Labor Ready, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1656 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1656
Labor Ready, Inc. and Donald Robinson. Case 20–
CA–28946–1
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On October 27, 1999, Administrative Law Judge Mi-
chael D. Stevenson issued the attached bench decision
and certification. The Respondent filed exceptions and a
supporting brief, the General Counsel filed an answering
brief, and the Respondent 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 decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Labor
Ready, Inc., San Francisco, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
all its facilities in San Francisco, California and else-
where in the United States copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees customarily are posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event, that during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 17, 1998.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge, for the reasons set forth in the judge’s
opinion, that the Respondent’s “no walk-off” rule is overbroad in viola-
tion of the Act. Respondent asserts that the order proposed by the
judge would prevent Respondent from terminating an employee who
decides to walk off the job “to go to a tavern for a beer.” We note,
however, that the Respondent could promulgate an appropriately nar-
row rule that would allow it to terminate an employee under these and
similar circumstances.
3 The judge made a minor inadvertent error in the Excel Container,
Inc., 325 NLRB 17 (1997) date in his Order. We hereby correct it.
4 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.”

Mary Vail, Esq., of San Francisco, California, for the General
Counsel.
J. Markham Marshall, Esq., Preston, Gates & Ellis, of Seattle,
Washington, for the Respondent.
BENCH DECISION AND CERTIFICATION
MICHAEL D. STEVENSON: I heard this matter on Octo-
ber 6 and October 7 (closing arguments by telephone), and
delivered a bench decision as provided in Section 102.35(a)(1)
of the Board’s Rules and Regulations on October 13, 1999, by
way of a telephone conference call with all parties. Thereafter
the hearing was closed. In that decision, I concluded that Re-
spondent violated Section 8(a)(1) of the Act by terminating two
discriminatees, by making a coercive threat, and by promulgat-
ing, maintaining, and enforcing an overbroad company rule.
My bench decision containing my findings of fact and con-
clusion of law is set forth in the transcript of this proceeding at
page 263 through page 288. A copy of those transcript pages is
attached immediately below. Thereafter, I have attached hereto
a Bench Decision Supplement containing, a section entitled
“Remedy,” my recommended Order in this case, and the Notice
to Employees that must be posted by Respondent under the
terms of my recommended Order. In accord with Section
102.45 of the Board’s Rules and Regulations, I hereby certify
the accuracy of the portion of the transcript appearing below,
and I further certify that the transcript, together with the Bench
Decision Supplement constitutes my entire decision in this
case.
CONCLUSIONS OF LAW
1. Respondent, Labor Ready, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent violated Section 8(a)(1) of the Act, as alleged
in the complaint by, on or about January 17, 1999, terminating
Carlton Poward and Timothy Valley by, on the same date, act-
ing through its supervisor and agent, Russel Cheek, threatening
employees that they would be discharged if they walked off the
job; and by promulgating, maintaining, and enforcing a com-
pany rule stating that employees who walk off a job will be
discharged.
3. The violations described in Paragraph 2, above, affect
commerce, and unless enjoined will continue to affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix.1 Respondent must also
1 In Olive Garden, 327 NLRB 5 fn. 2 (1998), the Board listed a
number of precedents supporting the posting of the Notice on a com-
331 NLRB 187
LABOR READY, INC. 1657
be ordered to offer immediate and full reinstatement to Carlton
Poward and Timothy Valley, and to make them whole, with
interest, for all losses they suffered because of the Respon-
dent’s unlawful discrimination against them. Backpay shall be
computed in the manner prescribed in F.W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173 (1978).
Finally, Respondent must be ordered to rescind the rule in ques-
tion.

BENCH DECISION
(VIA CONFERENCE CALL)
[Errors in the transcript have been noted and corrected.]
265
JUDGE STEVENSON: Good afternoon. This is my bench
decision in the case Labor Ready, Inc., 20–CA–28946.
This case was tried at San Francisco, California on October
6, 1999. Closing arguments were given by telephone on Octo-
ber 7, 1999. And the decision, which is what I’m in the process
of giving at this moment, was also given by telephone on Octo-
ber 13th.
