Peck, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1976

226 N.L.R.B. 1174 (N.L.R.B. 1976)

1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peck, Incorporated and Margaret Keefe. Case 18-
CA-4452
November 26, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On July 18, 1975, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER'
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
i In affirming the Decision of the Administrative Law Judge , we do not
adopt his analysis of our decision in Crenlo, Division of GF Business Equip-
ment, Inc, 215 NLRB 872 (1974), inasmuch as that decision is not relevant
to our decision herein
Nor do we adopt his description and analysis concerning the balancing of
the conflicting Respondent and employee rights All that we decide in this
case is that the Respondent "did have an `immediate interest ' in ordering the
protestors out of the plant " (ALJD, "Concluding Findings ," par 10 )
Finally , it is clear that this case is distinguishable from our decision in
Advance Industries Division-Overhead Door Corporation, 220 NLRB 431
(1975) There, we found that the facts supported the conclusion that the
employees ' action in not leaving the employer 's premises was protected con-
certed activity within the ambit of Sec 7 of the Act because of mitigating
circumstances which were grounded on the employer 's change of the em-
ployees' shift hours during the strike , a change of which the employees were
not informed in their invitation to return to their "regular shift," of which
they were unaware upon their return to work, and which they reasonably
assumed would affect their regular wages and their qualifying for holiday
pay Thus, the employees were protesting an immediate situation in which
there was a direct cause-effect relationship in the grounds for protest, the
necessary immediacy for the employees' action , and the means utilized to
express their protest We found, in substance , that, under these circumstanc-
es, the accommodation of the varying rights and interests favored the em-
ployees In this case , there are no nutigating circumstances Here, the em-
ployees staged their sit-in as a punishment against their supervisor for
imposing upon them valid conditions which they disliked and which they
wanted modified in the future Here , their refusal to leave the Employer's
premises was not predicated on any necessary immediacy of action, while
Respondent , on the other hand , had a clear immediate interest in attempt-
ing to secure its property which , moreover , did not unduly interfere with or
restrict the employees ' statutory rights We cannot find , therefore, as does
our concurring colleague, that the two cases are indistinguishable factually
and legally
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER PENELLO, concurring:
I agree with the Administrative Law Judge's find-
ing that the means utilized by the employees here in
registering their protest did not constitute protected
conduct.' Accordingly, I agree with his conclusion
that Respondent did not violate the Act by discharg-
ing the employees therefor. However, I am at a total
loss to understand how my colleagues reach the same
result in light of their decision in Advance Industries
Division-Overhead Door Corporation, 220 NLRB 431
(1975), in which I dissented from their finding pro-
tected employee conduct similar to that here.
In Overhead Door, five employees, some 1-1/2
hours after being informed that their shift was to be
abbreviated, engaged in a "work-in" after the sched-
uled hour of plant closing in defiance of employer
and police directives to leave the premises. Ultimate-
ly, the five were removed from the plant under police
arrest. The Board majority in that case , which includ-
ed the same Members who have joined in the main
opinion herein, found such employee conduct pro-
tected, concluding that the employees were " seeking
clarification" from the employer concerning the im-
pact an abbreviated shift might have on their qualify-
ing for holiday pay and that such activity did not
"lose its protection because of the employees' re-
maining on the plant premises after being ordered
off." The majority there further held that "[s]uch ac-
cess to and limited use of employer facilities by em-
ployees has been protected since Republic Aviation
Corporation v. N.L.R.B., 324 U.S. 793 (1945)."
In my dissent in Overhead Door, I stated: "In all
frankness, the result reached by the majority and the
proposition of law for which it stands are, in my
view, wholly repugnant to the purposes of the Act."
In its recent opinion denying enforcement to the per-
tinent portions of the Board's order in Overhead
Door, the Court of Appeals for the Seventh Circuit
expressly adopted that view. Advance Industries Divi-
sion-Overhead Door Corporation v. N. L. R. B., 540
F.2d 878 (1976). The court's opinion confirms my
belief that the Board majority in Overhead Door
wrongly decided that case. In the present case, the
same Board majority, while profession continued
2 In so doing, I do not adopt the Administrative Law Judge 's rationale
insofar as it implies that an employer' s right to control its property must
prevail over its employees' rights under Sec 7 of the Act solely because the
former is of a constitutional dimension whereas the latter is statutory in
origin Rather , my agreement with the Administrative Law Judge' s finding
here lies in the balancing of competing interests in reaching an accommoda-
tion between private rights and Sec 7 rights "with as little destruction of one
as is consistent with the maintenance of the other " Hudgens v. N L R B,
424 U S 507 (1976) In the instant case , it is clear to me that the balance
must be struck in favor of Respondent 's property right in closing and secur-
ing its premises at the conclusion of the workday
226 NLRB No. 167
PECK, INCORPORATED 1175
adherence to Overhead Door, reaches a result which
cannot be harmonized with their prior decision.
