Ontario Knife Co.

National Labor Relations Board - Board Decisions

Feb 21, 1980

247 N.L.R.B. 1288 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ontario Knife Company and Angel L. Cobado. Case
3-CA-8603
February 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 28, 1979, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Charging
Party Cobado was lawfully discharged for walking off
the job without permission. Although we agree that
Cobado was discharged for breaking Respondent's
rule regarding leaving work without permission, we
find that Cobado's walkout was the direct result of her
protected concerted activity and therefore was itself
protected activity.
Respondent employs two shifts of employees to
assemble various types of knives at its plant. Cobado
and coworker Swift, both night-shift (second-shift)
employees, had regularly discussed working on the
machete knife, a difficult and undesirable work
assignment. They believed that second-shift employees
were unfairly assigned to run machetes more often
than day-shift employees, and Cobado had regularly
complained to management about this. Cobado ac-
knowledged that the plant manager had been generally
accessible, and had made some changes to assist
employees working on machetes.
On June 22, 1978, Cobado and Swift complained to
the night-shift foreman, Peterson, that the second-shift
employees were being unfairly assigned the machete
work all the time, while the day crew was not. They
also told Peterson that the next time it was their turn
to do machetes they were going to refuse. Peterson
' The General Counsel has excepted to the inadvertent misspelling of the
Charging Party's name in the Decision. We note for the record that the
Charging Party's name is spelled "Cobado."
The General Counsel also recommended, as he has in various recent cases.
that interest on backpay be computed at 9 percent. We find no merit in this
contention. See Florida Sieel Corporation. 231 NLRB 651 (1977).
: Cobado testified that Peterson, in essence, told her that, if she did not like
247 NLRB No. 168
replied that the day shift made the schedule for the
night crew, and he and they were bound by it.
Peterson told Cobado and Swift that "if they did not
want to do their job they would have to go home and
[he] would hire somebody else to replace them."'
Cobado testified, without contradiction, that Peterson
was upset with both of them, but was looking at her
when he said, "If there's a thing on there [the
schedule] that says you have to kiss my ass, that is
what you are going to do." Cobado testified that by
this time she was upset and said, "I don't need this
garbage." She then walked off the job, punching out
and crying as she left. Peterson testified that, as
Cobado was leaving, he said, "You'd better have a
good reason for leaving." When Cobado called in to
work the next day, Personnel Manager Hall told her
not to report to work. Hall testified, without contra-
diction, that Cobado told him she walked off the job
because she was angry. Cobado claimed part of her
reason for leaving was because she was concerned
about her high blood pressure and her susceptibility to
strokes. On June 26, 1978, Hall called Cobado and
told her she was discharged for breaking Respondent's
rule concerning leaving the plant without permission.
The Administrative Law Judge found, and we
agree, that the machete grievance discussion was
protected concerted activity. The Administrative Law
Judge further found that, if Swift had walked out with
Cobado in protest of the above, the walkout also
would have been protected concerted activity. He
concluded, however, that Cobado's walkout was a
personal decision resulting from Peterson's remarks'
and was therefore unprotected. He found Cobado's
discharge for leaving the plant without permission was
not a violation of Section 8(a)(l) of the Act, and he
dismissed the complaint. We disagree.
In reaching his conclusion, the Administrative Law
Judge found that Cobado's walkout was occasioned by
Peterson's offensive remarks made just prior to the
abrupt conclusion of the machete grievance discus-
sion. Even assuming, arguendo, that Peterson's "off
color" remarks were the proximate cause of Cobado's
walkout, the statements must be considered in the
context of the entire conversation, which was clearly
protected concerted activity. Indeed, Peterson's state-
ments were not merely isolated "off color" remarks
but rather conveyed the message, with particular
emphasis, that Peterson was unwilling to consider
seriously the machete complaint. When this was made
clear to Cobado, she walked out in protest. It is well
the type of work she was doing, she should "get the hell out." that there was
always somebody else there willing to work, and that Respondent would find
somebody to do the job. The Administrative Law Judge credited Peterson's
testimony on this particular matter.
The Administrative Law Judge relied in part upon Cobado's statement in
a letter to the Regional Office wherein she wrote. "Sure I need that job but I
don't have to kiss someone's ass to hold on to it either."
1288
ONTARIO KNIFE COMPANY
settled that employees have the right to leave work in
support of a grievance pertaining to terms and
conditions of employment. Blue Star Knitting, Inc.,
216 NLRB 312, 316 (1975); N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9 (1962). When
this occurs, an employer may not lawfully discipline
an employee for breaking a company rule concerning
leaving work without permission; for to allow it would
abrogate the statutory right to withhold services in
support of a grievance. Furthermore, the fact that
Cobado left work alone does not prevent her walkout
from being protected concerted activity. The Board
has in the past found walkouts by single employees to
be protected concerted activity. Most recently, in
Steere Dairy, Inc., 237 NLRB 1350 (1978), we found a
single employee's walkout to protect a change in terms
and conditions of employment for all employees was
protected concerted activity despite the refusal of
other employees to join in. Similarly, in the present
case, the machete grievance was a group concern of
second-shift employees, and Cobado and Swift were
engaged in group action up to the point when Cobado
walked out alone. (We note that Cobado and Swift
told Peterson that the next time they were assigned to
do machetes they were going to refuse.) It follows, a
fortiori, that Cobado's individual protest was protected
because it involved a group concern-the work
assignment of all second-shift employees. Based on all
the foregoing, we find Cobado's walkout was protect-
ed concerted activity, and her discharge for leaving
work without permission violated Section 8(a)(1) of
the Act.' It follows, and we further find, that
Respondent's refusal to reinstate Cobado also violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Ontario Knife Company is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. By discharging and refusing to reinstate employee
Angel L. Cobado for engaging in protected concerted
activity, Respondent has violated Section 8(a)(1) of
the Act.
3. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
' In finding that Cobado was discharged for this unlawful reason, we agree
with the Administrative Law Judge that Respondent's other asserted reason
for the discharging. i.e., that Cobado was not a model employee, was merely
pretextual. and that Cohado was discharged because she walked off the job.
'See. generally, Iis Plumbing & Heating Co., 138 NLRB 716 (1962).
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ontario Knife Company, Franklinville, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging and refusing to reinstate employees
for engaging in protected concerted activity.
(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 which the
Board finds will effectuate the policies of the Act:
(a) Offer Angel L. Cobado immediate and full
reinstatement to her former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights
or privileges previously enjoyed.
(b) Make Angel L. Cobado whole for any loss of
pay or other benefits she may have suffered by reason
of the discrimination against her in the manner
established by the Board in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), together with interest
thereon as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).'
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, 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 its Franklinville, New York, place of
business copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
^ In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSI'ED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an
opportunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this
notice. We intend to abide by the following:
WE WILL NOT discharge or refuse to reinstate
employees for engaging in protected concerted
activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Angel L. Cobado immediate
and full reinstatement to her former position or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Angel L. Cobado whole for
any loss of earnings she may have suffered as a
result of the discrimination against her, plus
interest.