The charge was filed by Donald Robinson on February 11,
1999, and a first amended charge was also filed by Robinson on
May 28, 1999. Respondent is a Washington State Corporation
with principal offices located in Tacoma, Washington. Re-
spondent maintains local offices at places of business in various
cities throughout the United States, including several offices in
the City of San Francisco, California. It engages in the busi-
ness of providing temporary workers to employers engaged in
the construction, landscaping and light industrial industries
throughout the United States. For the calendar year ending
December 31, 1998, Respondent, in the course and conduct of
its business operations, performed services valued in excess of
$50,000.00 in states other than the State of California. Respon-
dent admits that it is an employer engaged in commerce within
the meaning of Sections 2(2)(6)(7) of the Act.
The issues in this case are whether the Respondent
266
violated Section 8(a)(1) of the Act by, one, promulgating,
maintaining and enforcing an allegedly over-broad rule stating
that employees who walk off a job will be discharged. Two,
through office manager Russell Cheek, threatening employees
that they would be discharged if they walked off the job. And
three, by discharging two employees, Carleton Poward and
Timothy Valley for walking off the job.
For all times material to this case, I find the following facts:
Respondent maintains one of its offices located on the 4800
Block of Mission Street in San Francisco, California. That of-
fice is managed by Russell Cheek, a statutory supervisor and
agent of Respondent. Also employed, as an assistant to Mr.
Cheek, was Tiffaney Dressen, who worked for the Respondent
between October of 1986 and March of 1999, when she volun-
tarily left for another job. Cheek testified as an adverse witness
for General Counsel and for the Respondent, and Dressen testi-
fied as a Respondent witness.

pany-wide basis. The Board distinguished the precedents in Olive
Garden but I find they are directly applicable to my Order requiring
Respondent to post the notice at all of its various facilities. The rule in
question, found unlawful herein is part of an established company
policy and therefore company-wide posting is appropriate.
Respondent maintains its daily labor business for persons
frequently down on their luck, and in this includes addicts,
people of little education or experience with regular employ-
ment, and, on occasion, ex-convicts. I also find that the em-
ployees of Respondent include people with difficulty in relating
to other people with authority.
Respondent obtains its source of labor from word of mouth,
267
as was true in this case, responses to newspaper ads, and walk-
ins off the street. As office manager, Cheek has a dual job first
to recruit and check out his temporary workers, keep them so-
ber and performing their work and, he has another job to recruit
and keep satisfied the customer/clients of Labor Ready, that is
people who will order and use the temporary labor recruited by
Cheek and other managers.
During all times material, Respondent has posted and main-
tained at its San Francisco facility, and other facilities, a rule
stating that employees who walk off the job will be discharged.
(General Counsel Exhibit 4.)
As posted in the office, the rule in question admits of no ex-
ceptions. However, in the standard applications for employ-
ment, which are filled out by persons seeking employment, the
rule is qualified to a degree, looking now to General Counsel
Exhibits 2, which is the application of Timothy Valley, and
General Counsel Exhibit 3, which is the application of Carleton
Poward, page six of both exhibits, I note the rule referred to
above is qualified by a statement, "Family emergencies, illness
and injuries are the only excusable circumstances for leaving
Labor Ready job sites before the end of a scheduled shift". The
listed exceptions also require notice to the employing office of
applicable circumstances/emergencies.
According to Cheek, the rule is further qualified by him and
other managers who don’t necessarily apply the rule
268
literally, but rather liberally, taking into account any mitigating
circumstances which may exist. Since Cheek is the only man-
ager who testified at the hearing, and he did not refer in his
testimony to any objective guidelines to guide his interpretation
of the rule, I conclude that one manager might not see the same
mitigating circumstances as Cheek does. That is like beauty,
application and interpretation of the rule is in the eye of the
beholder. Most importantly, employees cannot know how a
given manager might view a given set of circumstances, and
this includes Cheek himself. I conclude, therefore, that the rule
rises or falls as it is printed on the wall of the various offices on
which it is posted.
To the extent the employment applications qualifies the --
prohibition, this would create an ambiguity or inconsistency in
the mind of an employee, even those amongst the most sophis-
ticated. And this ambiguity or inconsistency must be resolved
against Respondent for creating it, citing J.C. Penney Company
@ 266 NLRB, p. 1224, (1983) case, and Acme Tile and Ter-
razo, Inc. reported at 318 NLRB, 425, p. 428 at footnote 8,
(1995) case.