Turning to the facts in the instant case , certain
employees, at approximately 8:30 p.m. during the
late shift , requested to be excused from work early
because of warnings of a possible snowstorm. Re-
spondent's supervisor refused to grant them excused
absences , but suggested that if they wished to leave
early they could take an "occurrence" under compa-
ny policy. The employees declined to do so. At ap-
proximately 10 p.m., some 2 hours prior to the sched-
uled conclusion of the shift, the employees decided
they would engage in a sit-in at the end of the shift
"to prove a point" to the supervisor. At about mid-
night, the hour of plant closing, the supervisor in-
structed his assistant to secure the floor in order to
lock up the premises. His assistant reported that she
was unable to do so because the employees had occu-
pied the lunchroom and refused to leave. The super-
visor proceeded to the lunchroom and asked the em-
ployees to leave, whereupon one employee
responded that the weather was too inclement and
others stated that they were trying "to prove a point"
which, however, they did not divulge to him. The
supervisor then assured the employees that the
weather was not severe , advised them that they were
trespassing , and informed them that they would be
terminated if they did not leave. The employees,
however , continued the sit-in. A subsequent admon-
ishment by the supervisor similarly went unheeded.
Thereafter, at approximately 12:50 a.m., the employ-
ees left the premises at the direction of the police
who had been called to the plant.
The critical inquiry in each of these cases is not
whether the employees' concerns over which they
protested were meritorious. Rather , the focal point is
whether the means utilized by the employees in pro-
testing , when balanced against the employer ' s prop-
erty rights , are entitled to the protection of the Act.
My colleagues ' holding that the means utilized by the
employees here are unprotected is totally at odds
with their holding in Overhead Door . In each of these
cases the employees remained in the plant despite the
employer's directives to leave and in derogation of its
right to close and secure its premises at the conclu-
sion of the workday. Indeed, the result reached by
my colleagues in the instant case is even more puz-
zling as it seems obvious that the factors in Overhead
Door presented a far more compelling case than here
for finding the employees' conduct unprotected.
Thus, in Overhead Door, unlike here, the employees
effectively deprived the employer not only of its right
to secure its premises at the conclusion of the work-
day, but also of its right to maintain control over its
machinery by engaging in a "work-in ." And, in Over-
head Door, unlike here, the employees did not heed
police directives to leave the premises , but rather
were escorted from the plant under police arrest.
My colleagues' attempt to distinguish these two
cases leaves me totally unpersuaded. The factual dif-
ferences between the two cases , as drawn by the ma-
jority, are not marked and, indeed, it cannot be de-
nied that the two cases involve essentially the same
employee conduct and the identical employer inter-
est.
While I am greatly puzzled by the patently incon-
sistent results reached by my colleagues in the two
cases, I am even more disturbed by the legal theory
they now espouse for cases of this type. The majority,
in distinguishing the two cases, now holds that two
critical factors in determining whether employee con-
duct is protected are "the grounds for [the] protest"
and "the necessary immediacy for the employees' ac-
tion ." Implicit in this holding is the unprecedented
and wholly unsound notion that employee conduct is
protected if the employees' concerns lead them to act
promptly and if prompt action is likely to win their
point of contention with the employer. The crucial
consideration for my colleagues thus lies not in
whether the means utilized by the employees in pro-
testing , when balanced against employer rights, are
within permissible limits, but rather whether , regard-
less of the means utilized , the employee conduct is
likely to result in a forceful and successful presenta-
tion of grievances. The application of such a theory
in future cases most surely will put this Board in the
position of placing a premium on resort to confronta-
tion and violence by employees in protesting their
grievances. That the Act was not designed to protect
such conduct is abundantly clear from the Supreme
Court's opinion in N.L.R.B. v. Fansteel Metallurgical
Corporation, 306 U.S. 240 (1939).
Consistent with my dissent in Overhead Door, I
concur in the result reached by the majority in the
instant case . I would have hoped that my colleagues
in reaching this result had retreated from the unwar-
rantedly expansive concept of protected activity
which they previously embraced in Overhead Door.
Regrettably , in straining to distinguish the instant
case from that former case and in substituting an
unprecedented legal theory for the Board's and
courts' traditional analysis, the majority has extend-
ed the concept of protected activity even further be-
yond its legitimate limits.