ONTARIO KNIFE COMPANY
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge: This
case was heard in Olean, New York, on February 14, 1979.
The charge was filed by Angel L. Cabado, an Individual
Charging Party, on July 19, 1978.' The complaint issued on
September 27, alleging Respondent violated Section 8(a)(1)
All dates are in 1978. unless otherwise stated.
:The complaint alleged the charge was filed and served on Respondent by
registered mail on or about July 19. Respondent's answer specifically recited
that no answer was made to this allegation. However, the formal papers in this
matter. received in evidence without objection by Respondent, include proof
of service of charge upon Respondent by registered mail. On the basis of the
above, as well as the pertinent provisions of the Board's Rules and
Regulations. Sec. 102.20 I find that the charge herein was filed and served on
Respondent on or about the aforesaid date.
' Respondent's unopposed motion to correct the transcript (dated March 7.
1979) is granted, and received in evidence as Resp. Eh 8. The General
of the Act. Respondent, by answer filed October 6, denied
the commission of any unfair labor practices.' The primary
issues as alleged in the complaint are whether Respondent
Company has, in violation of Section 8(a)(1), terminated on
or about June 22, and since June 26 refused to reinstate or
rehire, Angel L. Cabado because she engaged in protected
concerted activity for the purpose of collective bargaining or
mutual aid or protection.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Employer dated
March 26 and 29, 1979, respectively, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York corporation, is engaged in the
manufacture, sale, and distribution of cutlery and related
products at its plant in Franklinville, New York, where it
annually ships manufactured goods valued in excess of
$50,000 directly to customers located outside the State. The
Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. AI.IEGED UNFAIR LABOR PRACTICEs
A. Background
1. Respondent's manufacturing operations and structure
Respondent's plant, located in Franklinville, New York, is
a large two-floor single building facility at which Respon-
dent employs approximately 300 employees essentially in the
manufacture of various types of knives. Employer operates a
day shift and a night shift. Complaint alleges, answer admits,
and/or on the basis of the entire record herein I find that
Frank J. Warren is plant manager, Robert E. Hall is
personnel manager and contract administrator, and Rolla
"Bud" Peterson, Jr., is night foreman; and that all of the
foregoing are supervisors and agents of Respondent within
the meaning of Section 2(11) and (13) of the Act.
Warren has been plant manager for over 4 years. Warren
testified that at any given moment the Employer may be
making as many as 300 different types of knives in its
manufacturing process. (Cabado testified that Respondent
makes thousands of different kinds of knives.) Respondent
uses an order entry department for its production control.
As orders come in, they are dated for a delivery shipment in
3-8 weeks. Production control and scheduling is the overall
responsibility of Warren. Two production coordinators, who
Counsel has also filed a motion to amend the transcript (dated March 16.
1979) in certain particulars which is also unopposed except as to its ourth
particular. by an objection filed by Respondent (dated March 23. 179). As
neither the record, the General Counsel's offered support, in the face of
Respondent's objection thereto, nor my own recollection of the matter has
convinced me the record should be corrected in this particular as urged by the
General Counsel. I deny the motion thereon. In all other respects, the General
Counsel's motion is granted and is received in evidence as G.C Exh 6.
Respondent's objection to the aforesaid fourth particular is received in
evidence as Resp. Exh 9.
1290
ONTARIO KNIFE COMPANY
report directly to Warren, control production by priority
and shipping date. Resulting production schedules are
identified to the foremen. Night- (or second-) shift produc-
tion schedules are usually determined by day-shift foremen
in a production continuity sense.
The entire night shift is under the supervision of Foreman
Peterson, who is responsible for achievement of the produc-
tion scheduled for that evening. Peterson is assisted by
Leadman Fran Cornelius. Peterson has no authority to
change a production schedule, except for a required exercise
of judgement in the case of a machine breakdown or
depletion of parts. In that respect it is to be noted that
Respondent manufactures certain parts while other parts are
obtained from outside suppliers. I credit the testimony of
Warren (and Peterson) in the above particulars.
2. Prior difficulties in the machete production
Angel L. Cabado was hired in June 1976 as a riveter, at
which position she has worked for approximately 2 years.
Cabado initially requested, was assigned to, and during all
material times herein has worked on the second shift from
3:30 p.m. to midnight.' Cabado worked regularly in the
riveting department with two other employees, Ethel Briggs
and Judy Swift. As noted, the production of this department
as well as that of all other departments that were working
second shift were the direct supervisory responsibility of
Foreman Peterson. In assisting Peterson, Leadman Cornel-
ius, inter alia, was assigned the startup of production on the
second floor. The riveting department is located on the
second floor. Cabado's basic work function was to rivet
wood or plastic handles on knives. In this process different
machines are used, viz., an air press, an automatic machine,
and a kick press.
Cabado testified that continuing difficulties were encoun-
tered in the manufacturing process on the machete. Respon-
dent's machete product involves combining one of the
largest blades with a plastic handle. Cabado explained that
occasionally the blades were warped which somewhat
affected production, but mostly the difficulties that were
encountered in the manufacture of this product were
occasioned by the quality of the plastic handles, supplied by
an outside supplier, which frequently did not fit properly
and consequently both prevented production and created
waste.' The loss of time was significant as well to the affected
individual employee. Thus the employees were working on
piece rates and they were required to produce a certain
number of knives per hour to support a guaranteed base rate.
However, only production over an established standard for
the given knife type would qualify the employee for receipt
of any (additional) incentive pay. +b Cabado also described
the machete job as being one of the dirtiest jobs in the
' The record reveals that in April Cabado was offered employment on day
shift on several occasions by Day-Shift Foreman Bill Lindberg. but declined
on personal convenience consideration.
' The plastic handle parts frequently would not fit properly around the
blade handle and would not accommodate the four rivets required to press.
Thus Cabado described that three rivets could he regularly placed and set
efficiently, but the fourth rivet, when pressed with the air press machine,
commonly caused the plastic handle to crack and split, with resulting waste of
time and material The unacceptable knives would then have to be disasem-
bled in order that the blade might he reused.
' Machete basic production rate was apparently 9q per hour during the 8-
production process, explaining that in the last 6 months
machete blades were dipped in oil (apparently to retard
rust). As a result, handling the machete blades was made the
more difficult because they were slippery. Aside from
efficiency and piece-rate considerations, Cabado relates that
employees in the riveting department frequently soil, their
clothes as Respondent did not supply them with aprons.
Peterson acknowledged that machete riveting was a more
difficult job. Warren viewed the machete as a unique
product item but candidly confirmed that viewed from
vanous standpoints, the machete was an undesirable job.
Warren acknowledged that Employer was having quality
difficulties on this item; that the handles for the machete
employer had purchased from an outside supplier had been
of very poor quality and that, as a result, in May employer
had a rigid schedule on the machetes as it was by then
behind on delivery of its orders for the machetes. Warren
also acknowledged that if, an incentive worker had a
problem with either a machine or supply, the employee
tended to lose money. Somewhat less frankly, after initially
testifying that employees under standard conditions can
make just as much money on the machete production as on a
smaller knife production (in the light of a prior contrary
statement), Warren retracted the latter statement and then
further acknowledge that the machete did not pay incentive
employees as well as other jobs; thus, even under standard
conditions, I am wholly convinced that production of the
machete was an undesirable assignment for the rivet depart-
ment employees.
B. Cabados Prior Complaints to Respondent;
Respondent's Effort To Improve Conditions
Cabado testified generally that she and employee Swift
had discussed these working conditions associated with
machete production for a long time, just about every week;
and that it was a concern of theirs why they were the only
ones doing this work all the time. (Swift did not testify.)
Cabado otherwise related that she had reported the prob-
lems with the machete production to Leadman Cornelius, to
Foreman Peterson, to Plant Manager Warren, and to
whomever would listen to her. In that regard, on cross-
examination Cabado acknowledgled that Warren had been
generally accessible to her in this period for registering such
complaints (as well as complaints on other matters); and
Cabado also acknowledged freely that it was Warren who
had arranged that employees, when required to work with
defective parts, could be credited with 100 percent, at least
thus qualifying the employee as adequately producing for
base or normal day rate.' On cross-examination Cabado also
confirmed that riveting employees had been placed on
rotation assignment to machete production, a procedure
hour shift. The Company audits the work performances of its employees.
Production beyond this required standard results in incentive pay. As used
herein, being paid 100 percent refers to an employee receiving credit for a
normal day's pay without having produced the required number of knives per
standard, but receiving .to incentive pay.
Peterson confirmed that 100 percent was awarded to employees if they
were supplied bad parts: adding the refinement that alternatively the
employees were sometimes given sorting time. that is time (at base rate) to
initially sort out usable handles (or blades) to accumulate a supply of gazd
parts to work with: and then employees would be allowed to go on their
incentive work rate.
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was deemed fair by the second-shift employees. The
essence of the present employee complaint was thus admit-
ted by Cabado to be that second shift was being unfairly
regularly assigned to work on the machetes while the day
crew was not being assigned to do this undesirable work.
It was Cabado's recollection at hearing that day-shift
employees had not worked on machetes in May or June,
though Cabado acknowledged that she had not kept a
written account thereon. In this matter Cabado was shown
by therecord evidence to be essentially in error, at least as far
as the month of May is concerned. Thus the record reveals
that machete production during the month of May was
comparatively evenly split between day- and night-shift
assignment. Employer presented evidence, which I credit,
that a first-shift operator had worked on machetes on 6 out
of the 10 days on which machetes were produced in the
month of May, while a second-shift operator had worked on
machete production on 8 of those 10 days. On the other
hand it is properly to be observed that of the last 6 days on
which machetes were produced (May 25 and June 19, 20, 21,
and 22), a first-shift operator worked on machete production
on only one such day (June 19), while a second-shift
operator worked each of such days. It is thus especially
notable that a first-shift operator did not work machetes on
June 20 when Cabado did, not on June 21 when Swift did,
nor on June 22 when Briggs did. On a rotation basis (on the
second shift) Cabado would be next scheduled for machete
production. It is also noted in passing that Foreman
Peterson had been absent from the plant in May because of a
back injury. In the interim Warren had certain discussions
with Cabado about the matter of the machete production.
Thus Warren relates that he had a discussion with Cabado
some time in May in which she complained about the
frequency of the running of machetes. Warren, as noted,
acknowledged that at that time they did have a rigid
schedule on machetes because they were behind on delivery
dates. Warren observed that although day shift ran machetes
quite often, they did not run the machetes quite as often as
night crew did. However Warren testified that his investiga-
tion into the matter convinced him at that time that there
was no deliberate unfairness in the machete work schedules
between day and night shift.9 Warren also testified generally
that invariably when he made his rounds Cabado had
something to say to him; that a common complaint of hers
was on the machete production; that it was only Cabado on
second shift who had so complained to him; and that he was
always glad to listen to her; and Warren denied that he had
ever instructed any foremen to retaliate against Cabado
because she had registered these complaints.
* Cabado relates that her information was based on an observance of a
calender near the air press on which day crew would write down their
machete production when they worked on machetes; from personal discus-
sions with the day crew; and from observances that no finished product was
left out by day crew. As we shall see, machete production was not an everyday
production. Thus the record reveals that machetes were produced on
apparently only half the working days in May and on only 4 days during the
month of June up to June 22.
' Warren explained that the plastic handle was of very poor quality and the
Employer never knew when these supplies would arrive. Additionally,
although the machete blade itself was made in-plant, there was some
subcontract work (coating) done on the blades which was done away from the
plant. Thus at times Employer's production of machetes would be delayed
Warren testified that he had a second discussion with
Cabado in early June. Warren relates that apparently
Cabado had been told that her productivity in some respect
was below standard (presumably by Foreman Peterson).'" In
any event, Warren testified that he sympathized with
Cabado at the time, recognizing that the Employer did have
some quality problems in that area. However, Warren
testified that, seeing that the day-shift employees were
working under the same conditions as the night shift, he had
suggested to Cabado at that time that she put a little more
effort into her productivity.
The record also reveals that on June 9 Cabado received an
employee warning notice for lateness and absence from
Foreman Peterson, of which Warren was aware. The
background and significance of such warning is discussed
infra. Suffice it to presently note that issuance of such
warning is not an alleged or contended unfair labor practice.
C. The Termination of Angel L. Cabado
From the time she was first employed, Cabado had been
instructed to follow the procedure that upon coming to work
she would look at day Foreman Lindberg's desk where she
would find the production note or schedule which would
direct her as to the order, knife, and job which she was to
perform that evening." It will be recalled that on June 20
(Tuesday) Cabado had worked the machetes; that on June
21 Swift was assigned to do so; and that on neither day had
first shift worked the machetes. The record reveals that on
June 21 Cabado asked Leadman Cornelius why the second
shift was doing machetes all the time and "why couldn't the
day crew get off their fannies and do them once in a while."'
As noted, on June 22 (Thurdsay), second-shift employee
Briggs was assigned to work the machetes. Again day shift
had not worked them. On rotation Cabado would be next
scheduled on second shift to do machetes. Cabado testified
that she was provoked by the thought that one of them was
again scheduled on machetes and day crew had not worked
them. Cabado testified that she, Swift, and Briggs were in
the riveting room on June 22 and that she and Swift were
complaining about the machetes being assignied exclusively
to second shift when Leadman Cornelius came through their
departments. Cabado relates that they inquired of Cornelius
what he had found out in the office pertaining to their
continued assignment to the machetes. After this conversa-
tion Cabado and Swift went back to work. Leadman
Cornelius did not testify. However, Foreman Peterson,
called as a witness by the General Counsel, confirmed that
Cornelius at that time had reported to him that Cabado and
awaiting delivery of blades or handles, or apparently even on occasion delivery
of special rivets used in the binding process. Warren testified that the above
materials had arrived late in the afternoon; and night shift was then
(reasonably) obligated to start the work to get the delayed production out.
"' Although Peterson had not testified as to that matter, neight did Cabado
subsequently deny same. The last day prior thereto that Cabado worked
machetes would have been May 25.
" Peterson confirmed that it was the day-shift foreman who made (even)
the rotating assignment for second shift on machetes.
'' Although somewhat belatedly, Respondent objected to responses of
Cornelius as being hearsay, which objections were thereupon sustained and
the witness not allowed to testify as to the nonsupervisory employee's
responses.
1292
ONTARIO KNIFE COMPANY
Swift were upstairs "bitching" about the machines and about
doing the machetes.
Cabado testified that Peterson came storming upstairs and
brought employees Swift and Cabado into another (unused)
rivet room. According to Cabado, Peterson first asked Swift
what the problem was; and Swift replied that Cornelius was
supposed to find out from someone in the office about why
they were doing machetes; and Swift wanted to know why,
when they came in that day, they were again doing the
machetes and the day crew had again not done them. The
record reveals that at some point in the discussion (I
conclude probably at this point), Peterson told both employ-
ees that Cornelius had no reason to go to the front office;
that Cornelius was not the boss, Peterson was; that Peterson
made all the decisions; and that it was his place to go to the
front office. Peterson confirmed that he told the employees
that he was in charge of the second shift. I credit Cabado as
to the above particulars.
Cabado also testified that Peterson first asked Swift
whether she was on machetes, and then asked Cabado the
same question. After both employees responded that they
were not assigned to the machetes that evening, Peterson
told them that he did not know what they were talking
(complaining) about; and the employees then told Peterson
that the scheduling was not fair. Peterson's version was that,
after he asked the employees what the problem was, the
employees answered themachines, adding it was not so much
the machines as it was the machetes: they did not like to do
machetes as they were oily and greasy. Nevertheless,
Peterson did not deny that the complaint of these employees
was extended to cover a complaint that they considered it
unfair that second-shift employees were being regularly
scheduled on the machete job while day crew were not. On
the other hand, it is Peterson who significantly testified that
during this conversation the employees also stated to him
that the next time it was their turn to do machetes they were
going to refuse to do them. Cabado in turn did not
subsequently deny this statement. (As both statements are
plausible, undenied, and consistent with other evidence" I
am persuaded to credit a composite of the above testimony
of Cabado and Peterson.)
According to Cabado, Peterson told them that a note was
left on Bill Lindberg's desk every day to tell the night shift
what they were to do, the type of knife, whatever. Peterson
then told the employees that "if it says on there that we're to
sweep the floors, or whatever, that is our job." Cabado also
testified that Peterson, in essence, told Cabado that if she did
not like the type of work she was doing, to get the hell out;
that there was always somebody else there willing to work;
that other people needed jobs; and that they would find
somebody to do the job. Finally, Cabado relates (without
contradiction on this record) that Peterson was upset with
both of them but was looking at her when he said: "If there
is a thing on there that says you have to kiss my ass, that is
what you are going to do." Cabado relates that by this time
she was upset and said, "I don't need this garbage." Cabado
' Peterson also confirmed generally that both employees had registered the
complaint about machete assignment and production; that it was one they had
registered before: and Warren essentially confirmed receipt of such report
later from Peterson, discussed infra.
" Peterson also related that Cabado had earlier become abusive and told
him that she could do the job better than he could do it. Peterson's testimony
testified that she then walked to her machine, shut it down,
packed her belongings, and walked off the job, punching out
and crying as she left. Cabado would at least partially
explain her abrupt departure as being out of apprehension
over her condition, which she testified was that she had high
blood pressure, a nasty temper, and had been warned of
susceptibility to stroke. Respondent established that in a
prior statement in a letter (dated July 2) to the Board's
Regional Office, Cabado had said: "Sure I need that job, but
I don't need to kiss someone's ass to hold on to it either."
The General Counsel established that in the same letter
Cabado had more specifically recorded as well: "He stated
only to Judy and myself that whatever the day foreman left
for us to do, we are to do. And if that means doing 1-18
everyday of the week, we will do them or get the hell out of
the plant, as there are plenty of people who are willing to
work if we ain't." Cabado testified that she said nothing
more to anyone with the Company that day.
Peterson confirmed that he told the employees that day
shift left instructions on what he was to run and that they
had to run by that schedule. Peterson's initial recollection
was that he had told the employees that if they did not want
to do the machetes, they could go home and he would hire
somebody else to do it. However, shown his prior statement
given on this matter, Peterson then acknowledged that he
had told Cabado and Swift that if they did not want to do
their job, they would have to go home and he would hire
somebody to replace them, that Cabado said she was going
home; and that Peterson said, "You better have a good
reason for leaving."'
Peterson's discussion with employees Cabado and Swift
took place within the first hour of work, prior to 4:30 p.m.
After the conversation was over, Peterson and Cornelius
proceeded to the front office to report the incident to
Warren. On finding Warren not there, Peterson relates that
Cornelius then went back to his duties while Peterson
proceeded to look for Hall. Peterson caught Hall in the
hallway on the first floor about 20 feet from the entrance and
he then reported the incident to Hall. Peterson relates that as
he was explaining the matter to Hall he observed Cabado
come down and punch out. Peterson and Hall also confirm
that they did not engage Cabado in conversation thereafter
that day. Peterson testified generally that it was some time
after June 22 that he told Hall that he did not want Cabado
back on his shift because she had walked off the job. The
General Counsel established through Peterson that he had
written two notes to Hall on this incident, the first on June
22 and the second on June 24. In neither note did Peterson
expressly state the position that he did not want Cabado
back because she had walked off the job. Peterson relates
that was the purpose of the report and that he subsequently
discussed the incident with Warren.
Robert E. Hall has been personnel manager and contract
administrator for 8 years. Hall's version of the conversation
he had with Peterson on that evening was only that Peterson
told him that he had had words with Cabado concerning the
in this area was not convincing; and he was not corroborated. Cabado did not
recall making this statement. The remark does not appear consistent with the
remainder of the conversation. which renders it the less plausible. I do not
credit Peterson that the statement was made by Cabado as I do not believe
that Cabado said it in the conversation.
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type of work and that Peterson thought he had taken care of
it. However, Hall confirmed that about this time (which he
placed at between 4:30 and 5 p.m.), he saw Cabado punch
out.
On the following day, June 23 (Friday), Cabado called
Hall. Cabado relates that she asked Hall if he had heard
what had happened, or that she had walked off the job.
Cabado thought Hall replied no. In any event Cabado then
proceeded to tell Hall what had happened. Cabado asked if
she was to come to work that day; and Hall replied no, that
he would have to get Peterson's side of the story, and speak
to Warren. On cross-examination Cabado admitted that she
told Hall during this conversation that she was a damned
fool for walking off the job.
Hall's version is that he received the call from Cabado
about 9-10 a.m. Hall confirms that Cabado inquired if she
still had her job; and that he replied that he did not know, as
she had walked off. Hall testified without contradiction that
he asked Cabado in this conversation why she had walked
off the job and that she had replied that she was angry' and
she would have had to start swinging or doing something.
General Counsel did establish on cross-examining Hall that
Cabado had said it was her nerves causing this. Hall also
testified, I find credibly so, that Cabado offered to get a
doctor's slip, asking if that would do any good. Hall replied
that was not the issue and he thought it would be a waste of
money." Hall told Cabado that he would have to discuss it
with Warren when he was available that she should not
report to work that afternoon and that he would get back to
her. The General Counsel also established on cross-examina-
tion that Cabado told him that she thought the second shift
was being assigned work that the first shift did not care to
do.
Cabado testified that she was next contacted on the
following Monday morning (June 26) by Hall who at that
time told her that he was sorry, but her services were
terminated. Hall testified he told Cabado that she was
terminated for walking off the job. On the same day Hall
made out an "Employee Change of Status Request" which
provided:
REMARKS: Walked off job after disagreement with
supervisor 6/22/78
Initiator: R. E. Hall
"The actual words used were in descriptive street language which, in my
view, adds nothing to the decision.
'" Although Cabado has denied offering to get a doctor's certificate. in view
of Cabado's earlier acknowledged condition and even present advancement of
same as an operative factor in her departure from the plant that evening. I
conclude Hall's testimony on that matter is the more likely and reliable, and I
thus credit Hall on the matter.
" Warren related that the past 60-90 days is considered very important in
an attendance review. Warren's instructions to personnel generally were to
keep track of attendance; and that anyone missing 2-3 days in a month was to
be earmarked and reviewed. Warren related that if absences continue for 2
months the employee is given a written warning and disciplinary action and
ultimately terminated. Warren testified that seven or eight employees had
been terminated for absences in the last 2 years.
" In support of same, Respondent presented quarterly print-outs which
inter ala show regular hours worked. While Cabado's record in the second
quarter would appear to support the issuance of the last warning under the
above disciplinary formula asserted by Warren, I must also note that Cabado's
record in the first calendar quarter (which if anything was worse than her
The record reveals clearly that no employee had been hired
for Cabado's job at time of her termination.
In the interim on Friday in the late morning, Hall spoke
to Warren. Hall reviewed the punchout but could not recall
whether at that time he had related to Warren the details of
what Peterson had told him the night before. He recalled
that Warren asked for Cabado's attendance record, and that
Warren stated he wanted to review the matter with Peterson
when the latter came on duty. Hall was to come together
with Warren again later that day.
Warren testified on Friday morning there was a note on
his desk from Peterson advising him that Cabado had
walked off the job without permission and that Bob Hall had
the details. Warren contacted Hall, discussed the incident,
and then asked for Cabado's file and her attendance record. ' 7
Warren examined two warning slips given Cabado for
absences, one on July 20, 1977, and one recently on June 9,
of which he was earlier personally aware. The first "Employ-
ee Warning Notice," dated July 20, 1977, recited that
Cabado had had too many unexcused absences, for which
she was then given 2 days off as discipline. On June 9,
Cabado had received another warning for lateness and
absence, which provided under remarks: "If problem still
continue employee will be given time off or terminated." The
warning was signed by Foreman Peterson and also by
Warren. '
Warren testified that on Friday evening (June 23), he
spoke directly with Peterson about the matter. According to
Warren, Peterson explained to him that Cabado had
complained again about running the machetes. Warren
relates he inquired whether Cabado was running the
machetes at the time and Peterson told him that she was not.
When Warren then asked Peterson what the complaint was,
Peterson told Warren, "Well, she complained that the night
shift, apparently, has been running more than their share of
the machete job." According to Warren, Peterson also
reported that there had been a discussion about it, and that
Cabado got mad and walked out without giving notice or
receiving permission to leave. Warren questioned further
and received assurance that Cabado had not said she was ill,
and that she had not asked for permission but just walked
off.' As noted (in contrast) Peterson's testimony of his
report to Warren was summarized that he reported the
events of the night before involving Cabado, including her
walking off the job. Warren however did testify that
second quarter) does not support a consistent application of the Employer's
absence-control formula. No warning was issued in that period, though a base
for such under the rule was the more readily apparent. However, Hall did
testify without contradiction that 40 hours per week was the minimal
workweek, which on record evidence Cabado much more often than not did
not maintain. Hall also would explain that the second warning was properly
prepared by Peterson but could not be given out during Hall's absence from
the plant without Warren's approval, thus accounting for his signature. The
record reveals that Cabado had been again absent a day and a half on June 7
and 8, respectively, immediately before the warning notice of June 9 was
issued. As noted. the warning is not alleged to have been discriminatory. The
record also reveals that even thereafter. about a week before her discharge.
Warren had authorized a personal loan for Cabado.
"' Respondent's posted "Employee Rules and Regulations" provided, inter
alia:
2. ABSENCE FROM WORK
a. Each employee is expected to be on the job regularly and on time,
except in case of illness, emergency, or permission previously obtained.
1294
ONTARIO KNIFE COMPANY
Peterson had reported he told the employees to follow the
schedule, and if they were scheduled to run the machetes,
they would have to run the machetes, but that Peterson had
not said anything about leaving the plant or looking for
work elsewhere. Warren did not testify at all as to his
awareness of other crude language used by Peterson in
directing Cabado to follow instructions. Warren testified
that he noticed and relied on Cabado's past record, which
included instances of early departure. However Warren
otherwise rather clearly has illumined that Cabado was
terminated because, after reviewing the circumstances re-
ported to him, he concluded there was no real reason for her
to have walked off the job.
D. Contentions
It is the General Counsel's contention that employees
Cabado and Swift were engaged in protected concerted
activity on the afternoon of June 22 at the start of their shift
when they once again discussed amongst themselves and
then registered with Foreman Peterson their complaint of
the (contended) unfair scheduling of second shift rivet
department employees on the machete production. In that
respect the General Counsel argues that Peterson's aware-
ness of this concerted activity is imputable to Warren; and
that in any event Warren indisputably has acknowledged
being informed by Peterson that the complaint raised with
Peterson was that the night shift was running more than
their share of the machete job, and Warren was aware as
well that Peterson had taken both Cabado and Swift aside to
discuss the complaint with them prior to Cabado's walkout.
(I have so found.) Thus it is the General Counsel's
contention that when Warren subsequently fired Cabado it
was with full awareness that Cabado had been actively
engaged in the above concerted activity and that it led to the
walkout.
At the hearing the General Counsel initially contended
that Cabado was constructively discharged. The General
Counsel in brief later contends that despite the evidence
relating to Cabado's absenteeism the record is clear that
Cabado was discharged because of the events of June 22. The
General Counsel would rely on Peterson's admitted state-
ment that if the employees did not want to do the machetes,
they would have to go home and he would hire someone else
to do them, and the effect of the undenied crude remark that
followed. It is the General Counsel's contention that there is
no reason not to credit Cabado as well that Peterson told her
that if she did not like the type of work she was doing, to get
the hell out. (This remark also was not alleged as an unfair
labor practice.) It is the General Counsel's further conten-
tion that Cabado's subsequent departure from the plant that
evening was the result of Peterson's abusive remarks and is
consequently properly to be viewed as being but an extension
of the earlier protection concerted activity; and General
Counsel argues the concerted nature of Cabado's action in
leaving the plant was thus not changed by virtue of the fact
that no other employee walked out with Cabado.
Respondent contra-argues that Cabado's actions are not
cognizable as legitimate grievance activity undertaken for
mutual aid or protection, and that the record will not
support inference of improper motive on the part of
Respondent to stifle complaints by Cabado. Rather Respon-
dent contends it retains the basic right to schedule and
assign work as its business requirements dictate. Respondent
contends otherwise that Cabado clearly was not a model
employee when it came to absenteeism and tardiness; that
rather, though Cabado was recently warned on June 9 that
she faced termination over such (continued) deficiencies, she
then proceeded on June 22 to walk off the job for personal
reasons, without permission and contrary to a known and
posted company rule, for which conduct she was subse-
quently lawfully discharged.
E. Analysis. Additional Findings, and Conclusions
It is Respondent's initial contention that, given Respon-
dent's earlier varied efforts to respond fairly and effectively
to Cabado's ongoing complaints concerning the machete
production problems as best it could, and given what it calls
a lack of real remaining factual basis for such continued
complaints, Cabado's actions are not cognizable as legiti-
mate activity undertaken for employees' mutual aid or
protection. However, I find this and all similar contentions
essentially directed at the merits of the complaint or wisdom
in pursuing the complaint about machete production are
wholly without merit. The ultimate fact is clear enough, and
I find, that employees Cabado and Swift, in registering their
complaint with management on June 22 over second-shift
employees' recent (seeming) exclusive assignments to the less
favorable machete work over the past 3 days, were clearly
involved in a lawful protest over their working conditions
and incentive wage opportunities. In that regard, Section 7
of the Act provides (in relevant part): "Employees shall have
the right . . . to engage in . . . concerted activities for the
purpose of collective bargaining or other mutual aid or
protection."
It is of no material moment to lawful protest whether the
nature of a grievance of employees is legitimate of frivolous,
or whether the protest thereon is wise or unwise. It is
sufficient to invoke the protection of Section 7 of the Act
that the grievance is job related and that the protest sparked
by the grievance was the concerned action of two or more
employees. Here there clearly was qualifying concerted
activity, at least initially. Thus in concertedly discussing and
pursuing with their employer their desire for future distribu-
tion of assignments of this less favorable work in a manner
deemed more equitable by them, viz, equally amongst first-
as well as second-operators, employees Cabado and Swift
were unquestionably acting in concert with purpose for
mutual aid or protection of all second-shift employees on a
matter directly affecting both their wages and their working
conditions. To be sure the employer had earlier recognized
certain inequities of their situation in machete production
and responded with procedures of 100 percent credit, sorting
time, and rotation; and Warren had been routinely accessible
to employees for continued consideration of their grievances.
It can hardly be questioned that Employer acts properly in
scheduling and assigning work production to meet its
required delivery dates. However, it is no answer to the Act's
requirements of an employer vis-a-vis employees' lawful
protest thereon, Barkus Bakery, Inc., 214 NLRB 478 (1974).
Moreover, the wisdom of employees' action and the merit of
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their grievance have long been established not to be the
determinative factors of whether their action was in nature a
protected concerted activity, Spinoza, Inc., 199 NLRB 525
(1972); Mushroom Transportation Co, Inc., 142 NLRB 1150,
1158 (1963), reversed on other grounds 330 F.2d 683 (3d
Cir. 1964). ° Thus Respondent's arguments that there was no
factual base for Cabado's complaint, or that her complaint
lacked immediacy as she was not assigned to the work that
evening, are irrelevant; as are all other arguments based on
Cabado's awareness, indeed prior use of other mechanisms
readily available for employees to transmit complaints to
management short of walking out; and specifically to the oft-
used one of talking directly to Plant Manager Warren.
Respondent has also urged as a consideration that Cabado
was not a model employee, relying on her prior record of
multiple incidents of absences and tardiness, noting two
prior warning notices issued for such, and particularly the
second one which issued on June 9 in which Cabado was
specifically warned that if absence or lateness continued that
Cabado would be "given time off or terminated." The short
answer to this contention must be that it begs the question.
This is so since Cabado was not shown to be absent or
significantly tardy on this record thereafter except for her
departure from work on June 22, which absence grew out of
the conversation Cabado and Swift had with Foreman
Peterson and resulted from certain remarks made by
Peterson, and which is the contended protected concerted
activity. For in that connection it must be observed that the
cases are legion which show that the existence of a justifiable
ground for discharge will not prevent such discharge from
being an unfair labor practice if it is partially motivated by
the employee's protected activity. A business reason cannot
be used as a pretext for a discriminatory firing, N.L.R.B. v.
Ayer Lar Sanitarium, 436 F.2d 45 (9th Cir. 1970); nor,
irrespective of motive, may an employee be discharged for
engaging in protected concerted activities, Burnup & Sims,
Inc., 379 U.S. 21, 23 (1964).
This bring us to consideration of what in my view must be
eventually regarded as the crucial and controlling consider-
ation of this case; viz., the base question of whether Cabado's
individual walkout was itself a protected concerted activity.
It is established beyond peradventure that a concerted
walkout of employees to protest job conditions is activity
protected by the Act, N.L.R.B. v. Washington Aluminum
Co., 370 U.S. 9 (1962); E. A. Holcombe, etc., d/b/a
Holcombe Armature, 325 F.2d 508 (5th Cir. 1963). The
lesser statement by employees of willingness or intent to
withhold services to protest conditions of employment has
been itself held to be presumptively protected concerted
activity, cf. First Data Resources, Inc., 241 NLRB 713
(1979). There was no evidence that Cabado was formally
authorized to speak for the other two employees in rivet
department. It would appear there was no need. Swift was
there and jointly spoke with Cabado to the grievance.
Moreover, the matter was an issue of clearly discernible
importance to all of the second-shift employees and Cabado
clearly spoke for the benefit of the entire group, cf. Milford
" In the latter Trial Examiner Samuel M. Singer specifically noted:
For, the right of employees to press complaints does not depend on either
the employer's or the Board's appraisal of the merit of the employee's
complaint. The "wisdom or unwisdom of the men, their justification or
Manor, Inc., 233 NLRB 1283 (1977). There would be no
question of a violation of 8(a) (1) had both employees
Cabado and Swift walked out in protest of the grievance and
subsequently been fired therefor, The C. J. Krehbiel Compa-
ny, 227 NLRB 383 (1976). The fact is, however, that only
Cabado walked off the job that evening; and that is the rub.
The General Counsel contends that Cabado's departure,
being directly traceable to certain remarks by Foreman
Peterson, should nonetheless be viewed as an extension of
the earlier protected concerted activity. General Counsel
would rely on South Central Timber Development, Inc., 230
NLRB 468, 470 (1977), and Montgomery Hospital, 233
NLRB 752 1977). However in South Central Timber
Development it is clear that the employee initially leaving the
job had both contemporaneously urged others to leave with
him and was in fact joined by others shortly thereafter; both
circumstances are clearly not present in the instant case. The
Montgomery Hospital case, though involving a finding of
unlawful discharge of a nonideal employee for engaging in
protected concerted activity, did not involve the circum-
stance of an individual departure from the job in protest, and
thus is not authority for such contention.
I have no difficulty in determining on this record that
there is a clear warrant for the conclusion that Cabado was
discharged essentially because she walked off the job after a
discourse disagreement with her supervisor. Indeed the
warrant for such conclusion is convincingly observed in
Cabado's very change of status request: "walked off job after
disagreement with supervisor"; and equally revealing is
Warren's frank and candid basic assessment that Cabado
was subsequently discharged because she had left the plant
though she had no real reason to walk off the job. The
circumstance of a background of prior absences may have
enforced that decision, but on this record, it did not
operatively change that fact, Montgomery Hospital, supra at
755. I am equally convinced that (apart from the Employer's
reaction to Cabado leaving the plant) there no background
of animus to Cabado's earlier grievances is convincingly
evidenced in this record. Clearly Cabado had frequently
discussed her grievances with Warren, but did so amicably.
Although Cabado had recently received a firm warning for
her absences and tardiness, such is not alleged to have been
discriminatory; it is itself supported by her record; and it did
not prevent Warren's authorizing the benefit of a personal
loan to her. There is no warrant to discredit Warren's
testimony that he had not directed retaliation by any
foreman because of Cabado's registered complaints. Then
too, it must be recognized that it was Peterson who was
responsible for seeing to it that all of night shift met its
production schedule. In contrast, Peterson had been absent
for nearly the entire month of May, during which Respon-
dent's machete production schedule was rigid and Cabado
had registered complaints most effectively. Thus, whether
the General Counsel intends continuation of the initially
claimed constructive discharge or not, in my view this is not
a constructive discharge case, as no prior discriminatory
suspension, warning, or reprimand was associated with
lack of it" (N.L.R.B. v. Mackay Radio and Telegraph Co.. 304 U.S. 333.
334), is irrelevant to the question of whether employees are engaging in
protected concerted activity, N.LR.B. v. Washington Aluminum Co.. 370
U.S. 9, 16; Cusano d/b/a American Shuffleboard Co. v. N.L.R.B.. 190
F.2d 898, 902 (C.A. 3).
1296
ONTARIO KNIFE COMPANY
Cabado's departure. Cf. Tierney Electrical Mfg. Co.. 192
NLRB 229 (1971). See and compare cases cited id. at 235.
In so concluding I have also given careful attention to the
remarks attributed to Peterson by Cabado and General
Counsel's arguments based thereon. Thus the General
Counsel has essentially argued that abusive remarks were
heaped on Cabado which, when combined with Peterson's
instruction to employees to "get the hell out" if they did not
want to work on machetes, created a condition which no
selfrespecting employee should have to endure just to hold
on to a job. These matters were fully litigated. However, I do
not agree with the General Counsel's assessment, for
differing reasons.
As to the abusive remark, which I have credited was said
by Peterson as Cabado has testified without contradiction, it
was, in my view, both a crude and regrettable one. However
the Board on many occasions has acknowledged its aware-
ness of the reality that the conversation of the parlor room is
not the conversational standard one may reasonably expect
(or exact) of the plant or factory. Consequently the Board
will not hold an employee's protected concerted activity or
union activity status forfeited should the employee (or
steward) in the plant or factory lapse into street language in
emphasis or while relating and discussing a complaint, or
processing a grievance. It seems to me that the premise that
a front-line foreman is not to be held to a different standard
of polite language in the day-to-day addressing of grievances
in the plant is but the other side of the same coin. Thus, in
my view, neither an unlawful motive or effect may automati-
cally be attributable to a given front-line foreman's apparent
"off-color," but happenstance similar response even if it
occurs in the discussion of a raised grievance with an
employee, so long as an actual interference with, restraint, or
coercion of the employee's engagement in such activity is not
shown to be present or otherwise reasonably to be inferred.
Assuming the crude remark followed shortly upon Peter-
son's being told by the employees that when next scheduled,
and presumably only if scheduled under the same (contend-
ed) unfair scheduling circumstances, they would not work
the machete job, the fact that the employees knew the
background for Peterson's remark must be considered.
Peterson was both responsible for getting the scheduled
work done and was without authority to alter the schedule
save for reasons not material to the grounds raised by the
employee's request. The employees were first told that both
he and they were bound by the schedule. Shorn of the crude
embellishment and then objectively viewed, the direction
encompassed within Peterson's additional remark essentially
related to that schedule restraint and in my view did not
reasonably extend as far as placing a stricture on the
employees' act of raising a grievance. To be sure, it may be
reasonably inferred from Peterson's remarks that he had
expressed to the employees an unwillingness on to attempt to
effect the change they desired in this working condition. I do
not view even that held and expressed position as reasonably
also imparting an undue stricture on the act of employees
raising grievances generally, or the same grievance else-
where. In those circumstances it seems to me Peterson's
remark essentially was directed at impressing upon Cabado,
:' In the above form, in given case circumstances the Board has previously
found such violative of Sec. 8(a) (I). Barnes and Noble Bookstores. Inc., 233
NLRB 1326(1977).
albeit in a crude and regrettable manner, that as far as
Peterson was concerned, he was bound by the schedule and
she had to follow his instruction which was to meet that
schedule, whatever it assigned them to do. I do not read into
the remark that Cabado (and/or Swift) was being warned or
threatened for having raised the complaint in the first
instance, nor on the basis of the remark's occurrence alone
would I conclude that it unlawfully interfered with employ-
ees' electing to raise such complaints or grievances.
The General Counsel's second contention involves a set of
wholly different considerations, basically even as to whether
the remark was made by Peterson as argued. The General
Counsel has argued that there is no reason not to credit
Cabado's testimony on this matter. Thus the General
Counsel would have the fact found that Peterson told
Cabado, after she registered her complaint about scheduling,
that if she did not like the type of work she was doing, to get
the hell out. I find myself not in agreement with this
assessment of the weight of the evidence.
To begin with I note again that this is not a matter alleged
in the complaint to be an unfair labor practice, though it was
a matter fully litigated." However I have noted that, in both
instances when Cabado testified about the conversation, she
said her testimony was generalized and the essence of
Peterson's remarks was that, if Cabado did not like the type
of work she was doing, she could get the "hell" out; that
there was always somebody else there willing to work; that
other people needed jobs; and that the Employer would find
somebody to do the job. Peterson on the other hand testified
(I find credibly) that he first told the employees that the day
shift left the schedule as to what he was to run and they had
to run by that schedule. (I note the similarity of Cabado's
earlier statement to the effect that, whatever the day
foreman left for the employees to do, they were to do; and if
that meant doing 1-18 (machetes) every day of the week
they would do them. The remainder of the statement was:
"or get the hell out of the plant, as there are plenty of people
who are willing to work if we ain't." In contrast Peterson
testified that he told the employees they would have to go
home (correcting could go home) and he would hire
somebody to replace them. It would appear that there is no
need to cite authority in support of the fundamental
proposition that in a matter of employees withholding labor
for economic reason, be it strike or concerted work protest,
the employer has the right to hire replacements willing to
perform the work; and it would seem clear as well that
employer's agent would have the right to notify employees of
its intent to exercise that right. In my view that is essentially
the import of Peterson's version of his remarks. There was
nothing in the demeanor of either Cabado or Peterson that
would warrant my crediting one over the other on this
matter; especially since there was more variance and
generalization in Cabado's testimony on this matter than in
Peterson's. The testimonial variances were among witnesses
called by the General Counsel. There were other witnesses
present at this conversation who were not called by either
party. It was incumbent upon the General Counsel to
persuade me by the weight of the evidence to one version
over the other. I find he has not done so; and I am not
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
convinced by the evidence presented that there was a
constructive discharge through harassment of Cabado on
June 22. The issue remains whether Respondent, in dis-
charging Cabado on June 26 because she walked out of the
plant, has unlawfully discharged her, which turns on the
pure issue of whether her action in that regard was protected
concerted activity.
As I have found that Cabado was discharged substantially
because of her walkout but have concluded the evidence is
otherwise insufficient to support a constructive discharge,'!
the case resolves itself to the central question of whether
Cabado's individual walkout nevertheless constituted a
protected concerted activity under any view of the evidence
presented. It perhaps should be observed that the General
Counsel has more refinedly contended that the individual
walkout should be viewed as an extension of other protected
concerted activity (which I have found) that employees
Cabado and Swift unquestionably engaged in with Peterson
in their discourse over machete scheduling and production.
If Cabado's departure is properly to be concluded as
protected concerted activity, or an extension thereof, the
subsequent discharge for same would be violative of Section
8(a) (1) irrespective of Employer's motive, Burnup & Sims,
Inc.. 379 U.S. 21 (1964). However, the General Counsel has
cited no authority deemed directly on point (as earlier
reviewed), nor has my own research brought any to light
that would appear to be clearly dispositive;"' though the
cases make clear that separate action of an employee is not
protected, Continental Manufacturing Corp.. 155 NLRB 255
(1965), though it occurred on the same day as a protected
walkout of other employees, Leprino Cheese Co.. d/b/a
Leprino Cheese Mfg. Co.. 170 NLRB 601, 607 (1968), and
even if there had been prior protected activity in which the
discharged employee had engaged in, cf. Invalex Sales Co.,
Inc., and Invalid Walker and Wheel Chair Co., 152 NLRB
773, fn. 1 (1965). Indeed there would appear tobe dicta in the
Barkus Bakery case, supra, to the effect that expressed
conditional willingness to walk out only in a group and
hence demonstrated unwillingness to walk out alone was a
key factor in the conclusion that one employee was construc-
tively discharged in violation of Section 8(a) (1) when he left
the plant after being told he was "done."
I conclude that even considering Peterson's version as an
admission that the employees were told that if they did not
want to do the machetes or their job they would have to go
home, it would appear that it would still be essential to
'' This is not to say that working conditions may not he made so unbearable
as to justify an employee walking off a job as a constructive discharge, as
noted by the General Counsel in 418 Geary. Inc.. d/b/a Stage Deli and
Theatre Lounge. 238 NLRB 276 (1978); Liberty Markets. Inc., 236 NLRB
1486 (1978). and similar cases. The matter however is one of degree, and
demonstrable animus is no small factor therein.
' Cases of individual work protest on the basis of rights established by
concerted action or safety rights made applicable to employees as a group by
establish concerted activity in work stoppage. I do not
overlook the circumstance of Peterson's admission that the
employees had earlier mentioned the subject of such a future
work stoppage, just as I may not overlook undenied
testimony of Peterson that his last words to Cabado were
that she had better have a good reason for leaving that
evening, a direction seemingly incompatible with present
intended or reasonably understood discharge. The fact is
that Cabado was not discharged on June 22. Rather the
weight of the credible evidence is that she collected her
belongings and walked out without permission by reason of
personal anger over Peterson's remarks (particularly the
crude one), and to a lesser degree because of her subjective
apprehensions over expression of her anger otherwise.
Certain of Cabado's statements made to Peterson that
evening, to Hall the next day, and in a prior letter to the
agency confirm by their terms that her action was an
individual decision as does the complete absence of evidence
that she made any effort at the time to enlist either of the
other second-shift employees to join her in a concerted work
stoppage protest. I am thus constrained to conclude and I
find that Cabado's departure was a spur-of-the-moment
decision, certainly understandable, but no less evident as
being the subjective reaction of an individual; in short, a
personal action, and thus not a concerted activity. Had
Cabado made an effort at a concerted walkout, even if were
unsuccessful, the provocation of Peterson might then well
have made the difference in support of a conclusion that
Cabado's walkout was a continuation of concerted activity.
As it is, in my view, the facts describe a personal reaction to
remarks not reasonably construable as a present termination.
As only concerted activity is protected by the statute, it
follows that Respondent's discharge of Cabado was not in
violation of Section 8(a) (1). Accordingly I shall recommend
that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Ontario Knife Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent did not violate Section 8(a) (1) of the Act
by discharging and refusing to reinstate Angel L. Cabado as
alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
operative statute are not deemed dispositive of the instant issue: e.g.. on basis
of contract right cf. N. L R.B. v. InterborG Contractors. Inc.. 388 F 2d 495 (2d
Cir. 1967); Roadway Express. Inc.. 217 NLRB 278 (1975); Merlyn Bunny and
Clarence Bunney. Partners. d/b/a Bunny Bros. Construction Company. 139
NLRB 1516 (1962); to enforce retention of status quo, Certified Ad Services.
lnc. 239 NLRB 156(1978): or to enforce statutory right, tAlleluia Cushion Co..
Inc.. 221 NLRB 999(1975).
1298