In mid January 1999, Respondent received an order to fur-
nish several employees to a job at the Glenview Apartments in
San Francisco, consisting of work to be performed as laboring
services for a landscaping contractor. Cheek told several of the
employees assigned to this job that the job was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1658
269
expected to last for several weeks. Cheek assigned Robert
Cartwright to the job as the point man, who is like a lead per-
son. He was the senior member on the job, having about nine
months experience for working for Respondent at various jobs,
and is currently an employee of Respondent, and was a Re-
spondent witness.
In addition to Cartwright, Donald Robinson, the Charging
Party herein, was assigned to this job. Robinson did not testify
at the hearing, and the General Counsel presents no legal issue
with respect to Robinson.
Cartwright’s primary duty was to get the work ticket signed
by the customer and to act as liaison between the work crew on
site, and Cheek back at the office. In this respect, Cartwright
reported daily by phone to Cheek, and for this and all of his
activities, he was paid fifty cents per hour more than the others
assigned to the job.
Robinson recruited his half brother, Carleton Poward, and
his friend of several years, Timothy Valley, to work for Re-
spondent on the Glenview work site. Valley apparently did not
begin to work until day three of the assignment. Two other
employees, a woman named Anastasia, and a male employee
were also assigned to the job, but they did not testify and did
not play a role in this case.
Robinson drove Cartwright and others to the jobs site begin-
ning on day one of the assignment. On day two, according
270
to Cartwright, there developed a conflict between him and Rob-
inson. This developed when Robinson allegedly made dispar-
aging remarks about Cheek, whom Robinson blamed for his
low pay. When Cartwright objected to Robinson’s remarks,
Robinson supposedly told Cartwright to take the bus to the
work site the next day. Cartwright also testified that Robinson
and Poward took an extended lunch break on day two. How-
ever, Cartwright did not report this to Cheek.
On day three, additional conflict developed between Robin-
son and Cartwright. Both Poward and Valley gave their ver-
sions of this conflict, as witnesses for the General Counsel.
According to Poward, at lunch Cartwright asked Robinson to
buy him a pie and a six pack of beer, but Robinson refused as
this would violate a rule of the company against liquor on the
job site. With that, Cartwright stripped off his shirt and threat-
ened to kick Robinson’s M.F. ass. Valley, recalls it slightly
differently. According to Valley, Cartwright asked Robinson to
give him a ride to get some beer. When Robinson refused, a
verbal confrontation developed. All agreed that Cartwright left
the area for a while, but later Cartwright returned to where the
other men were eating lunch, and told Robinson he was fired
and referred him to Cheek.
In his testimony, Cartwright denied he ever attempted to get
Robinson to obtain beer for him, although he allowed that he
made a joking reference at lunch that a beer would taste nice
271
at lunch time after working hard on day three. Cartwright also
testified that he gave Robinson ten dollars to get him something
at the store, which Poward never got. When Cartwright de-
manded his money back, Poward returned a one dollar bill in-
stead of the ten, and Cartwright never discovered this deception
until Poward had left the work site. Cartwright also claimed
Poward exhibited a knife on day three, in an attempt to intimi-
date him in connection with the dispute with Robinson. I might
add, I do not believe any of this testimony of Cartwright, in-
cluding the claim that Robinson and the others took an ex-
tended lunch break on day two.
It is undisputed that Cheek was called twice by Cartwright,
who complained first that Robinson was acting crazy and
Cheek should come to the job site. The second call reiterated
this and also complained to Cheek that Robinson was throwing
Cartwright’s articles out of his, Robinson’s, car to the ground.
Robinson also called the office, but it isn’t clear to me whether
he spoke to Cheek or Cheek’s assistant, Tiffaney Dressen, to
complain about Cartwright’s asking for beer. This credibility
question is not free from doubt, but so far as I can tell, Robin-
son threw Cartwright’s clothes out of the car after Cartwright
said he was fired. In any event, all agree that Cheek did ulti-
mately go to the job site and observed some of Cartwright’s
articles and possessions on the ground, thrown there by Robin-
son before Cheek had arrived.