The rationale of the majority of this Board in Over-
head Door, which was so soundly rejected by the Sev-
enth Circuit, seriously undermined the Supreme
Court's opinion in Fansteel. I was deeply disturbed
by the majority's reasoning in Overhead Door and I
am even more disconcerted here , not only because
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two of my colleagues have chosen to extend the ra-
tionale of Overhead Door, but also because I seriously
question whether this represents the majority posi-
tion of this Board.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed by Margaret Keefe, an individual, on
January 28, 1975, the complaint herein was issued on Feb-
ruary 18, 1975. The complaint alleges that Peck, Incorpo-
rated, hereinafter referred to as Respondent or the Compa-
ny, violated Section 8(a)(1) of the Act by threats of reprisal
and discharge for engaging in protected concerted activi-
ty I and by the discharge of 11 employees for engaging in
such activity. Respondent, by its answer, denies that it en-
gaged in conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held in Minneapolis,
Minnesota, on May 7 and 8, 1975. Appearances were en-
tered on behalf of General Counsel and Respondent. Briefs
were timely filed by General Counsel and Respondent on
June 16, 1975.
Based upon the entire record in this proceeding, and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a Minnesota corporation, with its principal place of busi-
ness in St. Paul, Minnesota, where it is engaged in the man-
ufacture, sale, and distribution of paper specialty products
and related products. During calendar year 1974, which
period is representative of its operations during all times
material herein, the Respondent in the course and conduct
of its business operations manufactured, sold, and distrib-
uted products valued in excess of $50,000, of which prod-
ucts valued in excess of $50,000 were shipped from its plant
in St. Paul, Minnesota, directly to points located outside
the State of Minnesota. During the same period, Respon-
dent, in the course and conduct of its business operations,
purchased paper, plastic, and other goods and materials in
excess of $50,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to its fa-
cility in St. Paul, Minnesota, directly from points located
outside the State of Minnesota.
As is admitted by the Respondent, it is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
i There were separate allegations as to threats of reprisal and threats of
discharge The only threats disclosed by the record were threats of dis-
charge
II. THE ALLEGED UNFAIR LABOR PRACTICES
It is alleged, in effect, that on or about January 10,
1975,2 Respondent violated Section 8(a)(l) of the Act by
threatening employees with reprisals and with discharge if,
and because, they engaged "in concerted activity with
other employees for their mutual aid or protection in pro-
testing the Respondent's refusal to permit employees to
leave the premises early," and that it further violated Sec-
tion 8(a)(1) of the Act by discharging II employees be-
cause they "engaged in concerted activity with other em-
ployees for their mutual aid or protection in protesting the
Respondent's refusal to permit the employees to leave the
premises early during a blizzard, making driving conditions
unsafe and hazardous."
There is very little, if any, dispute as to the material facts
involved in this proceeding. The following is a summary of
said facts as disclosed in the record.
Respondent operates a night shift beween the hours of
3:55 and 11:55 p.m. On Friday, January 10, 1975, approxi-
mately 26 of the 36 employees scheduled to work on that
shift reported for work. Three called in and said they
would not be reporting to work because of bad weather
and seven called in and said they would not be reporting to
work because of illness.
The shift had three group leaders and one temporary
senior group leader, Margery Lean. The supervisor of the
shift was Lee Lindsey, whose immediate supervisor was
Raymond Hess, packing department manager. It appears
that the night shift merely engages in packaging opera-
tions.
There had been a storm in Minnesota for a period of
several days and over TV and radio there had been warn-
ings about the snowstorm It appears that the storm was
much more severe in other portions of Minnesota than in
the St. Paul-Minneapolis area, but some effects of the
storm had been felt in the Twin Cities. It does not appear
that any of the people who reported to work had any sig-
nificant difficulty in driving to the plant, although the
streets were slushy and there was some mixed snow and
rain. Of the 26 employees who reported for work, only two
were male, Gregory Sampson, whose job was "material
handler and machine adjustor," and Steve Krolchuk, a
"material handler." It appears that also present that night
was Hess, who remained after his normal working hours
because he was preparing a budget for his department.
Lindsey credibly testified that Sampson, Lean, and he
came in early to make preparations for the start of the shift
and that about 3:30 p.m. he had a brief conversation with
both of them in which they asked him if the employees
were going to go home early and that he responded that he
would keep an eye on the weather. He further credibly
testified that he talked with Hess about the weather and
that Hess told him he would check with "road service," a
number which can be called to get information about the
weather and driving conditions. Hess credibly testified that
he called between 7 and 7:30 p m. and was informed that
there were severe weather conditions, but that he did not
2 The conduct alleged to be violative of the Act actually occurred during
the first hour of January II (immediately after midnight on the night of
January 10)
PECK, INCORPORATED 1177
recall any mention was made with respect to the local area.
In Lindsey's discussion with Hess, they talked about the
possibility of closing the plant early and they decided to
keep an eye on the weather to determine if closing the
plant early was warranted.
