overtime
were unprotected) as follows (195 NLRB at 696):
"[W]hen employees engage in repeated work stoppages
27 195 NLRB 695. 696 (1972).
21 124 NLRB 394, 396 (1959). enfd. 277 F.2d 641 (7th Cir. 1960).
29 370 U.S. 9 (1962).
30171 NLRB 1145 (1968). enfd 413 F2d 921 (th Cir. 1969).
limited to a portion of the working day, they are
plainly unwilling to assume the status of strikers-a
status contemplating a risk of replacement and a loss
of pay ... employees cannot properly seek to maintain
the benefits of remaining in a paid employee status
while refusing to perform all the work they were hired
to do."
The Board, in Polytech, from its above analysis of the
Washington Aluminum, Omaha, and Swift cases, found (195
NLRB at 696):
. . . the existence of a presumption that a single con-
certed refusal to work overtime is a protected strike
activity; and that such presumption should be deemed
rebutted when and only when the evidence demon-
strates that the stoppage is a part of a plan or pattern
of intermittent action which is inconsistent with a
genuine strike or genuine performance by employees of
the work normally expected of them by the employer.
In the present matter, as in Washington Aluminum,
Omaha, and Polytech, the employees are unrepresented and
do not have the benefit of established procedures to protest
undesirable working conditions.' As in Washington Alumi-
num and Polytech, their work refusal was not preceded by
specific demands upon their employer, and their rejection
of the overtime assignment included no discussion with the
Respondent of future plans. The evidence did not show that
the refusal by these employees to accept the 10-hour shift
on June 3-4 was part of a plan or pattern of intermittent
action inconsistent with a genuine strike or performance by
1j The Respondent, citing Washington Aluminum. Polvtech, Incorporated
N.L.R B v. Sen-Air, Inc. 401 F.2d 363 (lOth Cir. 1968); and Advance Indus-
tries Division-Overhead Door Corporation v. N.L.R.B.. 540 F.2d 878 (7th Cir.
1976). contends that the walkout herein was unprotected, as the Respondent
had published a grievance procedure through which the employees were
bound to have pursued their complaint. The Respondent refers to a proce-
dure it unilaterally had imposed before the advent of the Union whereby
employees could bring complaints to management's attention through their
supervisors. The final steps was a "hearing" in Quillen's office. In the Board's
decision in Advance Industries Division-Overhead Door Corporation, 220
NLRB 431. 432 (1975). by which, of course, I am bound, it was found that
"the existence of a grievance procedure unilaterally established by Respon-
dent does not provide a sufficient basis for denying the protection of the Act
to the ... employees." there distinguishing between that type of grievance
procedure and one reached mutually through the collective-bargaining pro-
cess. Although the court did not agree that the grievance procedure in Ad-
vance Industries should be discounted as unilaterally imposed, the circum-
stances are distinguishable, as the employees in that case had seriously
compromised the Employer's property right by refusing to leave the plant,
the court found no evidence that the grievance procedure was ineffective or
sham and, in such circumstances, found that the employees could not justify
their refusal to leave the plant on the grounds that no other method was
available to present their grievance. In the present case, the employees' ac-
tions were less extreme. The employees did not occupy the Respondent's
premises but merely left work an hour early. In addition, the "hearing" in
Quillen's office, which culminates the Respondent's grievance procedure, as
the evidence establishes, is also associated with the Respondent's disciplinary
procedure and symbolizes the Respondent's control.
The other cases cited by the Respondent are not supportive. In Washing-
ton Aluminum, Serv-Air. Inc., and Poly tech, Incorporated, the respective tribu-
nals, in finding violations, cited that the employees had no bargaining repre-
sentative and no established or structured grievance procedures. As in the
Board's A4dvance Industries decision, a reading of these cases indicates that
the referred grievance procedure means one established contractually by mu-
tual agreement.
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the work normally expected of them, so as to
rebut the presumption prescrbed in Polvech.32
I therefore conclude that the Respondent's discharge of
the employees was violative of Section 8(a)( 1) of the Act."3
IV. THE EFFEECI OF THE UNFAIR LABOR PRACTICES UPON
(C )MMERC E
The activities of the Respondent set forth in section 111,
above, occurring in connection with the Respondent's op-
erations described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent violated Section
8(a)( ) of the Act by discharging Billy Haynes, Paul
McMullin, Mike Hayes, Gerald Cook, Everett Simpson,
Owen Bunch, and Rexel Gregory, I will recommend that
the Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and reimburse them for any loss of pay and other
employee benefits they may have suffered. Backpay and
interest thereon shall be computed in the manner described
in F W. Woolworth Company3 4 and Florida Steel Corpora-
lion. '5
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case. I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging Billy Haynes, Paul McMullin, Mike
Hayes, Gerald Cook, Everett Simpson, Owen Bunch. and
Rexel Gregory, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed them in Section 7 of the Act and has thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section IO(c) of the
Act, I hereby issue the following recommended:
32 No merit is found in the Respondent's contention that Gregory's use of
strong language to Quillen during the June 6 interview warrants denying him
reinstatement. The burden to establish a basis for denial of reinstatement is
upon the party seeking to block reinstatement. Big "G" Corporation, 223
NLRB 1349 (1976). The statements attributed to Gregory were nothing more
than rough language by a man under stress of discharge, and there is no
evidence that violence was intended or that it occurred. Asplundh Tree E.x-
pert Company. 220 NLRB 352, fn. 2 (1975). Accordingly, the Respondent's
burden in this regard has not been met.
13 Also see Florida Steel Corporation, 221 NLRB 554, 558-559 (1975).
- 90 NLRB 289 (1950).
35 231 NLRB 651 (1977). See. generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
ORDER 36
The Respondent, J. P. Hamer Lumber Company, Divi-
sion of Gamble Brothers, Inc., Burnside, Kentucky, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
by discharging or in any other manner discriminating
against them for striking, conducting a work stoppage, or
engaging otherwise in concerted protected activities.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer Billy Haynes, Paul McMullin, Mike Hayes,
Gerald Cook, Everett Simpson, Owen Bunch, and Rexel
Gregory immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of the
discrimination against them, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Expunge from its files the discharge notices to the
above-named employees issued in connection with their
protected concerted walkout in refusing to work additional
overtime on June 4, 1977, and refrain from using them as
grounds for further disciplinary action against these em-
ployees.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its Burnside, Kentucky, facility copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
1e 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 recoinmended Order herein shall, as provided by 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.
"7 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
620