Pink Supply Corp.

National Labor Relations Board - Board Decisions

May 21, 1980

249 N.L.R.B. 674 (N.L.R.B. 1980)

674 PINK SUPPLY CORPORATION
Pink Supply Corporation and Kathy Block, Mary
Riffe, Nancy Lilledahl, and Marlene Egge. Case
18-CA-6008
May 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 25, 1979, Administrative Law
Judge Irwin Kaplan issued the attached Decision in
this proceeding. Thereafter, General Counsel and
counsel for the Individuals filed exceptions and
supporting briefs, and Respondent filed a brief in
support of the Administrative Law Judge's Deci-
sion.
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 hasdecided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Chairman Fanning's dissent, relying in part on
discredited testimony, in our view does disservice
to the findings of the Administrative Law Judge
and to the conclusions he drew from them. The
Administrative Law Judge found, in essence, that
the General Counsel failed to establish by a pre-
ponderance of the credible evidence a prima facie
case that the alleged discriminatees were dis-
charged. The credited testimony left the parties in
a situation where Respondent told the employees'
spokesman that, because it needed people to do
their work (while they engaged in a concerted re-
fusal to work), it would "have to act as though
[they] were quitting and find replacements." When
the spokesman denied that they were quitting, Re-
spondent asked, "Well, what do you call it? What
am I supposed to do?" To these questions there
was no response, except that Block volunteered
that the employees would come in to clean out
their desks, and they did so the next day. Again,
the credited testimony negates any attribution to
Respondent of the decision that they clean out
their desks.
I It is the Board's established policy not to overrule an administrative
law judge's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950)
enfd I188 F.2d 362 (3d Cir 1951) We have carefully examined the record
and find no basis for reversing his findings
We hereb) correct, however, the Administrative Law Judge's next-to-
last reference to "Wernick" in the penultimate paragraph of sec II B,
"Discussions and Conclusions," of his Decision. The reference should be
to "Block."
249 NLRB No. 91
The Administrative Law Judge concluded that
the events so summarized fall short of a discharge.
Chairman Fanning argues that this conclusion rep-
resents a viewing of the events through Respond-
ent's eyes instead of the employees' eyes. We agree
that the Board must attempt to view the events as
the employees reasonably would have, but we
think the Administrative Law Judge has properly
done so by analyzing the words spoken in light of
the circumstances known to the employees.
This is not a case where an ambiguity was cre-
ated by Respondent's wrongdoing and where, con-
sequently, the burden of the results of that ambigu-
ity must fall on it. While the whole situation may
have put the employees in some doubt as to their
status, we see no basis in the credited evidence for
charging Respondent with any heavier responsibili-
ty for the uncertainty than is attributable to the
employees themselves. The conversation taken as a
whole did not, as we attempt to view it through
the employees' eyes, present anything like an un-
equivocal refusal by Respondent to permit them to
return to work. The situation certainly did not
make further inquiries into Respondent's intentions
futile, as Chairman Fanning suggests. At worst it
created an uncertainty that each party was equally
well equipped to rectify. In these circumstances we
agree with the Administrative Law Judge that the
General Counsel has not met his burden of proof. 2
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 orders that the complaint be, and it hereby
is, dismissed in its entirety.
CHAIRMAN FANNING, dissenting:
The Administrative Law Judge dismissed the
complaint alleging Respondent violated Section
8(a)(1) of the Act by discharging employees Riffe,
Lilledahl, and Egge and Supervisor Block (herein
called the design consultants) for engaging in pro-
tected concerted activity on the grounds that they
were not discharged but quit. The General Counsel
excepts, contending that, even accepting the Ad-
ministrative Law Judge's credibility findings, it is
clear that the design consultants did not quit but
reasonably believed they had been discharged.
2 In passing, we note that the Chairman's discussion of Supervisor
Block's right to reinstatement is premised on the assumption that Block
was dis.:harged. Since the record supports the Administrative Law
Judge's conclusion that there is no reasonable basis for finding that
anyone was discharged, we find it unnecessary to comment on the Chair-
man's analysis of Block's situation
614
PINK SUPPLY CORPORATION 675
On June 21, 1978, the design consultants decided
that in order to protest their low pay and other
work grievances they would all call Respondent's
facility on June 22, and advise they would not be
in to work. They also designated Block as their
spokesman to arrange a group meeting with man-
agement on June 23 to discuss their grievances. By
9:30 a.m. on June 22, after they had all called in as
planned, General Manager Spahn found out what
was happening and called Block who requested
Spahn and Vice President Wernick meet with the
design consultants to discuss their grievances.