It appears that in the early portion of the shift a number
of employees asked Lindsey about the possibility of going
home early and he informed them that he would be keep-
ing an eye on the weather to see if it were advisable to close
the plant early. Lindsey credibly testified that about a little
after 8 p.m., he checked with road service and was in-
formed that it was advisable to "drive with caution" in the
local area and that the weather was severe in other parts of
Minnesota.
It should be noted at this point that the Company had a
policy with respect to absences which was set forth in writ-
ing and was distributed to all employees. Further, it ap-
pears that the policy was well known to the employees. The
policy provides for "excused absences" under certain con-
ditions, including absences excused at the discretion of the
Company for "unusual circumstances." It also provides for
"unexcused absences." In effect, an unexcused absence is
an absence which does not meet the requirements of an
excused absence, and there are certain limits on such "ab-
senteeism." For each 6-month period, employees are enti-
tled to 9 days of unexcused absences (which are called
"occurrences") without any disciplinary action. If an em-
ployee accumulates more than 9 days of absence occur-
rences, he is suspended for 5 working days which then
wipes his slate clean. And, if he accumulates more than 9
days of absence occurrences within either of the two 6-
month periods following the end of his suspension, it
constitutes grounds for termination. It is further noted that
it is reasonable to assume that virtually none of the em-
ployees had accumulated a number of occurrences, if any,
for the 6-month period commencing January 1. It is also
noted that an employee is not paid for an absence whether
it is excused or unexcused, that the only difference between
the two is the aforementioned limitation on the number of
occurrences.
The lunch period for the shift is between 8 and 8:30 p.m.
and immediately after the lunch period a group of approxi-
mately 12 employees approached Lindsey and asked to be
excused to go home because of the weather, in other words,
they were asking for what is above referred to as an "ex-
cused absence." Lindsey denied the request on the ground
that he did not consider the weather bad enough to war-
rant his giving them an excused absence. He credibly testi-
fied that he told them they could leave, but that if he "ex-
cused" them he would have to "close shop."
It appears from the credited testimony of Lindsey and
Leann Partlow that she asked Lindsey about taking an oc-
currence and, according to her testimony, he told her she
would have to take a half-day occurrence if she decided to
leave early, which apparently she did not elect to do. Lind-
sey further credibly testified that she was the only one who
asked about leaving by taking an unexcused absence, that
all of the other requests from employees with respect to
leaving early were for "excused" absences.
As stated above, it appears from the record that employ-
ees understood they could take "occurrences" and leave.
Not only was it spelled out in the Respondent's aforemen-
tioned written policy, but it further appears that they were
familiar with it as a matter of practice Eugene Hosch, Re-
spondent's vice president for manufacturing, credibly testi-
fied that, in July 1974,3 out of 56 people scheduled to work
on the night shift, somewhere between 20 and 30 employ-
ees took an occurrence and left early because of the heat
and that 5 of the employees who were discharged on the
night of January 10, 1975, took an occurrence at that time
(on July 9, 1974). It is further noted that on April 3, 1974,
Lindsey gave employees an excused absence because of
bad weather, even though some of the shift stayed on and
worked because they had no way of getting home midway
through the shift. It also appears that the three people who
had called in on January 10, 1975, and said they would not
be reporting for work because of the bad weather were
merely given an occurrence. The above exposition as to the
Respondent's policy and practice with respect to "occur-
rences" is set forth because it relates to the employees' pur-
pose in remaimng after their shift had ended (which will be
discussed more fully herembelow).
Sampson testified that he drove to a restaurant during
the lunch break and that his car slid and spun around be-
cause of the slippery condition of the road. Lindsey credi-
bly testified that he and Hess talked with Sampson after he
returned from lunch and asked him how he felt about the
weather and that he reported his experience with his car.
They told Sampson they were going out to lunch and
would check the condition of the roads. They left at 9 p.m.
Lindsey credibly testified that they drove to the restaurant
to which Sampson had gone without any incident; that
they found that there was just light snow and slushy
streets; and that when they returned they told a group of
employees they encountered no problems. Hess credibly
testified that he left a little after 10 p.m. and that before he
did he told Lindsey to keep an eye on the weather and shut
down if it took a turn for the worse. He further credibly
testified that he drove to his home (which normally took
him 15-20 minutes), that it took him no more than 25 min-
utes, and that he encountered no significant difficulty.
Upon his return home, he called Lindsey and told him he
had no difficulty getting home and that the traffic, how-
ever, was light and moving more slowly than usual.
There are three or four radios in the production area and
the weather forecast was that a storm was approaching.