272
Robinson was described by Cheek as incoherent and out of
control. Cheek told him to calm down and go back to the of-
fice. At this point, Poward and Valley sided with Robinson and
protested to Cheek that Robinson was being punished for refus-
ing to bring beer on the job site for Cartwright, who was not
present as Cheek talked to Robinson and the two others. Cheek
directed Poward and Valley to cease their protest and return to
work, on threat of never being able to work for Respondent
again. The two men continued their protest saying if he, Rob-
inson, goes, we go too. Cheek then told all three to return to
the office.
On his cellular phone, Cheek called Dressen to alert her to
prepare final checks for Robinson, Poward and Valley, and to
prepare her for a potentially angry demonstration by the three.
The three arrived about five minutes before Cheek, and contin-
ued their noisy protest of Robinson’s treatment, which they had
begun on the job site. This protest consisted of loud voices,
particularly by Valley, who threatened to report Respondent to
the Labor Board. He pounded his fist on the counter, one or
more times for emphasis, and there may have been profanity,
for example, Respondent is a B.S. company, F this and F that,
and I note that only Dressen was in the office for the first few
minutes with the three men.
Once Cheek arrived back at the office and observed the an-
gry protest continuing, he directed Dressen to prepare a
273
document barring Valley and Poward from ever working for
any of Respondent’s offices again. This procedure, called a
“lockout,” is to prevent unsatisfactory employees from merely
applying to a different Respondent office where they are un-
known. Accordingly, Dressen prepared an e-mail to Respon-
dent’s headquarters at Tacoma, Washington. For Valley, the
reason for the lockout reads, "caused disturbance at our job site,
then walked off unauthorized". For Poward the reason states,
"walked off job site unauthorized". Taken from General Coun-
sel Exhibit 7. In that exhibit, there is no reference to any dis-
turbance being made at the office itself.
I turn now to the analysis of the facts and circumstances of
this case. Credibility findings of what happened on site is not
essential to this case, but I credit Poward and Valley over
Cartwright, finding that Cartwright did ask Robinson either to
get beer or to take Cartwright to get the beer. I base this on the
LABOR READY, INC. 1659
consistent positions that Poward and Valley took from the be-
ginning of the incident to the end, and on my reading of the
demeanor of the witnesses. When Robinson refused Cart-
wright’s request, a confrontation developed after which Cart-
wright called Cheek to complain falsely that the men refused to
work or were causing a disturbance. Cartwright then returned
to tell Robinson he was fired, and the latter, Robinson, then
threw Cartwright’s possessions out of the car, and in this re-
spect he may have been assisted by Valley.
274
Although the General Counsel did not take this position, I
find that the evidence amply supports a finding that Cartwright
was an agent of Respondent, which held out Cartwright as
speaking for Cheek and management on the job site. In addi-
tion, Cartwright acted as a conduit between Cheek and the em-
ployees on the job site.
When Cheek arrived at the job site, he appeared to me to ig-
nore house rule number seven, which reads, "No alcohol/drugs
on job", taken from General Counsel Exhibit 5. In his desire to
diffuse the situation, Cheek simply didn’t perform a proper
investigation to find out what had happened.
Before focusing directly on the issues, I find, without legal
significance, that all allegations regarding Robinson were found
by the Region to be without merit. No existing issue in the case
depends on Robinson for validity. Similarly, the fact that no
beer was ever brought to the site is irrelevant and doesn’t affect
any issues in the case.
Events back at Respondent’s office are similarly irrelevant.
First, Cheek made it clear at the job site that Robinson, Poward
and Valley were terminated. In this respect, the board has held,
with the court approval, no set words are necessary to constitute
a discharge, NLRB v. Cement Makers Masons Local No. 555,
reported at 225 Fed. 2d. 168, @ p. 172, Ninth Circuit 1955
case, but rather the test of whether an employee has been dis-
charged depends on the reasonable
275
inferences that the employees could draw from the statements
or conduct of the employer, Penny-power Shopping News, Inc.
v. NLRB, 726 Fed. 2d. 626 @ p. 629, Tenth Circuit 1984.
I find that the credible evidence supports the conclusion that
viewed as an objective matter, Robinson, Poward and Valley
believed they were being fired in circumstances when Cheek
told them to leave the job site. Cheek’s testimony that he never
decided on the lockout until he observed the conduct of Valley
and Poward back at the office, is not credited. It is impeached
by General Counsel Exhibit 7, the e-mail to headquarters, and I
find that the Respondent’s evidence constitutes shifting reasons
for the discharge, which suggests a pretext and were contrived
to mask another potentially unlawful motivation, cite Shattuck
Denn Mining Corporation v. NLRB, @ 362 Fed. 2d. 466 @
p.470, Ninth Circuit, 1966.
When two or more employees jointly participate in withhold-
ing their services for the purpose of pressuring their employer
into resolving to their satisfaction grievances over the rate of
pay, or other working conditions, they engage in a concerted
activity for the purpose of collective bargaining or other mutual
aid or protection within the meaning of Section 7 of the Act,
and it is a violation of the Act for the employer to discharge,
suspend or otherwise interfere with restrain or coerce them for
engaging in such activity. Citing San Diego County Associa-
tion @ 259 NLRB, p.1044, @ ps. 1047 through 1048
276
of the J.D., and the cases cited therein.
The issue in the San Diego County case was whether em-
ployees were fired for falsification of a time card claiming
falsely to be sick, as was claimed by the employer, or whether
they were fired for engaging in protected concerted activity.
The board found the latter, and pointed out that the reason
given by the employer was not the reason for the discharge.
I also turn to the case of Guardian Industries Corporation,
reported at 319 NLRB 542, 1995 case, @ p. 548 of the J.D. In
that case a discriminatee was terminated because he discussed
with a co-worker management’s discipline as it was applied to
another employee, done in a manner loud enough to be con-
veyed to a management representative. In the conversation,
Respondent was criticized for disciplining and subjecting to a
drug test a third employee whose case the discriminatee es-
poused. The ALJ cited the authority of Wilson Trophy Com-
pany v. NLRB @ 989 Fed. 2d. 1502, Eighth Circuit, 1993, and
Meyers Industry, perhaps the board’s leading case on concerted
protected activity, reported at 268 NLRB 493 @ p. 497. The
board found in favor of the discriminatees, finding that they
were engaging and had been punished for engaging in con-
certed protected activity. At page 1508 of Wilson Trophy
Company, the court pointed out, as is true in the instant case,
that none union employees, as well as union, share the right to
engage in concerted activities.
277
Returning to Guardian Industries for a moment, at p. 549 of
that decision, the Board recited the principle that employees do
not lose the protection of the Act because the concerted pro-
tected activity is inaccurate or lacks merit, unless they, the em-
ployees, act deliberately falsely or maliciously, which I do not
find here. Here I find, as was stated before, that Robinson did
refuse to get the beer for Cartwright, however, Robinson did
strew and throw on the ground Cartwright’s possessions, an
activity in which Valley may have assisted. However, I go on to
say that that throwing the articles on the ground was not suffi-
cient for Valley and Poward to lose the protection of the Act,
and in any event there’s no indication that the Respondent re-
lied on that activity to justify their discharge.
Now, in the prior case that I’ve just referred to, that is the
Guardian Industries case, the nub of the issue was criticism of
management. In the NLRB v. Bridgeport Ambulance Service
case, reported at 966 Fed. 2d. @ 725, Second Circuit, 1992, an
employee was suspended and later terminated. Other employ-
ees walked out in protest. At page 729, the court noted the
walk-out constituted concerted activity for the mutual aid and
protection of another. In this case, it was claimed by the em-
ployer that the employees were working at cross purposes to
the union, which represented employees at that job. However,
the court said even when employees are represented by a union,
278
but acted on their own without union authorization, this does
not change the protection that the Act gives those employees by
walking off the job as a protest.
So, in the instant case I find that the conduct of Valley and
Poward was concerted. I find that Cheek knew it was con-
certed, in fact, in his testimony Mr. Cheek threw in one or two
gratuitous references to the fact that Valley and Poward hud-
dled together, held a mini meeting, so to speak, before they
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1660
took the position, if he goes, referring to Robinson, we go too.
So, this seems to me classic concerted and protected activity, as
the two discriminatees were acting to further the interests of the
third employee, Robinson.
