Polytech, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1972

195 N.L.R.B. 695 (N.L.R.B. 1972)

POLYTECH, INCORPORATED 695
Polytech , Incorporated and Ronald Lawrence. Case
14-CA-6213
March 2, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 22, 1971, Trial Examiner Melvin Pol-
lack issued the attached Decision in this proceeding.
Thereafter, General Counsel filed exceptions and a sup-
porting brief.
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 Trial
Examiner's Decision in light of the exceptions and brief
and finds merit in the General Counsel's exceptions.
The Board has therefore decided to affirm the Trial
Examiner's rulings, findings, and conclusions only to
the extent that they are consistent with its Decision
below.
The issue in this case is whether the five employees
in the casting department who concertedly decided not
to work overtime after 4 p.m. on April 5, 1971, were
engaged in a protected concerted activity. The Trial
Examiner found, in agreement with the Respondent,
that their conduct was not protected and that their
suspension for engaging in such conduct was therefore
not violative of Section 8(a)(1) of the Act as alleged. We
disagree for reasons set forth below.
Facts
As found by the Trial Examiner, the employee walk-
out of April 5 and the Respondent's disciplining of the
employees involved occurred in the following circum-
stances:
Respondent is engaged in the manufacture of trans-
parent plastic sheets. The regularly assigned casting
department's complement consisted of six employees as
of April 5, 1971,'all of whom were told when they were
hired that they were expected to do overtime work
when called upon to do so.2 The employees had not
refused, prior to April 5, to perform overtime work
they were told or expected to do. None of Respondent's
employees are represented by a union.
Unless otherwise noted, all dates here described are in the year 1971.
Employees were advised they would have to work overtime on a day-to-
day basis depending on the work orders Respondent had to meet The
overtime work included work on Saturdays, cleanup work scheduled at the
end of the day, and work after the normal hours of a working day whenever
it was necessary to complete the customer orders posted on the morning of
that day.
During the several weeks preceding April 5, the em-
ployees in the casting department were expected to do
increasing amounts of overtime work. They considered
these overtime assignments to be both excessive and
unduly burdensome inasmuch as the lifting of the glass
molds used in the department was very heavy work,
requiring two to four men for each mold; there was a
shortage of personnel from time to time; and there was
a lack of adequate ventilation.
On April 5, the department was short one ex-
perienced employee3 and it became evident to the other
employees that in order to complete the orders posted
by Respondent for that day's completion, it would
again be necessary for them to work overtime. The
absence of one of the regularly scheduled employees
was particularly felt that day because the customer
work orders posted that morning required the handling
of more of the heavy molds than usual. At 2 p.m., the
five employees met and decided they would not work
overtime that evening. At or about 3:45 p.m. employee
Kevin Meyer shut off his machine and the other four
employees also began to make preparations to close
down their work at the normal 4 p.m. quitting time.
Mrs. Joyce McGowan, the Respondent's vice presi-
dent, observed what was happening. She first ap-
proached employee Kevin Meyer and 'questioned him
as to why the machines were being shut down. Meyer
replied that the menu were not going to work that night
because they were all tired. Mrs. McGowan then ques-
tioned the other four male employees individually as to
whether they intended to work that night. Each replied
that he did not. Mrs. McGowan then'asked the men to
run the machines until the scheduled quitting time, and
to this they agreed. Shortly thereafter she returned with
her husband, Respondent's president, and again asked
each employee individually' whether he intended to
work overtime that, night. She received a negative re-
sponse. Mrs. McGowan then notified each employee
that there would be no work for him for the next 2 days.
The five employees left the plant at 4., They returned to
work on April 8, after their 2-day suspension. They had
not and have not refused to work overtime on any other
occasion.4
J Because of the absence of one of the employees, Respondent assigned
Donald Iler, an employee regularly working in the mixing department to
help out He, also, was expected to do overtime.
There was, in addition, a sixth employee in the department who was a
female and who was not expected to do heavy lifting. She was not involved
in the walkout and was not, in fact, invited by the men to attend the meeting
held in the plant to discuss the walkout.
' Iler, one of the five, testified that at the meeting the men intended not
to work overtime only for the evening of April 5 and did not discuss or plan
to refuse to work overtime in the future
195 NLRB No. 126
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Conclusions The holding in Swift, that the concerted refusal to
In determining whether or not the above-described
work stoppage was a protected concerted activity, we
are guided, in the main, by the decision of the Supreme
Court in N.L.R.B. v. Washington Aluminum Co., 370
U.S. 9. That decision held that when a group of un-
represented employees spontaneously ceased work
after reporting to their jobs because of unsatisfactory
condition in the plant, their concerted action was enti-
tled to the Act's protection-and this even though the
stoppage occurred without any advance notice to the
employer and there had been no prior demand for a
change in the prevailing working conditions.