While two witnesses testified that it was forecast to hit the
immediate area by midnight, Partlow testified that the
weather reports she heard on the radio were for other parts
of Minnesota and Hess testified that the forecasts were that
a severe storm was approaching but he had no recollection
of when it was predicted to arrive. Lindsey testified that he
kept close attention to the weather reports on the radio and
he went outside four times between 10:45 and midnight to
check on the weather. The first time he found there was
Just light snow, at 11:15 p.m. he found that it had stopped
snowing, the third time he found there was no change, and
at 11:45 p.m. he found that there was just light snow fall-
ing. The official weather report for the area published by
i It appears from the record that it was on July 9, 1974
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the U.S. Department of Commerce confirms Lindsey's re-
ported observations that there was very little precipitation
between 9 p.m. and midnight. As a matter of fact, the re-
port discloses that precipitation considerably diminished
after 6 p.m. on January 10, and that from 3 a.m. to 6 a.m.
on January 11 there was only a "trace" of precipitation.
At the end of the shift, Lindsey instructed the temporary
senior group leader, Margery Lean, to secure the floors (in
preparation of closing the building) and she credibly testi-
fied that she told Lindsey that she could not do so because
the employees were in the lunchroom,' that she had heard
that some of them were not going to leave. She further
credibly testified that she punched out and went to the
lunchroom and told the employees present that Lindsey
said that they were trespassing and would have to leave,
that they were sitting at a table playing cards and drinking
coffee, that they asked her to join them, but she refused
and stated that she was going home, and that when Lind-
sey came into the lunchroom she left.
Following is a summary of what then occurred based on
credited testimony in the record. When Lindsey entered
the lunchroom, he saw 12 employees there. They were the
11 employees alleged to have been discriminatorily dis-
charged and Krolchuk. Lindsey asked the 12 people to
leave and Sampson replied that the weather was too severe
and they were trying to "prove a point." Lindsey told
Sampson that the weather was not as bad as he thought it
was. Apparently some of the employees continued playing
cards and the others just sat at the table. Lindsey told them
that if they did not leave they would be terminated and
asked them if they did not realize that they were trespass-
ing. He repeated that if they did not leave they would be
terminated. He then called Hess at 12:15 a.m. and told him
that there were 12 employees who refused to leave the
premises and Hess instructed him to give them a final
warning and that if they did not leave to call the police.
Lindsey went back to the lunchroom and gave the employ-
ees a final warning and told them that if they did not leave
he would call the police. There was no response, and they
continued to do what they had been doing. He then wrote
down the names of the 12 employees who were there and
told them they were terminated. Following that, he called
the St. Paul city police and was told that a squad would be
sent over. He went down to unlock the door and on his
way back he saw Krolchuk, who told him that he was not
part of the group but that he had two riders in the group in
the lunchroom and that he did not know what they were
trying to prove. Lindsey told him to go down to the lobby
and wait. Two policemen arrived at about 12:45 a.m. and
Lindsey went with them to the lunchroom. It appears that
when the police entered they asked what was going on and
Sampson said that the employees were sitting in the lunch-
room because of the storm and to make a point It further
appears that the officers said, "Well, you don't prove no
point this way," and when one of the girls said something
about a belief that the roads were closed, the police stated
that all the roads were open, that conditions were not too
The work area is on the third floor and the lunchroom on the fourth
floor
s
Krolchuk was not included among the dischargees
bad to drive, and that the forecast was that it would be
worse later. Also, the police asked if the employees had
checked the weather conditions and they replied that they
had not. The police then told them that conditions were
not as bad as they thought. The police further stated that if
they did not leave they would be arrested for trespassing.
All 11 of them left about 12:50 a.m.
A number of factors convince me that it was not fear of
weather conditions which prompted the group to remain in
the lunchroom after the shift ended. It appears from the
record that the weather conditions cannot be checked from
the inside of the building because of the location of the
windows, and it further appears that none of the employees
who stayed in the lunchroom had checked the weather
conditions at any time after the lunch break (8 to 8:30
p.m.). Despite the ominous weather forecasts, it appears to
me that had they been fearful of the weather conditions
they would have sent someone outside to check on
Lindsey's assurances that the state of the weather did not
warrant closing the plant early. Furthermore, if they had
been in fear of their safety they could have taken occur-
rences as they did in July 1974 when they took occurrences
because of the heat 6 In addition, there is evidence that a
number of the employees planned to stop at a bar if they
got off early, apparently including some of those who re-
mained after the shift ended. Furthermore, it appears that
the organization of the plan to sit-in after the end of the
shift commenced shortly after the lunch break, at which
time they could not have known what the weather condi-
tions would be at midnight when the shift ended. Also, it
appears that the decision to remain was made at least 2
hours prior to the end of the shift which would indicate
that it was not predicated on what the weather conditions
might be at the time the shift ended.