The Administrative Law Judge discredited
Block's testimony which would have established
that they were, in fact, discharged. Rather, he
credited Wernick even though he noted Wernick
had no idea of the chronological order of the
period of time in which the various telephone calls
which constitute the facts occurred.
Nonetheless, accepting the credibility findings, it
is clear that Wernick in his telephone conversations
with Block which began at or about I p.m. said he
would not meet with the design consultants as a
group; sometime in an early conversation he asked
them to return to work; and he also told Block he
was looking for their replacements and had already
contacted the University of Minnesota and a pri-
vate employment agency in this regard.3
The Administrative Law Judge found, based on
Wernick's testimony, that the incident ended at or
about 4 p.m. when Block insisted Wernick meet
with the group at 8 a.m. the next morning (one-half
hour before work started) to discuss the situation.
Wernick, who had refused throughout the conver-
sation to meet with the design consultants as a
group, asked Block if they were coming in to work
or only to discuss their problems. Block replied, "It
would depend on how the meeting goes." Wernick
then told Block he could not depend on her and he
was "going to have to act as though you [design
consultants] were quitting and find replacements."
Block replied, "No, I am not quitting." Wernick
replied, "Well, what do you call it? What am I sup-
posed to do?" Wernick testified that Block did not
respond. The next day the design consultants en-
tered Respondent's facility as a group to clean out
their desks. Wernick met them and provided boxes
for their belongings. There was no discussion about
returning to work.
The Administrative Law Judge impliedly found
the design consultants were engaged in protected
concerted activity since he found they were eco-
3 Wernick testified in response to a question by the Adninistrative
Law Judge that he contacted the University of Minnesota before he told
Block he was looking for replacements when he "was convinced that
these people were not going to change their position." ie.. they would
insist on a group meeting.
nomic strikers and noted that it is not necessary for
discharged strikers to make application for rein-
statement. In any event it is clear they were en-
gaged in protected concerted activity in attempting
to present grievances. He then concluded the only
issue is whether the design consultants quit or were
fired, and stated the test upon which that finding
should be based, "Whether the statements and
action of the employer at the time of the termina-
tion would reasonably lead [the employees] to be-
lieve that [they] had been discharged." The C. J.
Krehbiel Company, 227 NLRB 383, 384 (1976). The
Administrative Law Judge after stating the test
then ignored the fact that the test is obviously em-
ployee oriented or directed and discussed every-
thing not in terms of what the employees reason-
ably thought but what Wernick thought.
The Administrative Law Judge found that Wer-
nick's clear-cut statement that he would have to
act as if the design consultants had quit and would
have to hire replacements meant only that he had
customers to be serviced and would need replace-
ments. He found that in the totality of the circum-
stances he would not find that the term "quit" was
tantamount to "discharge." In so finding he noted
that the design consultants were not directed but
volunteered to come in and clean out their desks,
which is further indication that they quit. He did
not mention, however, that this finding is based on
Block's testimony which he otherwise discredited,
and specifically her testimony that, when she asked
Wernick if they were fired because they were not
quitting, Wernick said, "As far as I'm concerned
you quit when you walked out that door." It was
at this point Block testified that she determined
there was nothing else to discuss (they had been
fired) so she declared that "[they] would be in to-
morrow to clean up [their] desks." In that context
Block's words are hardly those of a voluntary quit
as the Administrative Law Judge finds.
In addition, however, it should be noted that
Wernick, whose testimony on this point the Ad-
ministrative Law Judge conveniently ignored, testi-
fied that Block asked if they should come in and
clean out their desks but added he did not reply in
the affirmative to her request. The General Coun-
sel then pointed out that in his affidavit he stated
Block asked if they should come in and clean out
their desks, to which he replied that "they should
come in and get whatever belonged to them."
Wernick denied he said it that way. Thus, although
Wernick who was credited testified Block asked if
they should come in to clean out their desks, a
question which according to his testimony he ap-
parently never answered, the Administrative Law
Judge concluded, based on Block's generally dis-
PINK SUPPLY CORPORATION ::
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited and taken-out-of-context testimony, that
the design consultants volunteered to come in and
clean out their desks. In my opinion, that is a
rather selective reading of the record.
When the design consultants arrived to clean out
their desks, Wernick was ready with boxes. The
Administrative Law Judge points out that the em-
ployees said nothing, which he concludes was fur-
ther indication they had quit. But, why say any-
thing if they reasonably believed they had been ter-
minated? Why engage in an act of futility? On the
other hand, the Administrative Law Judge found
that the fact that Wernick said nothing at that time
is not reason to conclude that a negative inference
should be drawn against Respondent concerning
Wernick's intention. Yet if Wernick had not in fact
terminated the employees and wanted them back
would it not be natural for him to ask them if they
wanted to return? In my opinion the Administra-
tive Law Judge's reasoning is somewhat faulty,
particularly since the applicable test is not directed
to Respondent's intention; it is employee not em-
ployer oriented-"what did the employee reason-
ably believe."
Likewise the Administrative Law Judge, appar-
ently to show Wernick would not fire the design
consultants, emphasizes that Wernick had asked the
employees earlier in the day to come back but ig-
nores his testimony that he also told them he was
already looking for their replacements and his testi-
mony that since he was convinced the design con-
sultants would not change their positions he had al-
ready sought replacements before his final conver-
sation with Block.
The Administrative Law Judge apparently de-
cided the case on his perception that after Block
said, "No, I'm not quitting," and Wernick replied,
"Well, what do you call it? What am I supposed to
do," Block was supposed to say something else.
But what? It would be perfectly normal to assume
Wernick's statements were final and that they had
been fired.
Finally, although, as the Administrative Law
Judge points out, it is not controlling or binding on
the Board that the Minnesota Department of Em-
ployment Service (MDES) found the design con-
sultants were discharged, I believe that finding is
significant here. In commenting on the MDES de-
cision the Administrative Law Judge notes that
Wernick's letters to MDES are consistent with his
testimony. That is not quite true, however. Wer-
nick's letter to MDES states:
I then told her that her unauthorized leaving
of the company, for reasons unknown to
myself . . . could not be tolerated, that their
appointments would have to be served, and
that leaving a job without cause or notice and
without a commitment to return to work was
equivalent to quitting, and that, effective im-
mediately, we would be looking for people to
replace them.
In conclusion, under Block's discredited version
it is clear the design consultants were discharged;
however, accepting the Administrative Law
Judge's credibility findings, I would also find that
the design consultants reasonably believed they had
been discharged. The credited findings are not so
different when carefully considered; I do not think
they warrant a different conclusion. Either way it
seems clear Wernick told the design consultants
they were being replaced-that's termination.
I would therefore find the design consultants, in-
cluding Block for the reasons hereafter stated,
were discharged for engaging in protected concert-
ed activity in violation of Section 8(a)(l) of the Act
and are entitled to reinstatement and backpay.
The remaining issue is Block's supervisory status.
The complaint alleged that Block, a supervisor,
was discharged to discourage concerted activities
among Respondent's employees in general. In this
connection the General Counsel points out that the
Board has found that in circumstances where
action directed against a supervisor has the effect
of interfering with, restraining, or coercing em-
ployees in the exercise of their Section 7 rights
such action violates Section 8(a)(1). 4 I agree with
the General Counsel and would find that Block's
discharge also violated Section 8(a)(1) because it
was motivated by her participation in the employ-
ees' concerted efforts to resolve their grievances.
The Administrative Law Judge, in view of his
disposition of the case, found it unnecessary to de-
termine whether Block, as a supervisor, would
have been accorded protection under the Act. But
he did find that in the circumstances of this case
Respondent should not be charged with the repre-
sentations of Wernick to the others because her in-
terests were clearly aligned with the employees as
their designated spokesman. He also noted that the
complaint did not allege that the acts and conduct
of Block are binding on Respondent. Likewise,
Wernick's statement to MDES indicates Respond-
ent considered Block not as an insubordinate super-
visor but as a participant in the activities of the
design consultants, for throughout his statement he
treats her as part of the group and then says,
"Though given a title of supervisor of three others,
her basic job had changed very little."
Wernick when asked if he regarded Block as dif-
ferent in any way from the other three design con-
4 See General Nutrition Center, Inc.. 221 NLRB 850 (1975).
PINK SUPPLY CORPORATION 677
sultants replied, "Only as a spokesman for the
other employees." In short, Respondent refused to
meet with the individuals as a group and dis-
charged them as a group. By failing to distinguish
between the supervisor and the rank-and-file em-
ployees or communicate that distinction to the em-
ployees Respondent not only led the employees to
believe they would be disciplined for engaging in
conduct similar to that of Supervisor Block but in
fact discharged them for engaging in that conduct.
As a result it is clear that Respondent's discharge
of Block was motivated by a desire to discourage
protected concerted activity among its employees
in general. I would therefore find that the dis-
charge of Supervisor Block also violated Section
8(a)(1) of the Act.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard before me at Minneapolis, Minnesota, on Jan-
uary 24, 1979. The underlying charges were filed on Oc-
tober 10, 1978, culminating in a complaint and notice of
hearing which issued on November 15, 1978, alleging
that on or about June 22, 1978, Pink Supply Corporation
(herein Respondent) discharged employees Mary Riffe,
Nancy Lilledahl, and Marlene Egge, and Supervisor
Kathy Block' for engaging in protected concerted activ-
ities thereby violating Section 8(a)(1) of the National
Labor Relations Act, as amended, herein called the Act.
More specifically it is contended that the protected con-
certed activities consisted of a -day work stoppage and
the alleged discriminatees' efforts to meet and discuss
collectively with Respondent certain of their work-relat-
ed grievances. Respondent filed an answer conceding,
inter alia, jurisdictional facts but denying all allegations
that it committed any unfair labor practices. Respondent
also denied discharging the alleged discriminatees and as-
serted affirmatively, inter alia, that said alleged discrimin-
atees had never given any indication that they aban-
doned the strike.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the able
briefs filed by counsel for the General Counsel and Re-
spondent, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Pink Supply Corporation, a Minneso-
ta corporation, is engaged in the sale and distribution of
carpeting, office furniture, textiles, and related products.
At all times material herein, Respondent has maintained
an office and place of business in Edina, Minnesota,
herein called Respondent's facility. During the calendar
year 1977, which period is representative of its oper-
ations at all times material herein, Respondent in connec-
The names of the individuals appear as amended at the hearing.
tion with its business operations derived gross revenues
in excess of $500,000. During the same time-frame Re-
spondent sold and distributed in connection with its
Edina facility products valued in excess of $50,000 di-
rectly to points outside the State of Minnesota. Further,
during the same time-frame, Respondent purchased
goods and materials valued in excess of $50,000 which
goods and materials were transported to its Edina facility
from points directly outside the State of Minnesota. Re-
spondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR ABOR PRACTICEIS
A. Setting
Respondent maintains three operating divisions, one in
office furniture, a second in textiles, and a third in car-
peting which is the division involved herein. On June 21,
1978,2 Kathy Block, the head design consultants in the
carpet department, conducted a meeting after normal
working hours, attended by Marlene Egge, Nancy Lille-
dahl, and Mary Riffe, three subordinate design consul-
tants, to discuss low pay and other work-related griev-
ances. It was decided that each of them would call Re-
spondent's facility on Thursday, the following day, to
advise that they would not be in to work and Block was
designated as the spokesperson to request of General
Manager John Spahn and his immediate superior, Vice
President Robert Wernick, that they meet with the
design consultants as a group on Friday, June 23, to dis-
cuss their grievances.
Block testified that on Thursday morning, at or about
9 o'clock, she called at Respondent's facility and left
word with the receptionist that she would not be at
work that day. According to Block, the receptionist ad-
vised that some of the other employees had already
called and she knew what was going on. General Man-
ager Spahn phoned Block at her home about 9:30 a.m.
and asked what was happening. Block explained that
there were some serious problems without specifying any
of them and requested that he and Wernick meet with
her and the other design consultants as a group the fol-
lowing morning at 8 o'clock to discuss their grievances.
She also advised that she was the designated spokesper-
son for the group.
Wernick did not appear at Respondent's facility until
some time later and, after he and Spahn discussed the
matter, Spahn called Block and assertedly advised her
that he and Wernick would meet with the design consul-
tants as a group to discuss their grievances the following
morning. According to Spahn with corroboration from
Wernick it is the Company's policy not to negotiate with
employees as a group unless management has some prior
notice concerning the nature of the grievance although
employees may discuss individual grievances with man-
agement at any time even without such prior notice.
2 All dates hereinafter refer to 1978 unless otherwise indicated
I The parties stipulated and I find that Kathy Block responsibly directs
employees and is a supervisor within the meaning of Sec 2(11) of the
Act
PINK S PPLY C RPORAT ON 6_
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Block, Wernick called her at home
around I p.m. and refused to meet with her and the
other consultants on their terms as a group because he
was concerned that other employees might band togeth-
er and demand to negotiate with management on a
groupwide basis. Block testified that near the end of the
conversation Wernick told her that if the employees
came in to work that day he would be willing to discuss
their grievances with them individually. Block responded
by renewing her request to meet on a group basis al-
though she assertedly told Wernick that she would con-
tact the other design consultants and get back to him as
to whether they would accede to his demand to meet
with him individually.
Egge and Lilledahl met at Block's home to discuss
Wernick's request that they return to work and discuss
their grievances with him individually and they asserted-
ly agreed to this course of action. Riffe, the other design
consultant, was not feeling well and stayed home but as-
sertedly went along with the group's decision.
Block with corroboration from Egge and Lilledahl tes-
tified that at approximately 4 p.m. she called Wernick
and told him that the design consultants agreed to meet
with him individually to discuss their problems. Block
asserted that Wernick replied, "Quite frankly I don't care
to have any of you back." He also told her that he had
contacted the University of Minnesota and Vo-Tech, an
employment agency, for replacements, adding that their
"positions will be filled." Block asked Wernick if she and
the other design consultants were fired because they
were not quitting to which Wernick assertedly respond-
ed, "[A]s far as I'm concerned you quit when you
walked out the door." Block then asked him whether he
wanted to talk to the other girls and he in turn stated,
"lI'd never refuse to talk to the other girls." Block, how-
ever, determined "at that point [we] had nothing further
to discuss and declared that "[they] would be in tomor-
row to clean up [their] desks."
Wernick's account of his several phone conversations
with Block on June 22 is substantially at variance with
the latter's account as set forth above. Wernick, for ex-
ample, denied that he ever rescinded his offer to meet
with the design consultants individually to discuss their
grievances. Wernick asked Block about the nature of the
designers' problems and urged her to come back to work
that day and, as spokesperson for the other design con-
sultants, to get them to come back to work also. He
pointed out that by staying out the design consultants
were causing the Company "a great deal of inconve-
nience and hardship," as there was no one to service the
customers. According to Wernick, Block refused to
come to work that day or tell him over the phone what
the design consultants' problems were, but countered by
insisting that Wernick meet with the design consultants
as a group the following morning at 8 a.m. to discuss the
situation. Wernick testified that he asked whether they
(design consultants) would be in to work the following
morning or only to discuss their problems, to which
Block assertedly responded, "It would depend on how
the group meeting goes." According to Wernick, he told
Block that he could not depend on her and as the cus-
tomers had to be serviced he was "going to have to act
as though you [design consultants] were quitting and find
replacements." Block denied that she was quitting to
which Wernick asked, "Well, what do you call it? What
am I supposed to do?" Block assertedly did not respond.
The next day, Friday, June 23, each of the design con-
sultants drove to Respondent's facility separately where
at approximately 10 a.m. they met, and as a group they
entered Respondent's facility to clean their desks and
gather their belongings. Wernick assisted the group by
providing some boxes for their belongings and remarked
that he was sorry that it had to end this way. There was
no discussion with Wernick on June 23 about returning
to work nor was the matter discussed between the design
consultants and Respondent thereafter.
B. Discussions and Conclusions
Counsel for the General Counsel contends that the al-
leged discriminatees engaged in a -day work stoppage
in an effort to present certain work-related grievances to
Respondent and that said Respondent retaliated by dis-
charging them thereby violating Section 8(a)(l) of the
Act. Counsel for Respondent, on the other hand, while
conceding that the alleged discriminatees were economic
strikers, asserted that they had not given any indication
that they abandoned the strike and they were subse-
quently replaced. Further, counsel for Respondent assert-
ed that the alleged discriminatees never made application
for reinstatement and denied that they were discharged.
While it is undisputed that the strikers did not make
application for reinstatement, the Board no longer re-
quires that they do so in order to activate an employer's
remedial obligations.4 Thus this case turns on whether
the individuals involved herein were discharged on June
22 as alleged by the General Counsel and denied by Re-
spondent. In order to determine this issue, it is critical to
resolve Wernick's and Block's conflicting accounts of
their phone conversations on June 22.
It is undisputed that Wernick spoke with Block on
several occasions on June 22. It is also undisputed that
Wernick did not talk to any of the other alleged discri-
minatees on that critical date. While Egge and Lilledahl
supplied some corroboration for Block, because they
were in her apartment and present during Block's last
phone conversation with Wernick, such corroboration is
severely limited insofar as they could not hear Wernick
and had to rely exclusively on what Block related to
them. Further militating against the reliability of the tes-
timony corroborating Block is Egge's characterization of
the phone conversation as "quite vague." Thus it appears
that the allegations rest largely on whether I credit Wer-
nick or Block.
It is undisputed that Wernick never told Block that
she and the others involved herein were discharged. On
the other hand it is also undisputed that Block told Wer-
nick that she was not quitting. In these circumstances a
discussion of the substance and context of the conversa-
tions is in order.
According to Block, she called Wernick at 4 p.m., in
the presence of Egge and Lilledahl, and told him that
4 See 4bilities and Goodwill Inc., 241 NLRB 27 (1979).
PINK SUPPLY CORPORATION
the design consultants had agreed to come in and discuss
their problems with him individually to which he asser-
tedly replied, "Quite frankly I don't care to have any of
you back." Block testified that she then told Wernick
that she and the others were not quitting and Wernick
assertedly remarked, "[A]s far as I'm concerned you quit
when you walked out the door." Block told Wernick
that she and the others would be in the following day to
clean up their desks.
As noted previously, Wernick's version of the phone
conversation is significantly at odds with Block's ac-
count. According to Wernick he wanted and needed the
design consultants at work. Even by Block's account, as
late as I to 1:30 p.m., on June 22, Wernick was still
urging Block, and the others through her, as their
spokesperson, to return to work. In this regard Wernick
testified that he told Block that she and the others were,
inter alia, creating "great hardship" for the Company as
there was no one to service the many customers with ap-
pointments on June 22 and 23 to which she assertedly re-
plied that was his problem.
The testimony of Egge tends to support Wernick with
regard to the customer situation. Thus Egge testified that
the design consultants had a heavy caseload and they de-
cided not to report to work in part to demonstrate to
management "first hand" how "overloaded" they were.
Insofar as the testimony of Egge and Lilledahl corrobo-
rating Block, as previously noted, they did not listen in
on the phone and had to rely on what Block told them.
Their testimony is further suspect not only because of
self-interest but also because Egge testified that the con-
versation was "quite vague" and Lilledahl's testimony,
inter alia was inconsistent. Thus, Lilledahl first testified
that Block covered the receiver and told her and Egge
that Wernick did not want them back. Later Lilledahl
denied that Block covered the receiver but testified that
Block transmitted Wernick's remarks after the conversa-
tion. In these circumstances I do not credit Block's asser-
tion that Wernick told her that he did not want the
design consultants back to work.
It is undisputed that Wernick told Block that he was
looking for replacements and in this regard had contact-
ed the University of Minnesota and Vo-Tech, an employ-
ment agency. However, it is also clear, as noted above,
that at least as late as 1 to 1:30 p.m. Wernick wanted the
designers back to work. In these circumstances I find it
highly implausible and do not credit Block's testimony
that Wernick told her that as far as he was concerned
she had quit when she walked out the door.5
The record also discloses that Wernick told Block that
he wanted to talk with the others but they refused to get
on the phone and talk to him. Wernick credibly testified
with corroboration from Spahn that Respondent's prac-
I also credit Wernick as well as Spahn over Block in all other areas
where their testimony conflicts Overall, I was not impressed with Block
as a witness, finding her in critical areas to be unresponsive and indefi-
nite. At one point she volunteered that it was difficult for her to "think
straight." With regard to Wernick it is also noted that he was uncertain
as to precisely what was said Im each of the phone cornverations n June
22 although he could recall what he and Block stated Ito each other oxer
the course of the entire day I find that Wernick's demelanor as such
that he related facts as best as he could recall. given the time lag and
numerous other inlers ening esvets
tice is not to meet with employees as a group to discuss
work-related problems unless first given notice revealing
the nature of the problems. Block refused to disclose the
nature of the grievances on June 22. This tends to give
weight to Respondent's position that the employees
never retreated from its original position that Block was
their spokesperson and they would only deal with him
on a groupwide basis and only on their terms. Further it
tends to support Wernick's assertion that he never dis-
charged the individuals herein but rather pressed for
their return to work. Thus, when Wernick was unable to
persuade Block to come back, he then asked to talk to
the others. In these circumstances it would appear incon-
gruous to accept the General Counsel's position that
Wernick had already discharged them when all signs in-
dicate that he wanted to talk to the other design consul-
tants to urge them to come back to work.
As stated in The C. J. Krehbiel Company" cited by
General Counsel, "The test of whether an employee quit
or was discharged is whether the statements and action
of the employer at the time of the termination would
reasonably lead him to believe that he had been dis-
charged."
Applying the foregoing test to the instant case General
Counsel contends that, on the basis of Wernick's overall
comments, Block could reasonably conclude that she
was in fact discharged and further when she, an admitted
supervisor, transmitted said comments to the others, they
too could reasonably conclude that they were dis-
charged. He relies largely on Block's testimony that
Wernick told her that he did not want them back and
they should clean out their desks. For reasons stated pre-
viously, I have rejected Block's testimony ascribing to
Wernick that he did not want the individuals involved
herein back at work. With regard to the design consul-
tants cleaning out their desks it is noted that Block vol-
unteered and was not directed to come in the following
day to clean up.
Wernick credibly testified that he asked Block on
behalf of herself and the others to meet with him individ-
ually. While Wernick admitted that he later told Block
that he would have to act as though she quit, in context
it appears that the customers had to be serviced and he
would have to find replacements and told as much to
Block. In the totality of the circumstances herein I do
not find that the term "quit" as used by Wernick is tanta-
mount to "discharge." 7 Further, in the circumstances of
this case I do not find that Respondent should be
charged with the representations of Wernick to the
others, albeit an admitted supervisor, as her interests
were clearly aligned with the employees' as their desig-
6 227 NLRB 383. 384 (1976), citing VIN . R B v llron .,IobtI tlhmi.
387 F 2d 7 (8th Cir 1967).
I do not deem the findings by the Minnesot; Department of Employ-
metl Services (MDES). that the alleged discriminatees were discharged,
decisive to the issues herein While Wernick submilted a letter to MItFS
setlling florth his accoullnrt f what transpired on June 22. it is, mIl acl r
what considerations ere involved in MDFS' firdings In arly cxr
Weriick 's letters are consistent ith his testimonl herein (See ( C
Exhs. 2(a) 3(1), 4(a). and 5(a)) Further. AWernick credlihN testified witLh
out coiltradiction that the Compan)'s \ hb kkeeping records contilne li 1
carry the lames of lie alleged discrinminatee, wherea, the nalimes if it
charged crilplyeres are customariI deleted ronl said rcorlrds
679
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated spokesperson and not as agent for Respondent.
Moreover, it noted that the complaint does not allege
that the acts and conduct of Block are binding on Re-
spondent on an agency basis. While this case is not free
of ambiguity, it is noted that the alleged discriminatees
passed up an opportunity to learn of Wernick's intentions
directly when they refused to talk to him on the phone
or even question him the following day as to whether
they were discharged. These individuals had the right
under the Act to continue to act concertedly but by
electing to do so it does not follow that a negative infer-
ence should be drawn against Respondent vis-a-vis his in-
tentions.
In view of the foregoing and under all the circum-
stances I find that the credible evidence is insufficient to
establish that Respondent discharged the individuals in-
volved herein and further that they had no reasonable
basis for concluding that they were discharged.8 Ac-
In these circumstances, I find it unnecessary to determine whether
Kathy Block, an admitted supervisor, would have been accorded protec-
tion under the Act otherwise.
cordingly, I shall recommend that the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Pink Supply Corporation, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The General Counsel has not proved by a prepon-
derance of the credible evidence that Respondent has
violated Section 8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in these proceedings,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 9
The complaint is hereby dismissed in its entirety.
9 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 find-
ings, 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 he deemed waived for all purposes.