In a case arising5 subsequently, the Board held, with
court approval, that a previously unannounced con-
certed refusal by a group of unrepresented employees
to work overtime-one prompted by dissatisfaction
with the employer's overtime policies-was a presump-
tively protected concerted activity. The Board and the
court6 made it clear that the stoppage did not lose its
protected status because it was limited in duration to
the overtime hours or was unaccompanied by any
affirmative indication as to what the employees in-
tended to do in the' future if the employer continued to
maintain the existing overtime policies.
The foregoing cases did not, of course, overrule the
earlier decided Swift case, referred to by the Trial Ex-
aminer, and the precedents on which that case rested.
John S. Swift Company, 124 NLRB 394, 396, enfd. 277
F.2d 641 (C.A. 7). As noted by the Trial Examiner, the
Board, in Swift, held unprotected a concerted refusal
by employees to work overtime even though the em-
ployees had not previously engaged in such conduct.
However, the walkout occurred during bargaining
negotiations and the employees had previously in-
dicated to their employer that they would use the tactic
of refusing to work overtime as a means of forcing the
employer's concessions in bargaining; upon their use of
bargaining tactic, their employer notified each of them
that he could not remain employed unless he expressed
a willingness to comply with the employer's orders in
the future; and the employees refused to furnish the
requested assurances. As was noted in the Omaha case,
supra, what distinguished the Swift case and others
similarly holding from the situation subsequently pre-
sented in Omaha, was that the employees' refusal to
work the overtime hours was significant only insofar as
it affirmed the employees' previously announced inten-
tion to embark on an intermittent or recurring strike as
a bargaining tactic.
5 First National Bank of Omaha, 171 NLRB No 152, enfd 413 F.2d 921
(C.A 8)
6 First National Bank of Omaha, supra.
work overtime was unprotected , reasons that when em-
ployees engage in repeated work stoppages limited to a
portion of the working day, they are plainly unwilling
to assume the status of strikers-a status contemplat-
ing a risk of replacement and a loss of pay. The princi-
ple of these cases is that employees cannot properly
seek to maintain the benefits of remaining in a paid
employee status while refusing , nonetheless , to perform
all of the work they were hired to do.
The Trial Examiner found that this case was gov-
erned by Swift. We do not agree . In his view , the failure
of the men to explicate to Respondent what conditions
they deemed unsatisfactory beyond mentioning the
excessive overtime work and their saying they were
"tired" and did not want to work that night , demon-
strated their future intention to engage in similar unan-
nounced walkouts at the end of their working day
whenever they felt they had been working too much
overtime, The Trial Examiner inferred, accordingly,
that the men 's future intentions were to engage in
recurrent partial work stoppages . We find this infer-
ence to be overdrawn . The fact, at best , provides no
conclusive evidence one way or the other as to what the
men would do in the future absent any change in the
conditions which prompted their walkout . In this re-
spect, the factual context of this case is not dissimilar
to that of the Washington Aluminum and Omaha
cases , supra: and in our view, these cases , rather than
Swift, govern the instant case. Here , as in those cases,
the question of whether a work stoppage of limited
duration represented the employees' exercise of their
protected right to strike is before us in a record barren
of any evidence of previous engagements by the em-
ployees in any work stoppages . Here, as in those cases,
the employees are unrepresented and do not have the
benefit of structured procedures to protest undesirable
and fatiguing working conditions . Here, as there, their
engagement in a work stoppage was not preceded by
any specific demands upon their Employer for a change
in working conditions ; and their decision to walk out
was made for that single day and included no discus-
sion of future plans.