On the contrary, it is my opinion that the primary reason
for the sit-in was to teach Lindsey a lesson by forcing him
to stay at the plant with them by making it impossible for
him to lock up the plant, so that he might be more lenient
in the future when similar conditions arose . It is noted that
Lindsey himself testified that he was told in the lunchroom
that the employees were refusing to leave in order "to
prove a point." In addition, there is other testimony which
supports the inference that I have drawn. Claussen testified
with respect to the discussions about sitting-in as follows:
We figured that we would try and make it better for
the next time something like this happened and to try
and prove a point that you just don't treat your em-
ployees like they are something you can just throw out
when something doesn't go their way.
She further testified with respect to the discussions of the
reason for staying that "we were going to just show them
how it feels to have to just sit there when you really want to
go home." Also she testified, "[W]e said that we'll show
e Gloria Claussen testified that she did not take an occurrence because in
the summer of 1974 Lindsey told a group of girls who wanted an occurrence
that if they took it they need not come back to work Lindsey denied this
testimony and Claussen herself testified that she took an occurrence on July
9 because of personal discomfort No one corroborated her testimony as to
Lindsey's threat and, since Lindsey was present on the night of July 9 when
the occurrences were granted because of the heat, her above testimony is
not credited
PECK, INCORPORATED 1179
him [Lindsey] because he has got to sit with us, too, and he
is not going to be able to leave until we do."
It appears that Sampson was one of the instigators of the
plan to remain in the plant. He testified that as he walked
around the work area, talked to a number of people, and
said to them that he "felt we should stay later and have Lee
stay with us because we weren't allowed to go home earlier
in the night when we had asked to be let go." He further
testified as follows:
A. I have said that if we all, if the majority of us go
together and stayed after hours that we would prob-
ably show that we were interested in showing them
our feelings and that in the future times when coinci-
dences like this arose that it would more than likely be
remembered and thought out more carefully.
Q. What are you referring to when you speak of
coincidences like this?
A. Weather conditions, bad weather conditions in
general, something that has to do with the employees,
a decision involving them.
Although Sampson in his pretrial statement made no men-
tion of this purpose and did not do so in a letter to a
newspaper about the incident, as well as in his interview on
the following Monday when he attempted to obtain rein-
statement , nevertheless, his testimony is credited as to the
employees' purpose in remaining after the end of the shift.
Rose Brietkrietz testified that she was asked by one of
the employees who was part of the group of 11 who re-
mained after the shift, Becki Cunnien, to remain with the
group that was planning to sit in and that Cunnfen told her
that she "should stay to protest because Lee wouldn't let
them [the employees] go home earlier." Furthermore, Briet-
krietz credibly testified that Cunnien told her that she
could not give her a ride home because "they were going to
bug Lee [Lindsey] so they could get off by 8 and go out." It
appears from the context of her testimony that by going
out Cunnien meant going to a bar. There is also other evi-
dence in the record which tends to indicate that other em-
ployees were interested in getting out early in order to en-
gage in similar recreation.
In light of the above, I am led to conclude that there is
little or no merit to the contention of the employees that
they remained after the shift ended because of fear of dan-
gerous weather conditions Also, it is noted that the deci-
sion not to close the plant early was not based on poor
judgment. The record discloses that neither the employees
who left at midnight nor those who remained until nearly I
a.m. encountered any significant difficulty in driving
home.' As a matter of fact, one of the employees who left
at midnight testified that she and her husband stopped at a
bar until 12:45 a.m. to have a drink. Another who left at
the same time testified that she drove to her sister 's house
to pick up her children, drove to Minneapolis to pick up
her boyfriend, and then they went to a restaurant. Also, the
record discloses that four of the employees who remained
in the lunchroom drove to the home of one of them and
7 The testimony of several witnesses as to difficulties they encountered
were not so grave as to permit the conclusion that they were caused by
extremely severe weather conditions
spent 45 minutes there drinking beer before the other three
continued on their way.
Concluding Findings
The only communication the employees had with Lind-
sey as to the reason for their sit-in in the lunchroom is the
statement that they were doing so because of the weather
conditions and "to prove a point." They made no attempt
to indicate to Lindsey what the point was they were trying
to make, nor did they attempt to discuss with him or bar-
gain with him as to the grievance relating to the point to
which they referred.
The Respondent concedes that a demand for a change in
terms or conditions of employment does not technically
have to be made before protected concerted activity can
begin, but asserts that the lack of such a demand raises a
strong inference that the employees were out for personal
vengeance and not communication , citing cases which hold
that concerted activity undertaken out of personal animos-
ity toward a supervisor or another employee is not protect-
ed by Section 7 of the Act I am not of the opinion that the
record would support a finding that the sit-in was motivat-
ed by personal animosity toward Lindsey.