As an alternative analysis, I would like to note the case of
Aluminum (A-l-u-m-i-n-a) Ceramics Inc. @ 257 NLRB p. 784,
a 1981 case, for the principle that employees who attempt to
persuade their employer to modify or reverse a management
decision, are also engaged in concerted protected activity. So,
therefore, if you take the view that the two discriminatees were
protesting the treatment of Robinson, or if they were rather
focusing on attempting to get Cheek to change his position,
either analysis, which is not that different from each other,
would lead to the same conclusion that their conduct was pro-
tected.
Shortly, I will arrive at yet another analysis, another alterna-
tive analysis, which is that Valley and Poward’s
279
termination was unlawful because it was the direct result of the
enforcement and application of an unlawful rule, which I will
find below momentarily
In any event, I find now that Valley and Poward’s conduct
did not exceed the bounds of impulsive behavior, which would
make them unfit for reinstatement or remove them from the
protection of the Act. In this respect, I’m referring both to their
conduct on the job site and their conduct back at the office. I
find not just that their conduct was not serious enough, and in
this respect I refer to the testimony of Dressen, who testified as
Respondent’s witness and, on more than one occasion in her
testimony said that she fully understood that the behavior of
Valley and Poward was not directed personally toward her,
although in candor she went on to say that she felt intimidated,
as a woman, and felt threatened by them, notwithstanding her
understanding that she was not being directly threatened by
them. However, I find that her subjective reactions were not
reasonable under the circumstances, and they were not suffi-
cient to remove the behavior of Valley and Poward from the
Act.
To the extent that someone on appeal may disagree with that,
I find in the alternative, to the extent that Poward and Valley’s
behavior at the office was serious, I find that it was provoked
by the Respondent in the res gestae of enforcement and applica-
tion of its unlawful rule.
280
Finally, as still another alternative reason, assuming that it
was serious, assuming it was not unduly provoked by the Re-
spondent, I find absolutely no evidence at all that it was relied
on by the Respondent in order to justify the terminations.
I now move on to find that the rule, I should say I move on
to find that Cheek’s statement at the job site, to Valley and
Poward, that they should cease their protest and return to work,
on threat of not being able to work for Respondent again, I find
that that statement or threat violated Section 8(a)(1) of the Act.
And as authority for that, I note the case of K.N.TV, Inc. re-
ported at 319 NLRB @ p. 447. In that case a statement was
made by a supervisor to a discriminatee, if you are displeased
with the employer’s decision to discharge another employee,
then the supervisor said he did not want them working any-
where in the plant, and this was an implied threat, the Board
held, to terminate the discriminatee. Now, here Cheek’s state-
ment of course was much more direct, it wasn’t implied at all, it
was direct and he flatly stated that the two discriminatees
would be discharged if they didn’t cease their protest. So, I
find that that was a violation of the Act as indicated.
Now, I finally turn to the last issue in the case, which is the
question as to whether the rule that we’ve been talking about is
over-broad, and of course my comments up to now has
281
predicted quite clearly what my finding would be, and I find
that the rule is over-broad and does violate Section 8(a)(1) of
the Act. Now, as authority for this finding, I first of all rely on
the case of Associcion, A-s-s-o-c-i-c-i-o-n, Hospital Maestro,
M-a-e-s-t-r-o, v. NLRB, reported at 842 Fed 2d. 575, First Cir-
cuit, 1985. And in that case the court held that all disciplinary
action taken against the discriminatees, as a result of a rule
banning the wearing of union insignia at all places, at all times,
in the hospital setting was over-broad. The rule must be re-
scinded and, as I stated before, the discipline taken as a result
of enforcement of that rule, is invalid for that reason, as well as
other reasons.
I move on to a second case entitled NLRB v. Vanguard
Tours, Inc., reported at 981 Fed 2d. 62 @ p. 67, Second Circuit
case, 1992. In that case an overly broad rule found by the
Board and the court prohibits discussion of union matters in
non-working time and non-working areas. And the court found
that such a rule as that has a chilling effect on concerted pro-
tected activity, and the court also noted, in a statement that’s
directly applicable to the present case, that there was no evi-
dence that the Respondent in Vanguard told employees that the
rule was to be enforced not as written, but only narrowly. And
the failure to tell employees that there was some less stringent
enforcement, was a factor that the court considered, and that’s
also true in this case.
282
Now, the Respondent, in its closing argument, cited the case
of Lafayette Park Hotel, reported at 326 NLRB No. 69, 1998
case. I want the record to show that I have read and considered
that case and I find that it’s of no assistance to the Respondent
and it can be distinguished on its facts.
Respondent also referred, quite strongly, to the case entitled
Bob Evans Farms, Inc. v. NLRB, reported at 163 Fed. 3d. page
1012, a Seventh Circuit case, 1998. In that case the court held
that a walk-out was not a reasonable means of protest and in
fact it was not protected concerted activity to begin with. I read
that case and, first of all, I note the facts referred to a protest, a
walk-out, over the termination of a supervisor, and the court
noted that a walk-out is a species or kind of strike, and as such,
is generally protected under the mutual aid and protection of
the Act. For a number of reasons, I find Bob Evans Farms is
not helpful to the Respondent.
First, I find that the court did not enforce the Board decision.
And I am of course bound by the Board decision, which I stated
at the hearing itself, citing the case of Iowa Beef Processing for
that statement.
Number two, the protest in question was a protest of a super-
visor’s termination, and the court seemed to leave open the
question whether the protest of a co-employee might be differ-
ently evaluated. And also, of course, they did not deal
283
with the question of an unlawful rule being enforced, which is
true in the present case.
LABOR READY, INC. 1661
In addition to that, at page 1024 of Bob Evans Farms, foot-
note eight, refers to the lack of evidence in the record that
showed employees there, that were supposedly unsophisticated,
there was no evidence to show that they were unsophisticated
individuals who could not appreciate the probable conse-
quences of their actions. Here, I find that Respondent has taken
the position all along that not just Valley and Poward but all or
most of the people they employ are very unsophisticated, un-
educated, inexperienced in life, and therefore this footnote
would seem, by itself, to distinguish the case of Bob Evans
Farms from the instant case.
Respondent also cites the case of Vemco, V-e-m-c-o, Inc. v.
NLRB @ 151, LRRM, p. 2811, a Sixth Circuit case, decided in
1996. In that case the court said for a walk-out to be protected,
there must be some articulation of goals to which the employer
can respond. The court found that lacking in Vemco, but surely
that would not be true in this case, because it was very clear
from the beginning of the hearing, from the beginning of the
facts and circumstances of the case, that Valley and Poward
wanted Cheek, at a minimum, to make a further investigation,
and to treat Robinson in a fairer manner than he was treated.
So, I found that here there was an articulation of the goals that
the employees wished Cheek to respond to.
284
Respondent also cites the case of NLRB v. Marsden, M-a-r-s-
d-e-n, at 701 Fed 2d., p. 238, and in that case, the employees
left a construction job site, because it was raining outside,
without making any demand whatsoever regarding any desired
change in terms and conditions of employment. It’s clear,
based on what I said before regarding the other case, that there
was an articulation of goals in this case.
Respondent also cited the case of Aroostook, A-r-o-o-s-t-o-o-
k, County Regional Ophthalmology Center v. NLRB, reported at
81 Fed. 3d., p. 209, a D.C. Circuit Case issued in 1996. In that
case the court found fault with the employees for lamenting
grievances, in a small medical office, in front of patients. Now,
in this case, there seems to be some difference of opinion about
just who was present on the job site when Cheek arrived. There
was reference to a man with a beard and it turned out that he
was not an owner of the company but just another employee,
apparently, of the landscaping business. In any event of course
neither he nor any other representative of the landscaping con-
tractor testified, so I find in the instant case there was no show-
ing of how the protected concerted activity of the employees
would prejudice or affect negatively the business of Respon-
dent, other than to credit Mr. Cheek’s speculation. And if it
was valid evidence to begin with, of course there should have
been some greater and more reliable evidence, such as a repre-
sentative of the landscaping
285
contractor, and no such person testified. So, I find there was
now showing that the business was affected in any negative
way.
Now, in conclusion of my decision here, I want to do two
things. First, I want to refer very quickly to a case that was
decided not on the basis of the Act, but on the basis of the First
Amendment, that case was entitled Scott v. Meyers, Second
Circuit case decided on August 25, 1999, docket No. 98-7731,
Second Circuit. And in that case there was another rule that
prohibited all transit employees, regardless of whether they are
in contact with the public, from wearing any buttons, badges or
other insignia, and the court held that such an over-broad rule
as that impermissibley restricts First Amendment rights of the
employee to be protected. And the court went on to hold that
the Transit Authority, in their legitimate concerns for harmony,
safety and avoidance of content based distinctions between the
permissible and the impermissible, all of these were not suffi-
cient to justify the over-broad restrictions that were indicative
of the rule in question.
Now, as my last reference here, I want to note the case of
Mast, M-a-s-t, Advertising and Publishing, Inc., reported at 304
NLRB p. 819. In that case the ALJ mistakenly, according to
the Board, relied on the Wright Line analysis to make a final
reference here. The Board said that was an error under the
circumstances and referred to a different case.
What I intend to do here, as my final finding of the case,
286
is to refer first to the Wright Line case, and then also refer, as
an alternative analysis, to the other case relied on by the Board
in the Mast case. In either analysis, we end up in the same
place, which is indicated quite strongly up to now, which is that
the Respondent has violated the Act in all three issues alleged
by the General Counsel.
First of all, if the Wright Line analysis is correct here, Gen-
eral Counsel has the initial burden of establishing a prima facie
case sufficient to support an inference that union or other activ-
ity, which is protected by the Act, was a motivating factor in
Respondent’s actions, alleged to constitute discrimination, in
violation of Section 8(a)(3) or 8(a)(1), as is true here. Once it’s
established, the burden shifts to Respondent to demonstrate that
the alleged discriminatory conduct would have happened even
in the absence of the protected activity. If Respondent goes
forward with such evidence, General Counsel is further re-
quired to rebut the employer’s asserted defense by demonstrat-
ing that the alleged discrimination would not have taken place
in the absence of the employee’s protected activities. And
that’s Wright Line 251 NLRB 1983, a 1980 case enforced 662
Fed. 2d. 899, First Circuit, 1981, cert. denied 455 U.S. 989
(1982), and approved in NLRB v. Transportation Management
Corporation, 462 U.S. 393, 1983.
The finding of a prima facie case is made out where the
287
General Counsel establishes union activities or other concerted
protected activities, employer knowledge, animus and adverse
action taken against those involved or suspected of involve-
ment, which has the effect of encouraging or discouraging un-
ion activity or, in the case of an 8(a)(1), coerces employees in
the exercise of their protected concerted activity. And authority
for that statement is Marmar Brothers 303 NLRB 638, 1991
case, p. 649 J.D.
So, relying on Wright Line case, I find that the General
Counsel has established a prima facie case, that the Respondent
has not met its burden of proof to rebut the prima facie case for
the reasons that I’ve stated up to now. And therefore, Wright
Line would lead us to the decision that I’ve already made.
Now, as an alternative analysis, I turn to the case cited in
Mast by the Board, and that case is Thor Power Tool Company,
reported at 351 Fed 2d. 584 @ 587, and that’s a Seventh Circuit
case, 1965. And that case, according to the Board, is used for
an analysis when employer’s right to engage in concerted pro-
tected activity is allegedly rebutted by behavior of the discrimi-
natees, either during the events in question or, as would be true
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1662
in the instant case, some time afterwards, allegedly back at the
office.
In the Thor Power Tool Company, the court held that an em-
ployee’s right to engage in concerted activity may permit
288
some leeway for impulsive behavior, which must be balanced
against the employer’s right to maintain order and respect. I’ve
already indicated in this decision why I did not feel that the
balance, if Thor Power Tool Company would apply, why the
balance would shift in Respondent’s favor. And I reiterate that
finding now.
So, I find for all the reasons given, that the General Counsel
has proven its case and the facts and circumstances, as I found
together with the legal authorities that I’ve either cited or dis-
tinguished, as the case may be, would lead to the results I found
that the violations of the Act have been established.
Now, this concludes my bench decision. And I want to say
that upon receipt of the transcript from the court reporter, I will
prepare an appropriate order directing the Respondent to re-
scind the rule in question, and directing them to make whole
the discriminatees in question, and any other appropriate cir-
cumstances that may be required by this finding. So, this con-
cludes my statement. I’d like to thank both sides for a case
well tried, and as soon as I get the transcript and shortly
thereafter I will prepare the documents which you will receive
by mail. Thank you again and this completes my statement.
Off the record.
(Thereupon, the decision was concluded.)