Molon Motor & Coil Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1991

302 N.L.R.B. 138 (N.L.R.B. 1991)

138
302 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Accordingly, we need not pass on whether the Respondent could have law-
fully discharged the employees for staying in the breakroom.
2 Unless otherwise stated all dates are 1989.
3 No employees were disciplined for their activities on February 13.
4 The judge found that he could not determine whether management in-
formed the employees either ‘‘go back to work or you’ll be terminated’’ or
‘‘if you don’t return to work or leave the premises we’ll consider you trespass-
ers and we’ll terminate you.’’ Although there may also have been statements
by management officials to the effect that employees should either return to
work or leave the premises, we find, in light of Bodziak’s admissions, that
the employees were threatened with being discharged for refusing to work.
Molon Motor and Coil Corp. and Local 1031, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Case 13–CA–28456
March 21, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 15, 1990, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. Both the
General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondent filed
an answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent did not violate
Section 8(a)(1) by discharging employees who, in sup-
port of a demand for higher wages, remained in the
Respondent’s breakroom while refusing to work. The
General Counsel and the Charging Party except, con-
tending that the discharges were unlawful since the
employees were engaged in protected concerted activ-
ity which did not lose the protection of the Act and,
in any event, the employees were terminated for refus-
ing to work and not for remaining in the breakroom.
We agree with the General Counsel and the Charging
Party that the discharges were unlawful as the Re-
spondent’s actions were motivated by the employees’
refusal to work.1
The Respondent manufactures electric motors at its
Palatine, Illinois plant. Thirty-two production employ-
ees work on the first shift which begins at 6 a.m. and
ends at 2:30 p.m. On Monday, February 13, 1989,2
after clocking in, 10 to 20 of the production employees
went to the employees’ break area and refused to
work. The employees informed the plant manager, Don
Stratton, that they would not return to work unless
they got a pay increase. Stratton told the employees he
would communicate their complaint to Respondent’s
senior management and the employees returned to
work. During the remainder of the day, management
met with the employees individually and in groups to
determine whether the employees had concerns other
than their wages. Management informed the employees
that they would provide the employees with more in-
formation regarding the salary rate at the end of the
week. The employees were paid for a full day on Feb-
ruary 13.3
On the evening of February 13, a group of employ-
ees met with a representative of the Union. Some of
the employees, whose native language is Spanish, left
the meeting with the impression that if they left the
Respondent’s premises for any reason during a conflict
with the Respondent, they would be deemed to have
abandoned their jobs and would be ‘‘laid off without
any right to go to unemployment.’’ On February 17,
the Respondent met with the employees and read a let-
ter in both Spanish and English describing the Re-
spondent’s financial difficulties, and its inability to
grant the employees a wage increase.
On Monday, February 20, after clocking in at 6
a.m., 22 of the production employees went to the
breakroom, refusing to work unless they got a pay in-
crease. During the next 5 hours Respondent’s manage-
ment officials tried to convince the employees to return
to work. Management made statements like, ‘‘please
return to work,’’ and ‘‘we can’t promise you increases
because the Company is in a crisis.’’ The Respond-
ent’s comptroller also spoke to the employees, giving
them a detailed account of the Respondent’s financial
situation and the reasons for Respondent’s inability to
grant the employees a wage increase at that time. After
listening to the Respondent’s explanation, the employ-
ees continued to refuse to return to work.
According to Donald Bodziak, the Respondent’s di-
rector of manufacturing, at approximately 11:10 a.m.
he told the employees, inter alia, ‘‘[E]ither you go to
work or you will be terminated.’’ Bodziak further testi-
fied that at 11:20 a.m. or 11:30 a.m. in his final re-
quest to the employees he stated, ‘‘This is my final re-
quest. If you do not go back to work, you will be ter-
minated for refusing to work. If you don’t go back to
work or don’t leave, I will call the police.’’4 Even
after Bodziak’s final request, the employees refused to
leave. At 11:30 a.m. Bodziak called the police who ar-
rived a few minutes later. The employees left the
building at 11:45 a.m., after the policemen informed
them that they could be arrested for trespassing and
would have to post bail. Bodziak did not file criminal
trespassing charges against the employees.
A few days later, a number of the employees who
had participated in the work stoppage inquired whether
they could return to work. The Respondent responded
that they could not return to work because they had
been terminated. In a memo to the ‘‘Personnel File’’
from Bodziak stating the subject as ‘‘Terminations-Re-
139MOLON MOTOR & COIL CORP.
5 Thus, at the hearing counsel for the General Counsel asked Bodziak, ‘‘So
what was the cause they were terminated for? Is the cause they were termi-
nated for clearly stated in the memo you wrote for the personnel files?’’
Bodziak responded, ‘‘Basically refusing to work.’’
6 The judge found that the employees during their stay in the breakroom
were peaceful, that they did not keep other employees from using the
breakroom, and that the employees entered the Respondent’s premises when
the shift began and left before their shift ended. However, the judge also found
that the gathering in the break room had ‘‘undoubtedly . . . adversely affected
the work of those employees who did not join in the refusal to work’’ since
the breakroom is next to the production area.
7 This version of the events was reinforced by the Respondent’s attorney’s
opening statement at hearing, in which he described that the employees were
told that if they did not go back to work they would be terminated.
8 In concluding that the Respondent violated Sec. 8(a)(1), Member Oviatt re-
lies just on this document, which he finds clearly conveyed the Respondent’s
decision to terminate the employees ‘‘for refusing to work,’’ a protected con-
certed activity.
9 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
fusal to Work’’ and listing the 22 employees, the fol-
lowing statement is included:
At approximately 11:30 a.m. on Monday, Feb-
ruary 20, 1989, these individuals were asked ei-
ther to go to their regularly assigned work stations
and start to work, or leave the premises since they
were being terminated for refusing to work. They
would not return to work, and refused to leave the
premises. At this time the above listed individuals
were advised that they were terminated and were
trespassing. [Emphasis added.]
Bodziak testified at the hearing that the employees
were terminated for refusing to work.5
The judge recommended the dismissal of the com-
plaint, finding that the Respondent did not violate the
Act when it terminated the employees. The judge
found the discharges justified because, even though the
work stoppage at its inception was protected concerted
activity, the conduct lost its protection as a result of
the length of time that the employees remained in the
breakroom.6
In so doing the judge assumed that the discharges
were for trespassing. He did not discuss the possibility
that the Respondent actually discharged the employees
for refusing to work. However, the overwhelming evi-
dence establishes that the employees’ refusal to work
was the actual reason for the discharges, not the fact
that they stayed too long in the cafeteria. Bodziak ac-
knowledged that in his last plea to the employees to
return to work he stated, ‘‘This is my final request. If
you don’t go back to work, you will be terminated for
refusing to work. If you don’t go back to work or
don’t leave, I will call the police.’’7 This statement
clearly informed the employees that their only option,
if they did not want to lose their jobs, was to return
to work. It did not leave the employees the option of
leaving the premises and avoiding discharge. In addi-
tion, the document in the Respondent’s personnel
records confirms that the 22 employees were dis-
charged on February 20, for refusing to work.8 Further,
Bodziak at the hearing admitted that the employees
had been discharged for refusing to work on February
20. Thus, the Respondent consistently maintained in
the statements to its employees, in the documents in its
personnel file, and in the testimony presented at the
hearing that the discharges were for the employees’ re-
fusal to work.
The refusal to work that motivated Respondent’s de-
cision to terminate the employees was, as the judge
found, protected concerted activity. Therefore, we find
that the General Counsel has established a prima facie
case that the Respondent unlawfully discharged the
employees for engaging in protected concerted activity.
The Respondent, therefore, has the burden of establish-
ing that the discharges would have taken place even in
the absence of the protected concerted activity.9 The
Respondent has not offered any explanation for the
discharges other than that the employees were trespass-
ers. Because we have concluded that the employees
were discharged for refusing to work and not for being
trespassers, we find that the Respondent has failed to
meet its burden. Thus, we conclude that the Respond-
ent violated Section 8(a)(1) by discharging employees
for engaging in the protected concerted activity of re-
fusing to work and by thereafter refusing to reinstate
them.
CONCLUSION OF LAW
By discharging and refusing to reinstate 22 of its
employees because they engaged in the protected con-
certed activity of refusing to work, the Respondent has
violated Section 8(a)(1) of the National Labor Rela-
tions Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that
the Respondent unlawfully discharged and refused to
reinstate the 22 employees at issue here, we shall order
the Respondent to offer them immediate and full rein-
statement, without prejudice to their seniority and other
rights and privileges, and to make them whole for any
loss of earnings they may have suffered as a result of
the Respondent’s unfair labor practices, with interest,
in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Molon Motor and Coil Corp., Palatine, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(a) Discharging and refusing to reinstate employees
because they engaged in a protected, concerted refusal
to work.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Demetrio A. Alvarez, Gonzalo Martinez,
Joaquin Damian, Juana Hernandez, Josefina Vasquez,
Maria A. Morales, Maria Rebolledo, Graciela Jaimes,
Virginia Oviedo, Maria Agnes Skowronski, Arthur
Robert Skowronski, Juanita Pinto, Romeo Carbajal,
Adan Salgado-Montes, Tiburcio Carbajal, Eugenio
Delgado, Guillermo Vasquez, Saul F. Viveros, Maria
T. Bustos, Ofelia Solis, Maria Balderas, and Rosa
Santoyo immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(b) Remove from their files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at the Respondent’s Palatine, Illinois facility
copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Re-
gional Director for Region 13, after being signed by
the Respondent’s authorized representative, 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
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or refuse to reinstate you
because you engage in a protected, concerted refusal to
work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Demetrio A. Alvarez, Gonzalo Mar-
tinez, Joaquin Damian, Juana Hernandez, Josefina
Vasquez, Maria A. Morales, Maria Rebolledo, Graciela
Jaimes, Virginia Ovideo, Maria Agnes Skowronksi,
Arthur Robert Skowronski, Juanita Pinto, Romeo
Carbajal, Adan Salgado-Montes, Tiburico Carbajal,
Eugenio Delgado, Guillermo Vasquez, Saul F. Viveros,
Maria T. Bustos, Ofelia Solis, Maria Baldreas, and
Rosa Santoyo immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to their discharges and
that the discharges will not be used against them in
any way.
MOLON MOTOR AND COIL CORP.
Sandra Tyra and Emily Fall, Esqs., for the General Counsel.
Steven L. Gillman and Michael Paull, Esqs. (Fox & Grove),
of Chicago, Illinois, for the Respondent.
Stephen Rubin, Esq., of Chicago, Illinois, and Mr. Roy L.
Cortes, of Park Ridge, Illinois, for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. On Feb-
ruary 20, 1989, a group of employees of the Respondent,
141MOLON MOTOR & COIL CORP.
1 The case began on March 2, 1989, with the filing of an unfair labor prac-
tice charge by Local 1031. The complaint is dated April 10, 1989. The Gen-
eral Counsel has filed an unopposed motion to correct transcript which I grant.
2 The record does not permit me to determine which alternative was uttered.
Perhaps both were.
Molon Motor and Coil Corp. (Molon or the Company),
clocked in but refused to work, saying that they would not
work unless management promised to increase their wage.
Molon refused to make that promise. The employees re-
sponded by refusing to either go to work or leave the plant.
After about 5 hours of that stalemate, Molon’s management
told the employees that their employment at Molon was ter-
minated. The Company called the police, and two police offi-
cers escorted the employees off the premises.
Several of the employees involved subsequently told
Molon that they wanted to return to work. Molon said no.
The General Counsel contends that Molon, by firing the
employees and by refusing to reinstate them, violated Section
8(a)(1) of the National Labor Relations Act (the Act). Molon
admits that the Board has jurisdiction in the matter but de-
nies that the Company has violated the Act in any respect.
I heard the case in Chicago on October 17 and 18, 1989. The
General Counsel and Molon have filed briefs.1
A. The Events Leading to the Employees’ Refusal to
Work on February 20
1. The Employees’ refusal to work on
February 13, 1989
Molon manufactures electric motors in three plants, all in
the Chicago area. The only facility we are concerned with
here is the Company’s plant in Palatine, Illinois. Thirty-two
production employees work there on the first shift, which
begin at 6 a.m. and ends at 2:30 p.m.
On Monday, February 13, the employee clocked in as
usual. But then somewhere between 10 and 20 of the produc-
tion employees went to the employees’ break area and re-
fused to go to work. The plant manager, Don Stratton, asked
what was going on. The employees responded that they
weren’t going to work unless they got a pay increase. Strat-
ton told the employee that he didn’t have the authority to
grant any pay increase but that he would talk to Molon’s
senior management about it and give the employees an an-
swer by noon. Stratton asked the employees to return to
work in the meantime. They did, about 7 a.m.
During much of the rest of the day Stratton and his boss,
director of manufacturing Donald Bodziak, met with the
plant’s employees, sometimes with individual employees,
sometimes with small groups. The first language of many of
the plant’s employees is Spanish, and many of those employ-
ees speak and understand English poorly. So Stratton and
Bodziak kept a bilingual employee by their side to translate.
Management’s purpose in holding the meetings with the
employees was to determine whether the employees had con-
cerns other than their wage scale. It turned out that low pay
was their only complaint. Management also used the meet-
ings to tell the employees that within the week the Company
would provide more information about wages.
Molon paid all the employees their full days’ pay for Feb-
ruary 13, notwithstanding the refusal of some of the employ-
ees to work for about an hour. Molon’s work rules state that
‘‘any form of work stoppage’’ by an employee is cause for
disciplinary action. But Molon did not discipline the employ-
ees in any way for the work stoppage.
2. The union meeting on February 13
That evening about 15 of the Palatine plant employees met
with a representative of IBEW Local 1031 (the Charging
Party). Somehow at least some of the employees came away
from the meeting with a misunderstanding about their labor
law rights. If they left the plant for any reason during the
course of a controversy with management, they thought, they
would thereby be deemed to have ‘‘abandoned’’ their jobs
and, in the words of one employee witness, would be ‘‘laid
off without any right to go to unemployment’’ (that is, to re-
ceive unemployment compensation).
3. Molon’s February 17 rejection of any pay increase
On Friday, February 17, management met with those Pala-
tine plant employees who had demanded pay increases. Man-
agement read aloud (in both English and Spanish versions)
a letter signed by the Company’s executive vice president.
The letter contended that the Company was facing increased
competition and higher costs and concluded that because of
these factors, Molon could not afford to pay the employees
more than they were already getting. Management handed
copies of the letter to the employees.
B. The Events of February 20, 1989
The Palatine employees clocked in as usual on Monday,
February 20, about 6 a.m. But then 22 of the production em-
ployees went to the employee breakroom, and stayed there,
instead of working. At least some of those employees had
participated in the February 13 refusal to work. The employ-
ees made it clear that they would not work unless they got
a pay increase.
Over the course of the next 5 hours various members of
Molon’s management repeatedly tried to convince the em-
ployees to go to work. (The supervisors spoke in English.
The Company had a clerical employee translate manage-
ment’s communications into Spanish.) Management used lan-
guage on the order of ‘‘please return to work,’’ and ‘‘we
can’t promise you a pay increase because the Company is in
a crisis.’’ The Company’s controller came to the plant to
present to the employees a detailed analysis of Molon’s fi-
nancial difficulties. The employees remained adamant, stating
their position as ‘‘no increase, no work.’’
About 11:10 a.m. Bodziak (Molon’s director of manufac-
turing) told the employees to either go to work or leave the
building. The employees refused. Bodziak then said that if
they did not either go to work or leave the building he would
call the police. The employees said that they were going to
remain in the plant’s breakroom. Management, in its final
communications to the employees in the breakroom then said
(in English) either: (1) ‘‘go back to work or you’ll be termi-
nated; or (2) ‘‘if you don’t return to work or leave the prem-
ises we’ll consider you trespassers and we’ll terminate
you.’’2 The employees, who were under the impression that
if they left the building they would thereby be ‘‘abandoning’’
their jobs (perhaps because of the way management’s state-
ments were being translated, perhaps because of the employ-
ees’ own preconceptions), continued to refuse to leave the
breakroom.
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In many circumstances an employer violates the Act if it calls upon police
to force employees to cease their protected activity. E.g., Medina Super Duper,
286 NLRB 728, 729 (1987). But it appears that even if an in-plant refusal to
work is protected in the sense that the employer may not lawfully fire the em-
ployees for that activity, the employer may lawfully ask the police to remove
the employees from the premises. See Pepsi-Cola Bottling Co., 186 NLRB 477
(1970). (The General Counsel here does not claim that management’s demand
that the employees leave the premises, or management’s call to the police, vio-
lated the Act.)
At 11:30 a.m. Bodziak called the police. Two police offi-
cers arrived a few minutes later. They asked Bodziak if he
wanted to file criminal charges. Bodziak said that he did not.
The officers spoke to the employees, discussing the possibil-
ity of jail and the need for bail. At 11:45 the employees left
the building.
Throughout the 5 hours and 45 minutes that the employees
remained in the Palatine plant and refused to work, they re-
mained in the employee breakroom. That room adjoins the
production area, and undoubtedly the gathering in the
breakroom adversely affected the work of those employees
who did not join in the refusal to work. On the other hand
the employees in the breakroom were peaceful and some
work did get done on the production floor by nonparticipat-
ing employees.
February 21 and Thereafter
In the days following the employees’ refusal to work about
a half-dozen of the employees who participated in that re-
fusal called the Molon to ask if they could return to work.
Molon said that they could not, that they had been termi-
nated as employees of the Company.
C. Did the Company Violate the Act?
1. Did the employees engage in an intermittent strike?
‘‘Hit-and-run’’ intermittent strikes are not protected by the
Act. See Pacific Telephone Co., 107 NLRB 1547 (1954).
And here a number of the Palatine production employees re-
fused to work for an hour or so on February 13, worked the
rest of that week, then refused to work on February 20.
Nonetheless it is clear that the employees’ activity did not
constitute an intermittent strike. For one thing, on February
13 Stratton, on behalf of Molon, essentially asked the em-
ployees to return to work on an interim basis while Molon
determined how to respond to the employees’ demand for
higher wage. Secondly, there is no evidence even suggesting
that before the employees ceased work on February 13, or
during that work cessation, they agreed among themselves
that in order to increase Molon’s difficulties they would re-
turn to work for a few days and then cease work again.
Rather, the record indicates that the employees’ action on
February 20 was a spontaneous response to Molon’s state-
ment on February 17 that no pay increase would be forth-
coming.
2. Was the employees’ February 20 activity protected?
There are some subsidiary issues that seem to me to be
exceedingly complicated. For example, what counts—what
management said, in English, or what the employees were
told in the language that most understood (Spanish, by the
translator)? And if the translation was faulty, is that manage-
ment’s problem (for purposes of determining whether the
Company violated the Act), or the employees’?
But perhaps questions of that ilk don’t have to be an-
swered. The employees’ refusal to work was concerted activ-
ity over wages. And it is reasonably clear that management
had the right to call upon the police to force the employees
out of the plant.3
Thus the central issue seems to be this: When the employ-
ees refused to either work or leave the plant for more than
5 hours (and gave no indication that their position was going
to change any time soon), did Molon have the right to fire
the employees as trespassers? Or does the Act require an em-
ployer in those circumstances to consider the employees to
be strikers—so that while management could force the em-
ployees to leave the building, management could not lawfully
fire them.
There appear to be no Board cases that answer that precise
question.
The answer would be easy if the employees had begun
their stay in the breakroom after their shift ended, instead of
when the shift began. Then it would be clear that their activ-
ity was unprotected: Peck, Inc., 226 NLRB 1174 (1976).
Similarly it would be clear that management’s discharge of
the employees would have been a violation of Section 8(a)(1)
if: (1) Molon had waited only a half-hour or so after 6 a.m.
before taking that action; or (2) the employees’ purpose was,
for example, to force the Company to cease an unlawful re-
fusal to meet with the employees’ bargaining representative.
See NLRB v. American Mfg. Co., 106 F.d 61 (2d Cir. 1939),
modified on other grounds 309 U.S. 629 (1940); Golay &
Co., 156 NLRB 1252, 1262, enfd. 371 F.2d 259 (7th Cir.
1966); Cone Mills Corp., 169 NLRB 449 (1968), enf. denied
413 F.2d 445, 454 (4th Cir. 1969).
Here the circumstances cut both ways.
Several considerations point in Molon’s direction. First, no
one claims that the employees’ action stemmed from any un-
fair labor practice by Molon. Second, no one claims that the
Company refused to listen to the employees’ complaints.
Third, the object of the employees’ action was higher
wages—the classic basis for an outside-the-plant strike.
Fourth, for more than 5 hours the employees refused to ei-
ther go to work or leave the plant. And, finally, for much
of that time management’s only communications with the
employees were to urge them to return to work and to ex-
plain why the Company was unwilling to agree to higher
wages.
But there are points in the employees’ favor too. The em-
ployees were entirely peaceful. They remained in an appro-
priate part of the plant—the breakroom—where they inter-
fered least with the Company’s production. They did not
‘‘occupy’’ even the breakroom in the sense that they did not
try to keep others from using it. And unlike cases like Peck,
they entered the plant only when their shift was supposed to
begin and left it before their shift was supposed to end.
I am going to recommend that the complaint be dismissed.
My reason for that recommendation is this. In the kinds
of work places in which the Act applies, it has always been
generally understood, by both management and labor, that
where employees opt to apply economic pressure on an em-
ployer by withholding their services, the employees belong
outside the employer’s facility, not in it. See American Mfg.
Concern, 7 NLRB 753 (1938). But were the Board to con-
143MOLON MOTOR & COIL CORP.
clude that Molon violated the Act, that historical arrangement
might shift.
That’s because there were no special factors in the Molon
situation that impelled the employees to stay in the plant
rather than engage in the traditional form of strike—picketing
outside the plant. Thus a ruling that Molon violated the Act
would mean that, in most circumstances, the employees of
any employer that was subject to the Board’s jurisdiction
would have every reason to begin strikes by clocking in to
work and then going to the facility’s break area, cafeteria, or
the like and refuging to either work or leave the premises
until forced out. For one thing, that approach might increase
the employees’ leverage since it might often be more disrup-
tive of the employer’s efforts to maintain production than if
the employees stayed outside the employer’s premises. Sec-
ondly it would often be more comfortable for the employees.
(In this case, for example, the dispute occurred in Chicago
in February.) Thirdly, that approach would probably result in
more mistakes by employers regarding what the Act per-
mitted them to do and say, with consequent findings by the
Board that the employer violated the Act which, in turn,
might mean backpay awards or, in the very least, findings
that the strikes were unfair labor practice strikes.
Because I think that the Board should be exceedingly cau-
tious about encouraging a change in the historically agreed-
upon place for employees to station themselves when collec-
tively withholding their services, I conclude that Molon did
not violate Section 8(a)(1) of the Act when it fired the 22
employees who clocked in and, for more than 5 hours, re-
fused either to work or to leave Molon’s premises.
[Recommended Order for dismissal omitted from publica-
tion.]