It appears that the "point" the employees were trying to
make was that in the future, should similar conditions ar-
ise, that is, bad weather, and they were not excused early,
they would again occupy the plant and force Lindsey to
keep it open and stay with them as long as they decided to
remain. Thus, they were attempting to force him to be
more lenient in deciding whether to excuse them when
weather conditions were bad in the future. As indicated
above, I do not believe that they were staying because they
were in fear of hazardous weather conditions 8 Therefore,
no purpose would be served in attempting to determine
whether or not the Respondent owed the employees a duty
under the Act to afford them shelter from a storm after the
shift ended by not closing its plant as was its custom.
The General Counsel, in his brief, argues that Leslie
Metal Arts Company, Inc., 208 NLRB 323 (1974), holds
that the banding together of employees to protest the way
in which supervision is exercised is protected concerted ac-
tivity, that the sit-in of the employees in the lunchroom was
to protest the management's decision not to close the plant
early and give employees excused absences, and, therefore,
a protest over such a decision by management is concerted
protected activity and a discharge for engaging in it is un-
lawful. The General Counsel further asserts that the fact
that the employees protested by remaining on the
employer's premises after their work shift ended did not
render their protest unprotected, that they did not in any
way interfere with the employer's goods, materials , or pro-
duction machines and were entirely peaceful The General
Counsel contends:
It is respectfully submitted that the discharged em-
ployees were privileged to make use of Respondent's
8 The record will not support a finding that the employees organized the
sit-in because they were fearful of hazardous weather conditions at the end
of their shift
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property as a means of protest, especially where their
concerns were legitimate and the risk of leaving with
potentially high in view of the weather forecast.
While it might very well be argued that protesting the
failure to excuse the employees early constituted concerted
protected activity as a grievance with respect to the terms
and conditions of their employment, I am of the opinion
that, in discharging the employees, management was not
motivated by their protesting over such a grievance, but
rather that the discharge was motivated by the means they
took to demonstrate their protest, that is, by refusing to
leave the building at the end of their shift, thereby interfer-
ing with the Company's control over its property.
The General Counsel fails to cite any cases to support
his contention that said means employed by Respondent's
employees constituted protected concerted activity. On the
other hand, cases cited by Respondent that the means em-
ployed did not constitute protected concerted activity are
not sufficiently similar factually to furnish a precedent. For
example, Respondent cites N.L.R.B. v. Fansteel Metallurgi-
cal Corporation, 306 U.S. 240 (1939). The facts in that case
are so dissimilar to those present herein that the holding in
Fansteel cannot be considered to govern the instant case.
The Respondent further cites Cone Mills Corporation v.
N.L.R.B., 413 F.2d 445 (C.A. 4, 1969), in which the court
held that an employer was lawfully entitled to discharge
protestors where they were ordered to go back to work or
leave the plant and did neither. This court decision consti-
tuted a reversal of the Board's underlying Decision and
there is no indication that the Board has ever taken the
same position as that of the court in the cited case. As an
example, the Board came to an apparently opposite con-
clusion in Lee Cylinder Division of Golay & Co., Inc., 156
NLRB 1252, 1262 (1966).9 In that case, striking employees
loitered or wandered about the plant for 1-1/2 or 2 hours
while waiting a decision on a grievance, and the Board held
that this did not convert the employees' strike into unpro-
tected activity, distinguishing the facts in that case from
the facts in the Fansteel case. Also the Board in the Golay &
Co. case stated that it rejected respondent's contention that
"by remaining on the Employer's premises after discharge
or order to vacate, the in-plant strikers became trespassers,
thereby turning an otherwise lawful strike into an unlawful
sitdown strike."
It is noted also that in Pepsi-Cola Bottling Co. of Miami,
Inc., 186 NLRB 477, 478 (1970), the Board affirmed a Trial
Examiner's Decision in which he stated that a strike was
not converted into unprotected activity by a sit-in which
"lasted only a few hours and did not extend beyond the
employees' normal working hours, and no employee sought
to bar or exclude company officials." It is noted, however,
that the cases in which the Board found a sit-in did not
convert concerted activity into unprotected activity were
cases in which the employees engaged in such activity dur-
ing their normal working hours and did not otherwise in-
terfere with the employer's operations or interfere with the
employer's property rights. It appears that the rationale in
9 The Board' s Order was modified by the court of appeals , Golay & Com-
pany, Inc v NLRB , 371 F 2d 259 (C A 7, 1966)
these cases is that the employer had no "immediate inter-
est" in ordering the protestors out of the plant (apparently
during their normal working hours) and by so doing un-
duly restricted employees' right to present grievances.