This analysis of the Washington Aluminum and
Omaha cases demonstrated the existence of a presump-
tion that a single concerted refusal to work overtime is
a protected strike activity ; and that such presumption
should be deemed rebutted when and only when the
evidence demonstrates that the stoppage is part of a
plan or pattern of intermittent action which is incon-
sistent with a genuine strike or genuine performance by
employees of the work normally expected of them by
the employer . We find insufficient such evidence in this
case and therefore find that the presumption has not
been effectively rebutted. We thus conclude that Re-
POLYTECH, INCORPORATED 697
spondent's disciplinary suspension of the employees
was conduct violative of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(1) of the Act, by suspending employees Donald
her, Ronald Lawrence, Kevin Meyer, Terry Breck, and
Donald Hatcher because they engaged in protected ac-
tivities, we shall order that Respondent make these
employees whole for any loss of earnings they may have
suffered as a result of the unlawful action against them,
by payment to them of a sum of money equal to what
each of them would normally have earned as wages
from the date of his suspension to the date Respondent
reemployed him, less net earning during such period
with backpay and interest thereon to be computed in
manner prescribed in F W. Woolworth Company, 90
NLRB 289, and Isis Plumbing and Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. Polytech, Incorprated is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By suspending Donald her, Ronald Lawrence,
Kevin Meyer, Terry Breck, and Donald Hatcher for 2
days because they had engaged in protected activities,
Respondent has interfered with , restrained , or coerced
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, and is thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Polytech,
Incorporated, Overland, Missouri, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing em-
ployees by suspending or in any other manner dis-
criminating against employees for striking or engaging
otherwise in concerted protected activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Donald her, Ronald Lawrence, Ke-
vin Meyer, Terry Breck, and Donald Hatcher for any
loss of earnings each of them may have suffered by
reason of the unlawful action against him in the manner
set forth in the section in this Decision entitled
"Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its premises at Overland, Missouri, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 14, after being duly signed by Respond-
ent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
' 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 be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees by suspending or discriminating
against them in any other manner, for striking or
for engaging in otherwise concerted, protected ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section
7 of the National Labor Relations Act, as
amended.
WE WILL make Donald Iler, Ronald Lawrence,
Kevin Meyer, Terry Breck, and Ronald Hatcher
whole for any loss of earnings they have suffered.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
POLYTECH,
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice.or compliance
with its provisions may be directed to the Board's
Office, Room 448, 210 North 12th Boulevard, St.
Louis, Missouri 63101, Telephone 622-4142.
TRIAL EXAMINER'S DECISIONS
STATEMENT OF THE CASE
MELVIN POLLACK: This case was heard on August 23 and
25 and September 31, 1971, pursuant to charges filed on April
26 and May 26, 1971, and a complaint issued on June 24,
1971. The issue presented is whether Respondent violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, by suspending five employees for 2 days because
they engaged in a concerted refusal to work overtime. The
General Counsel and the Respondent filed briefs after the
close of the hearing.
Upon the entire record, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent , a Missouri corporation, manufactures trans-
parent plastic sheets and related products at its plant in Over-
land, Missouri . Its annual interstate sales exceed $50,000. I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent employs 12 to 15 employees divided into fabri-
cation and casting departments. Respondent schedules the
casting of 73 transparent plastic sheets each working day. The
casting is usually completed within the regular working day
but sometimes requires overtime of an hour or so for comple-
tion of the scheduled 73 sheets. Production is also occasion-
ally scheduled for a Saturday to gain a workday. Cleanup
work is also' regularly scheduled as overtime work.
The casting work requires the lifting of heavy molds and
is performed under hot and uncomfortable conditions. The
casting employees worked 7 hours on Saturday, March 13,
1971,1 and 8 hours on Saturday, March 20. They also worked
overtime 2 or 3 days in each of the following 2 weeks. Presi-
dent Terence McGowan told the employees toward the end
of March that he expected them to cast the scheduled 73
plastic sheets each day.
Respondent employed 7 casting employees, including one
woman, on April 5.1 One employee, Phil Cronin, was absent
All dates hereafter are in 1971 unless otherwise stated
Rosilee Engler at times helped carry glass sheets used to form molds but
did not perform "heavy" work
that day. Another employee, Terry Breck, was inexperienced.
Production fell behind schedule and it was apparent that
there would be overtime that night. After the morning
"break," Donald Iler told leadman Ronald Lawrence that he
was not going to work that night.' Lawrence said that
"sounded fine" to him. At lunch, Lawrence and Iler spoke to
Kevin-Meyer, Donald Hatcher, and Terry Breck about not
working that night. The five men agreed at the 2 o'clock break
that they would not work that night.
The normal quitting hour is 4 p.m. At 3:40 p.m. Meyer
started to close down the glass washer and the other men
worked to complete the work in process. Vice President Joyce
McGowan entered the casting room about,this time and
asked Meyer why he was shutting down the glass washer,
saying, "We are not done yet, we have more to come." Meyer
answered that the men were tired of staying late "almost
every night," that they were tired that day and had decided
not to work that night. Mrs. McGowan told Meyer to run the
washer until 4 o'clock. Meyer turned the washer back ,on and
Mrs. McGowan walked out. She returned a few minutes later
with Mr. McGowan. She asked the men if they were going
to work that night. As each man answered " no," she said,
"Well, we don't have any work for you, then, for the next two
days." She asked the men what they were trying to prove.
They replied they were not trying to prove anything, that they
were tired that day and did not want to work. The men left
the plant at 4 o'clock and returned to work on April 8.1
B. Analysis and Conclusions
The General Counsel views the walkout on April 5 as a
"single strike of limited duration" in protest against working
conditions and the assignment of what the men considered
excessive overtime. The Respondent contends that the men
"were attempting to dictate their own terms and conditions
of employment." The General Counsel relies principally on
First National Bank of Omaha, 171 NLRB No. 152, affd. 413
F.2d 921 (C.A. 8), and the Respondent relies principally on
John S. Swift Company, 124 NLRB 394, affd. 277 F.2d 641
(C.A. 7).5 In the Omaha case, employees protested against
overtime work but failed to get adequate assurances that the
bank would take action to reduce or eliminate overtime. Five
employees walked out at, the end of the regular day to protest
overtime work. They were discharged when they sought to
return to work the next day. The Board found that nothing
happened which could lead officials of the bank "reasonably
to believe that continuous walkouts might be expected." In
light of this finding, and the bank's failure to ascertain the
intention of the employees on the working of overtime in the
future, the Board further found that the employees "had not
engaged in a partial, intermittent or recurrent strike such as
would deprive their concerted action of the protection offered
by Section 7' of the Act."6
Lawrence is paid 10-15 cents an hour more than the other employees.
He is engaged in production work substantially the entire day. He directs
the other employees in their work but this work is essentially routine He
trains new employees and may be asked about the employees' work per-
formance, but it does not appear that he initiates personnel action. I find that
Lawrence is not a supervisor under the Act
Iler left Respondent's employ that day.
The precedent cases on employees who concertedly refuse to work the
schedule imposed by their employer are analyzed in the Omaha case.
The Eighth Circuit Court of Appeals sustained the Board on the ground
that the employees had given the bank no reason to expect continuous
walkouts. It noted, however, that the burden of proving the walkout pro-
tected rested with the General Counsel was not shifted by the failure of the
bank to inquire regarding the strikers' intentions for the future.
POLYTECH, INCORPORATED 699
In Swift, employees informed their employer during a dis-
pute over contract negotiations that they would not work
overtime until the dispute was resolved.- They were dis-
charged 2 weeks later when they refused to work overtime.
The Board upheld the dismissals, holding that the employees'
refusal to work overtime constituted an attempt to work on
terms of their own choosing.
I consider the present case governed by Swift rather than
Omaha Meyers told Mrs. McGowan on April 5 that the men
had been working overtime "almost every night" and were
not going to work overtime that night because they were
"tired." Mrs. McGowan's response was to the effect that they
would be suspended for 2 days if they walked out without
completing the scheduled work. She asked the men what they
were trying to "prove" by the walkout. The men reiterated
that they were tired.
The work on April 5 was not markedly out of the ordinary.
The employees completed the casting of heavy "cells" during
regular hours and had comparatively light work to perform
during the overtime period. Meyers' statement that the men
would not work overtime that night because they had been
working almost every night and were "tired," thus put Re-
spondent on notice that the mem might walk out again if they
felt that they had - been working too much overtime. The
2-day suspension was reasonably calculated to show that Re-
spondent would not tolerate such conduct and was not such
as to discourage the men from a legitimate protest against
overtime work. In fact, Mrs. McGowan invited the men to
tell her what the walkout was all about.' I find from their
refusal to do so, and ,their insistence that they were "tired,"
that they evinced an intention to walk out whenever-they felt
they had been working too much overtime. The walkout,
accordingly, constituted an attempt by the employees to work
overtime on their own terms rather than a limited strike in
protest against Respondent's overtime policy or other work-
ing conditions.
I conclude that Respondent did not violate Section 8(a)(1)
of the Act by suspending the casting employees for walking
out on April 5 before they had completed the work scheduled
that day. I shall therefore recommend that the complaint be
dismissed.
Upon the basis of the foregoing findings of fact, I make the
following:
CONCLUSIONS OF LAW
1. Polytech, Incorporated, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The aforesaid employer had not engaged in any unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed.
' While the record shows that the men complained among themselves
about defective equipment and shortage of personnel-conditions which led
to overtime work-it does not appear that they ever took collective action
to apprise the McGowans of their complaints.