N.L R.B. v. Pepsi-Cola Bottling Company of Miami, Inc.,
449 F.2d 824, 829 (C.A. 5, 1971) 10
There is one case which was cited by the Respondent
that is somewhat similar to the instant case , Crenlo, Divi-
sion of GF Business Equipment, Inc, 215 NLRB 872 (1974).
In that case, the Board found that it was not unlawful for
the employer to discharge the leader of a group of employ-
ees from the second shift who instigated them to enter the
plant to support a work stoppage of the first shift employ-
ees. In that case , however, there were apparently two fac-
tors which prompted the Board's Decision : (I) there was a
company rule prohibiting unauthorized employees' entry,
and (2) the second shift employees were warned by super-
visors at the front gate that they were not authorized to
enter the plant and would be subjected to disciplinary ac-
tion if they did. It appears from the Board's rationale in the
Crenlo case that the second shift employees who joined in a
sit-in during the first shift were engaging in unprotected
concerted activity. In the instant case , the sit-in occurred
after the shift had terminated, so their sit-in was not con-
ducted during their normal working hours. While it does
not appear that Respondent had a rule prohibiting unau-
thorized entry as found in the Crenlo case, supra, it is infer-
red that it was a well-established practice that the employ-
ees at the end of the night shift were required to leave the
plant in order for the plant to be locked up. It appears
from the rationale of the Crenlo case that, while on-duty
employees may lawfully sit-in to protest a grievance, off-
duty employees are not entitled to the same privilege, at
least where there is a rule prohibiting their access to the prop-
erty and they are warned about it. I am not convinced that
the practice of closing the plant at the end of the shift can
be equated with a rule denying access to off-duty employ-
ees, and, therefore, although it is persuasive, I am not fully
satisfied that the Crenlo case can be considered a precedent
which would govern the instant case, even though it is not-
ed that in the instant case the employees were warned
against remaining in the plant.
The discharged employees were not engaging in a strike
by means of a sitdown in the lunchroom. They were not
withholding their services (being no longer on duty). What
they were doing was taking over control of Respondent's
property after they were supposed to leave by occupying a
portion of the building in order to prevent Lindsey from
locking up the plant and to prevent him from leaving, since
he was forced to remain until they left before he could
secure the building.
Even if it were to be assumed their engaging in a protest
against Respondent's failure to excuse them early consti-
tuted protected concerted activity, II it is concluded that the
means used by the employees (to register their protest) for
10 The court in this Decision affirmed the above-mentioned position tak-
en by the Board in the Pepsi-Cola Bottling Company case, supra
While this appears to be a reasonable assumption, it appears that no
purpose would be served in considering the validity of such an assumption
since, as concluded hereinabove, the protest itself was not the motive for the
discharge
PECK, INCORPORATED 1181
which they were discharged did not constitute protected
concerted activity. Exhaustive research has failed to reveal
any case which has sufficient factual similarity to the in-
stant case to furnish a clear precedent for arriving at, or for
not arriving at, such a conclusion.12 It is my opinion, how-
ever, that, in the circumstances of this case, a balancing of
the equities in the rights of the employees as opposed to
those in the rights of the employer, i.e., of the Section 7
rights of employees in contrast to the constitutional rights
of Respondent to have control of its property, the Respon-
dent's rights should prevail. In the instant case, Respon-
dent did have an "immediate interest" in ordering the
protestors out of the plant. Cf. N L.R.B. v. Pepsi-Cola, su-
pra. 13
Thus, it is concluded that neither Lindsey's ordering the
employees to leave the building and warning them that he
would discharge them if they did not do so, nor his even-
tual discharge of them for refusing to obey his order and
instead taking control of Respondent's plant by occupying
12 The "sit-in cases" in which the Board held that the employees were
engaged in protected concerted activity involve taking such action during
the employees ' working time and where there was no violation of, or inter-
ference with , the employer 's property rights
13 Furthermore, it cannot be said that the employees had no other imme-
diate means of registering their protest For example , they could have made
an oral protest when their request to be excused was denied , filed a written
protest , walked out on strike, or engaged in a sitdown strike during their
working hours after Lindsey refused to grant them an excused absence at
8 30 p in Therefore , it cannot be said that Respondent's employees were
"unduly restricted" from presenting their grievance by being ordered out of
the plant It is noted that during the shift a petition was prepared (although
it is not clear as to what its contents were ), but it was aborted when one of
the employees destroyed it
a portion of it was violative of Section 8(a)(I) of the Act, as
alleged.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following-
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The General Counsel has failed to prove by a prepon-
derance of the evidence the allegations in the complaint
that Respondent violated Section 8(a)(1) of the Act by
threatening reprisals and threatening to discharge employ-
ees if they did not leave the plant after the termination of
their shift or by its discharge of the II employees who
refused to do so.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
The complaint should be, and is hereby, dismissed in its
entirety.
14 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes