Quietflex Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1055 (N.L.R.B. 2005)

QUIETFLEX MFG. CO.
344 NLRB No. 130
1055
Quietflex Manufacturing Co., L.P. and Sheet Metal
Workers Local Union No. 54, AFL–CIO a/w
Sheet Metal Workers International Association,
AFL–CIO. Case 16–CA–20257
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 16, 2000, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in response to the
exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions for the reasons set forth below.
The complaint alleged that the Respondent violated
Section 8(a)(1) of the Act by discharging 83 employees
for refusing to vacate its parking lot where those em-
ployees had engaged in a peaceful 12-hour work stop-
page to protest their terms and conditions of employ-
ment. The judge dismissed the complaint, finding that
the employees’ continued refusal to vacate the Respon-
dent’s premises, after they were told to return to work or
leave, served no protected employee interest and unduly
interfered with the Respondent’s use of its property.1 We
agree with the judge.
Facts
The Respondent manufactures ducts for the air-
conditioning industry at its facility in Houston, Texas.
Its employees, who are primarily of Hispanic or Viet-
namese origin, are not represented by a labor organiza-
tion. The Respondent does not have a formal grievance
procedure.
The relevant facts, as more fully set forth in the
judge’s decision, establish that 83 of the Respondent’s
employees gathered in the Respondent’s parking lot at 7
a.m. on January 10, 2000,2 to press their complaints to
management. These 83 employees included employees
from all three shifts of the duct department, as well as
some shipping department employees.3 The 83 His-

1 As stipulated to by the parties, and found by the judge, the 83 em-
ployees were discharged for refusing to vacate the Respondent’s prop-
erty, and not for refusing to return to work, which would have been
protected activity under Sec. 7. See, e.g., Molon Motor & Coil Corp.,
302 NLRB 138 (1991), enfd. 965 F.2d 523, 528 (7th Cir. 1992).
2 All dates are in 2000, unless otherwise indicated.
3 Some of the 83 employees may not have been scheduled to work
during the 12 hours. However, we need not resolve this factual issue,
because, as discussed below, the Respondent’s actions were prompted
by their continued presence on the property, not by a work stoppage.
panic-surnamed employees congregated because, among
other things, they were concerned that their Vietnamese
coworkers were being paid more and treated better by the
Respondent. The 83 employees sought from manage-
ment a pay raise, improved vacation and holiday pay,
and better working conditions.
At 7:15 a.m., the Respondent’s vice president, Pete
Crane, instructed the 83 employees to return to work.
They refused, and instead presented Crane with a letter
listing their demands. At 8:30 a.m., the Respondent’s
human resources manager, Steve Conaway, invited sev-
eral of the assembled employees to go inside and speak
to a manager. They declined, stating that they wanted to
communicate as a group.
At 11 a.m., the Respondent’s president, W. A. Dan
Daniel Jr., addressed the 83 employees. He told them
that he had reviewed their letter, and had already met one
of their demands by hiring someone to clean the lunch
and restrooms. Daniel also stated that while he was not
able to grant their requested wage increase, other issues
they had raised were open for discussion. In addition,
Daniel offered to meet with employees by shift to discuss
their demands. The employees refused. They also re-
fused Daniel’s offer to meet with delegates of the group.
Daniel concluded his comments by notifying the 83 em-
ployees that they must either return to work or leave the
premises. The employees responded that they would do
neither until all of their demands were met.
At 6:15 p.m., Daniel again spoke to the 83 employees
in the parking lot. He renewed his offer to meet with
delegates of the group, or with shifts of employees. His
offers were refused. The employees reiterated that they
would not leave the premises until all of their demands
were met. Daniel then read a written statement that cul-
minated in the announcement that employees had to
leave the Respondent’s premises by 7 p.m. or face dis-
charge. Daniel stated that the discharge would not be for
refusing to work, but for refusing to leave the property.
A Spanish-speaking supervisor then translated Daniel’s
statement to the employees. In the translated version, the
employees were told that they had to leave the premises
by 7 p.m. or the police would be called. They were not,
however, told that they would be discharged if they
failed to leave the property by 7 p.m.
The 83 employees remained in the parking lot, and the
Respondent summoned the police at 7 p.m. At 7:15
p.m., a sheriff’s deputy arrived and spoke with the em-
ployees, and all 83 promptly left.
When the 83 employees attempted to return to work on
January 13, they were told that they had been fired. The
Respondent subsequently learned that the employees
may have misunderstood its final January 10 instructions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1056
to leave or be fired. On January 21, President Daniel
sent a letter to each employee offering reinstatement,
under the same conditions of employment as they en-
joyed previously. All 83 employees returned to work on
January 24.
The Judge’s Decision
The judge found that the employees were acting in
concert for their mutual aid and protection and that they
had sought changes in wages, hours, and other terms and
conditions of employment. In short, the judge found that
the employees were engaged in protected concerted ac-
tivity under Section 7 of the Act. However, applying
Cambro Mfg. Co., 312 NLRB 634 (1993), and Waco,
Inc., 273 NLRB 746 (1984), and distinguishing Tri-
County Medical Center, 222 NLRB 1089 (1976), the
judge concluded that, while the employees here were
entitled to engage in their concerted protest on the Re-
spondent’s property for a reasonable period of time, their
continued refusal to leave the Respondent’s property
extended beyond this reasonable time. The judge further
found that the employees’ continued presence on the
Respondent’s property after 6:15 p.m., when they were
told for the second time to return to work or leave the
Respondent’s property, served no immediate protected
employee interest and unduly interfered with the Re-
spondent’s right to control the use of its own premises.
Cambro, supra, 312 NLRB at 636. Consequently, the
judge found that the employees’ concerted activity lost
the protection of the Act.
The judge emphasized that the Respondent discharged
the employees not because they had refused to return to
work, but rather because they had refused to leave its
premises after a reasonable period of time. He found
that, while the employees were entitled to persist in their
concerted activity, they had no right to continue to refuse
to leave the Respondent’s premises. Thus, he concluded
that the employees’ discharge did not interfere with
rights protected under Section 7 of the Act, and he rec-
ommended that the complaint be dismissed.
The General Counsel’s Exceptions
The General Counsel excepts to the dismissal of the
complaint, arguing that Waco and Cambro are not con-
trolling and that the judge erred by finding that the em-
ployees lost their protection under the Act following the
Respondent’s second request that they leave its premises.
The General Counsel distinguishes the facts in this case,
in which he argues that the outdoor work stoppage was
minimally invasive, from cases like Waco and Cambro,
where the work stoppage occurred inside the employer’s
facility, a situation that the General Counsel contends is
clearly more disruptive. The General Counsel asserts
that this case must be analyzed under Tri-County Medi-
cal Center, supra, in which the Board found that the em-
ployer acted unlawfully in preventing an off-duty em-
ployee from distributing union literature in an outside
area of its facility.
We find no merit in the General Counsel’s exception.
Therefore, we agree with the judge, for the reasons set
forth below, that the Respondent did not violate Section
8(a)(1) when it discharged 83 employees engaged in a
prolonged work stoppage on its property.
The Relevant Precedent
On-the-job work stoppages can be a form of economic
pressure protected under Section 7. See NLRB v. Wash-
ington Aluminum Co., 370 U.S. 9, 15 (1962). However,
not every such work stoppage is protected. Molon Motor
& Coil Co., 302 NLRB 138 (1991), enfd. 965 F.2d 523,
525 (7th Cir. 1992). “At some point, an employer is enti-
tled to exert its private property rights and demand its
premises back.” Cambro Mfg. Co., supra, 312 NLRB at
635. To determine at what point a lawful on-site work
stoppage loses its protection, a number of factors must be
considered, and the nature and strength of competing
employee and employer interests must be assessed.
Cambro Mfg., Ibid. As the Board stated in Waco, supra,
“the precise contours within which such [a work stop-
page] is protected cannot be defined by hard-and-fast
rules. Instead, each case requires that many relevant
factors be weighed.” 273 NLRB at 746. Further, “the
locus of [the] accommodation [between employer and
employee rights] . . . may fall at differing points along
the spectrum depending on the nature and strength of the
respective Section 7 rights and private property rights
asserted in any given context.” Hudgens v. NLRB, 424
U.S. 507, 522 (1976). The primary task of the Board is
to achieve that accommodation. Id.
Factors that the Board has considered in determining
which party’s rights should prevail in the context of an
on-site work stoppage include:
(1) the reason the employees have stopped work-
ing;4
(2) whether the work stoppage was peaceful;5
(3) whether the work stoppage interfered with
production, or deprived the employer access to its
property;6

4 For example, in NLRB v. Washington Aluminum Co., supra, the
employees’ work stoppage to protest the lack of heat during a harsh
winter was held protected.
5 See City Dodge Center, 289 NLRB 194 (1988), enfd. sub nom.
Roseville Dodge, Inc. v. NLRB,. 882 F.2d 1355, 1359 (8th Cir. 1989).
6 It is not considered an interference of production where the em-
ployees do no more than withhold their own services. Golay & Co.,
156 NLRB 1252, 1262 (1966), enfd. 371 F.2d 259, 262 (7th Cir. 1966),
QUIETFLEX MFG. CO. 1057
(4) whether employees had adequate opportunity
to present grievances to management;7
(5) whether employees were given any warning
that they must leave the premises or face discharge;8
(6) the duration of the work stoppage;9
(7) whether employees were represented or had
an established grievance procedure;10
(8) whether employees remained on the premises
beyond their shift;11
(9) whether the employees attempted to seize the
employer’s property;12and
(10) the reason for which the employees were ul-
timately discharged.13
Applying the foregoing factors, the Board in Waco,
supra, found that the employer did not violate Section
8(a)(1) by discharging employees who refused either to
begin work as scheduled or leave the employer’s prem-
ises. 273 NLRB at 746.
The Waco Board noted that the employees remained in
the lunchroom for at least 3-½ hours, after they had been
told (like the employees here) by their department man-

cert. denied 387 U.S. 944 (1967); see also City Dodge Center, supra
fn.5, 882 F.2d at 1358.
7 See Pepsi-Cola Bottling Co., 186 NLRB 477 (1970), enfd. 449
F.2d 824, 829–830 (5th Cir. 1979) (in agreeing with the Board that an
in-plant work stoppage was protected, the court noted that the employ-
ees had been denied the chance to communicate their grievances to
management); see also Golay & Co., supra fn.6.
8 See Golay & Co., supra fn.6.
9 Id. (1-½ to 2-hour work stoppage, during which time the employ-
ees were nondisruptive, and were waiting for a response to their de-
mands from management, was protected).
10 See Liberty Natural Products, 314 NLRB 630 (1991), enfd. 73
F.3d 369 (9th Cir. 1995) (Board found protected a work stoppage by
unrepresented employees working without an established grievance
mechanism); Advance Industrial. Division, 214 NLRB 518 (1974), enf.
denied in relevant part 540 F.2d 878, 885 (7th Cir. 1976) (Board found
activity protected, however, court found unlawful trespass where work-
ers ignored the employer’s ordinary grievance procedure and refused to
leave the premises after their shifts ended); see also Cone Mills Corp. v.
NLRB, 413 F.2d 445 (4th Cir. 1969); but see Pepsi-Cola Bottling Co.,
supra fn. 7; Serv-Air, Inc., 162 NLRB 1369 (1967), enfd. 401 F.2d 363
(10th Cir. 1968); Masonic and Eastern Star Home, 206 NLRB 789
(1973), enfd. 514 F.2d 894 (D.C. Cir. 1975); and City Dodge Center,
supra fn. 5 (lack of grievance procedure was a factor in finding em-
ployee work stoppage protected).
11 See Pepsi-Cola Bottling Co., supra fn. 7 (employees protected
where disruption was minimal and employees left at the end of their
shifts); compare Peck, Inc., 226 NLRB 1174 (1976) (unprotected activ-
ity when employees refused to leave lunchroom after their shifts
ended).
12 See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 252
(1939) (illegal trespass found where employees seized and retained
possession of the employer’s plant for several days).
13 See Molon Motor & Coil Co., 302 NLRB 138 (1991), enfd. 965
F.2d 523, 528 (7th Cir. 1992) (employees’ activity protected where
they were fired for refusing to return to work, rather than refusing to
leave the employer’s premises).
ager that he would not meet with all of them as a group
and that they must either return to work (in which case
the manager would meet with them individually) or
punch out and leave the employer’s premises. Acknowl-
edging that unrepresented employees, working without
an established grievance procedure, have the right under
the Act to engage in spontaneous concerted protests con-
cerning their working conditions, the Board nonetheless
found that, by the time the employees were discharged,
they had “overstepped the boundary of a protected, spon-
taneous work stoppage, and were occupying the facility
in a manner which was unprotected.” Id. The Board
further noted that the employer had not acted precipi-
tously, and that the employees had ample time to con-
sider the employer’s demand that they choose between
returning to work or continuing their work stoppage off
the employer’s premises. Further, the Board found that
the employees failed to “communicate the particulars of
their grievances so as to facilitate a discussion or possi-
ble resolution of their concerns.” Id. at 747.
Likewise, in Cambro, supra, the Board found that the
employer did not violate Section 8(a)(1) by discharging
employees who had refused either to return to work as
scheduled or leave the employer’s premises. The em-
ployees remained in the employee dining room or in the
adjacent working corridor separating the dining room
from the plant manager’s office, while continuing to de-
mand to speak to the plant manager or the employer’s
owner, neither of whom was present in the facility at that
time (about 2:30 through 6 a.m.). 312 NLRB at 634.
The Cambro majority found, contrary to the judge, that
while the employees had a Section 7 right to protest the
employer’s failure to consider seniority in selecting the
candidate for leadperson training, the on-site work stop-
page nevertheless reached a point at which it was no
longer a protected means of protest. The employer was
thereafter free to discharge the employees for failing to
obey its instructions either to return to work or to clock
out and leave the plant, without violating Section 8(a)(1).
Id. In the employees’ favor, the Board noted that the on-
site work stoppage was peaceful, that it focused on sev-
eral specific job-related complaints, and that it caused
little disruption of production. Under such circum-
stances, the employees were entitled to persist in their
on-site protest for “a reasonable period of time.” Id. at
636. However, the Board majority reasoned, the situa-
tion reached a point at which the employees’ failure to
either return to work or leave the premises resulted in
forfeiture of the Act’s protection. At that point, the em-
ployer was entitled to reclaim the use of its entire prem-
ises. Id. Further, the Board noted that the employees had
ample opportunity to present their grievances pursuant to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1058
the employer’s established grievance procedure. Accord-
ingly, further in-plant refusals to return to work “served
no immediate protected employee interests and unduly
interfered with the employer’s right to control use of its
premises.” Id.14
A different result was reached in City Dodge Center,
Inc., 289 NLRB 194 (1988), enfd. sub nom. Roseville
Dodge, Inc. v. NLRB, 882 F.2d 1355 (8th Cir. 1989). In
finding the work stoppage protected, the Board reasoned
that the 2- to 3-hour work stoppage was of limited dura-
tion, the employees’ reason for remaining on the prem-
ises was to present work-related complaints to the com-
pany president, the stoppage was peaceful, and the em-
ployees left peacefully after the company president told
them to return to work, leave the premises, or face termi-
nation. Id. at 194. The U.S. Court of Appeals for the
Eighth Circuit enforced the Board’s order, additionally
relying on the facts that the company had no established
grievance procedure and that there was no evidence that
the employees seized any portion of the employer’s
property, engaged in violent acts, damaged property, or
interfered with employees who were working. 882 F.2d
at 1358.
Likewise, in Pepsi-Cola Bottling Co. of Miami, Inc.,
186 NLRB 477 (1970), enfd. 449 F.2d 824 (5th Cir.
1979), the Board adopted the judge’s findings that the
employees’ in-plant work stoppage was protected. En-
forcing the Board’s order, the Fifth Circuit more explic-
itly discussed several factors on which it relied in finding
the activity protected. Specifically, the court found that
the employees did not threaten to carry the work stop-
page over into the next shift, did not hold the premises in
defiance of the owner’s right of possession, left immedi-
ately when asked to do so by police, did not interfere
with the work performance of nonstrikers, had no formal
grievance procedure in place, and did not engage in or
threaten violence. 449 F.2d at 829.

14 In Advance Industrial Division v. NLRB, 540 F.2d 878 (7th Cir.
1976), the Seventh Circuit reversed the Board and found that the em-
ployer lawfully discharged five employees who refused to vacate its
premises when protesting the early termination of their shift. Finding
that the employees concerted activity lost the Act’s protection, the court
noted that the employees presented no grievance to company represen-
tatives; and they refused to leave after the end of their shift when or-
dered to do so by management representatives and the police, thereby
preventing the employer from closing the plant for the night. The court
also noted that the employees had available an established grievance
procedure through which they could have presented their complaints.
Id. The court concluded that, considered in toto, the employees’ ac-
tions reflected “a complete lack of respect for their employer’s property
rights” which the court did “not believe Congress intended to counte-
nance.” Id. at 884.
Analysis and Conclusions
Applying the principles set forth above and applied in
Waco and Cambro, we agree with the judge that the Re-
spondent did not violate Section 8(a)(3) by discharging
the 83 protesting employees. Ultimately, those cases seek
to balance competing employer and employee rights,
focusing on the degree of impairment of the employees’
Section 7 rights if access is denied, compared to the de-
gree of impairment of the employer’s private property
rights if access is granted. Hudgens v. NLRB, 424 U.S.
507 (1976).
In striking an appropriate balance between the Re-
spondent’s and the employees’ competing interests, the
duty of the Board is to accommodate both rights “with as
little destruction of one as is consistent with the mainte-
nance of the other.” NLRB v. Babcock & Wilcox Co.,
251 U.S. 105, 112 (1956); Hudgens, supra, 424 U.S. at
520.
Contrary to our dissenting colleague, we find that the
Respondent had a tangible property interest in the areas
outside its facility. If the Respondent’s property interests
were as abstract and nominal as our dissenting colleague
suggests, there would be no counterbalance to the em-
ployees’ Section 7 rights. The appropriate balancing of
these legal rights under the authority of Babcock & Wil-
cox and Hudgens requires careful consideration of the
nature of these rights and their relative strength under the
facts presented.
In this case, certain factors applied by the Board weigh
in favor of the employees’ rights. The 83 employees at
all times engaged in a peaceful work stoppage. There is
no allegation or evidence that they blocked ingress or
egress to the Respondent’s facility, disrupted operations
at the loading dock, prevented other employees from
performing their duties, or sought to deprive the Respon-
dent of the use of its property. They were on the outside,
rather than the inside, of the Respondent’s facility. The
employees congregated together to present their work-
related complaints to the Respondent in a concerted fash-
ion. In addition, the employees were unrepresented and
did not have access to any formalized grievance proce-
dure.
We find, however, that the factors favoring the Re-
spondent’s property interests outweigh the above consid-
erations. The 12-hour work stoppage by employees, both
on- and off-duty, far exceeded the limited duration of
work stoppages found protected by the Board.15 Al-

15 See City Dodge Center, supra fn. 5 (stoppage protected where all
employees left the plant within 2 hours); Golay & Co. supra fn. 6 (pro-
tected stoppage lasted 1-½–2 hours); Liberty Natural Products, supra
fn.10 (protected stoppage lasted 15–30 minutes); Central Motors Corp.,
269 NLRB 209 (1984) (“shortlived” stoppage was found protected);
QUIETFLEX MFG. CO. 1059
though the work stoppage here occurred in the outside
area of the Respondent’s property rather than in the plant
itself, we find equally applicable the principle articulated
in Cambro that employees are entitled to persist in their
protest for a reasonable period of time, after which the
employer is entitled to assert its rights as to its entire
premises. See 312 NLRB at 636. We find that the 12-
hour duration of the employees’ action here was unrea-
sonable, particularly in view of the Respondent’s at-
tempts to respond to their concerns.
Further, although the Respondent did not have an es-
tablished grievance procedure, the Respondent provided
the employees multiple opportunities to present their
complaints to management. Vice President Crane ac-
cepted the letter detailing the employees’ demands, and
President Daniel offered to meet with representatives
from the group or with all of them by shift. The Respon-
dent also made a reasonable effort to respond to the is-
sues raised in the employees’ letter. Daniel immediately
agreed to correct one of the problems cited, and ex-
pressed his willingness to discuss others. However, the
employees made it clear that they would not leave the
premises until all of their demands were met, including a
wage increase that Daniel informed them the Respondent
could not grant at that time.
Further, the employees were not discharged for engag-
ing in protected activity on the Respondent’s premises.
Rather, they were discharged for their refusal to leave the
property after 12 hours of protest and notice of the Re-
spondent’s demand that they leave by 7 p.m.16
The facts of this case demonstrate that the employees
were afforded a sufficient opportunity to express their
complaints concerning their terms and conditions of em-
ployment. However, after many hours of protest, the
employees’ continued presence on the Respondent’s
property no longer served an immediate protected inter-
est, and the Respondent was entitled to assert its private
property right. See Cambro, supra, 312 NLRB at 636.
Response to Dissent
Our dissenting colleague accepts the premise that the
Respondent could lawfully have reclaimed its property at

Kenneth Trucks of Philadelphia, 229 NLRB 815 (1977), enfd. 580 F.2d
55 (3d Cir. 1978) (protected stoppage lasted one half hour); Benesight,
Inc., 337 NLRB 282 (2001) (“brief” work stoppage protected by Sec.
7); compare, Cambro, 312 NLRB 634 (1993) (approximately 4-hour
stoppage resulted in forfeiture of Act’s protection); Waco, Inc., 273
NLRB 746 (1976) (3-½ hour stoppage overstepped the boundary of a
protected, spontaneous work stoppage).
16 Due to a translation error, some employees believed that the Re-
spondent would call the police, rather than that it would discharge
them, if they did not leave by 7 p.m. Regardless of this error, the em-
ployees understood that the Respondent was demanding control of its
premises by the 7 p.m. deadline and failed to comply with that demand.
some point. Thus the employees’ right to engage in Sec-
tion 7 activity on the Respondent’s property diminished
over time. See Cambro Mfg., supra, 312 NLRB at 635.
Therefore, our disagreement with the dissent concerns
whether the property right predominated after twelve
hours. As noted, we find that it did.
Our colleague asserts that there is a difference between
the occupation of an employer’s property inside a facility
and its property outside the facility. Her point has some
merit. To be sure, “outside” activity is generally less
disruptive than “inside” activity. Nevertheless, we be-
lieve that an employer’s property right does not end at
the front door, and that distinction means little where, as
here, the employees were permitted to remain on the em-
ployer’s premises and engage in Section 7 activities for
12 hours.
Tri-County is distinguishable. In that case, the off-
duty employees involved were given no time to engage
in Section 7 activity on the employer’s property. In the
instant case, the employees were given a sufficient
amount of time to do so. Further, the off-duty employees
there sought access to organize their fellow employees.
By contrast, in the instant case, employees remained on
the property to pressure their employer to meet with
them, a demand that the Respondent was willing to meet,
albeit not on all of their terms.17
Our dissenting colleague also contends that the em-
ployees had the right to stay on the Respondent’s prop-
erty until they had the opportunity to communicate with
employees who had not yet arrived for work, a period of
24 hours. Our dissenting colleague’s contention is un-
dermined by the employees’ announced purpose in re-
maining on the property, which is a necessary considera-
tion in balancing the assertion of their Section 7 rights
with the Respondent's property rights. It was to com-
municate with their management, not their coworkers.
Contrary to the dissent, we find that the employees had
an adequate opportunity to achieve that goal during the
twelve hours that they remained on the premises. There-
fore, their continued presence after that period was un-
reasonable.
Finally, our colleague says that we have destroyed la-
bor law rights, and that she “fear[s] a continuing erosion
of the Section 7 rights of unorganized workers.” Such
strident language is incorrect and is not useful to the
resolution of difficult cases like the instant one. Consis-
tent with the Supreme Court’s direction in Hudgens, our
analysis here is a measured effort to balance the closely
competing interests involved, and our holding is confined

17 Under these circumstances, Chairman Battista and Member
Schaumber find it unnecessary to consider the validity of Tri-County.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1060
to the particular facts of this case. Our finding the proper
accommodation of the parties’ interests at a different
point along the continuum than does our dissenting col-
league in no way justifies her alarmist predictions.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
When the labor law rights of employees and the prop-
erty rights of employers are in conflict, the Board’s duty
is to make an “accommodation” of the two rights “‘with
as little destruction of one as is consistent with mainte-
nance of the other.’” Hudgens v. NLRB, 424 U.S. 507,
522 (1976), quoting NLRB v. Babcock & Wilcox Co., 351
U.S. 105, 112 (1956). There can be no question that
“[i]nconvenience or even some dislocation of property
rights, may be necessary in order to safeguard” Section 7
rights. Republic Aviation Corp. v. NLRB, 324 U.S. 793
U.S. 802 fn. 8 (1945).
This case involves a peaceful work stoppage, by em-
ployees, outside (not inside) the facility where they
worked. Access to the facility was not blocked, opera-
tions were not disrupted, and other employees were not
interfered with. The aim of the assembled employees,
who had no union and no access to a formal grievance
procedure, was to present work-related complaints to
their employer, not to deprive the employer of the use of
its property. Acknowledging all of these facts, the ma-
jority still concludes that the employer’s property rights
outweighed the employees’ statutory rights—to the ex-
tent that the employer was entitled to fire the workers,
after they refused to leave until directed to do so by a
sheriff’s deputy. That balance strikes me as destroying
concrete labor law rights to preserve an entirely abstract
property right, surely not the sort of careful accommoda-
tion that the Supreme Court had in mind.1
The majority’s holding turns on the conclusion that the
“12-hour duration of the employees’ action here was
unreasonable, particularly in view of the Respondent’s
attempts to respond to their concerns.” Because the
“employees’ continued presence on the Respondent’s
property no longer served an immediate protected inter-
est,” the majority reasons, the Respondent’s right to ex-
clude persons from its property must prevail. In other
words, the statutory rights of the employees diminished
over time—and, ultimately, disappeared, leaving nothing

1 We are not concerned here with access by nonemployees, such as
union organizers, whose Sec. 7 rights have been regarded as merely
derivative of the rights of employees. See Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992). See generally Cynthia L. Estlund, Labor, Property,
and Sovereignty after Lechmere, 46 Stanford L. Rev. 305 (1994) (criti-
cally discussing distinction).
in the scales to balance against the Respondent’s prop-
erty right. I disagree.
I will assume that, at some point, the Respondent
would have been entitled to reclaim its property. But
that point was not reached in this case, even after 12
hours, if proper weight is given to the nature and context
of the employees’ protest.
The employees obviously intended to act together as a
group, which is why they declined the Respondent’s in-
vitation to designate individual representatives. They
achieved their solidarity, and communicated it to each
other and to their employer, by assembling and by stay-
ing put. Their assembly “served an immediate protected
interest” (in the majority’s phrase) at the very least until
the employees had an opportunity to communicate and
join with all of the Respondent’s employees as they ar-
rived for work. And because the Respondent operated 24
hours a day in three 8-hour shifts, the assembly clearly
was protected until employees in all three shifts (not just
two) were presented with the opportunity to withhold
their labor and make common cause with the assembled
workers.
Such a tactic might seem extreme, not least in terms of
the endurance it demands of protesting workers. But
here workers presumably had serious grievances—
serious enough, at any rate, that they gathered outdoors
for 12 hours—and they had no union to represent them.
They were required to organize themselves. The Act is
intended to make that difficult goal possible. It is axio-
matic that freedom of communication is essential to the
exercise of employees’ Section 7 right to self-
organization. “Organization rights are not viable in a
vacuum; their effectiveness depends in some measure on
the ability of employees to learn the advantages and dis-
advantages of organization from others.” Central Hard-
ware v. NLRB, 407 U.S. 539, 543 (1972).
On this view, there certainly were substantial Section 7
rights in the balance. The Respondent’s countervailing
property right, in turn, was nominal, as the majority ef-
fectively concedes. The employees’ assembly, extended
as it was, did no real harm: no harm to access to the
property, no harm to the use of the property, and no harm
to the property interest per se (a 12-hour occupation
would not seem to create a claim to adverse possession).
Notably, the Respondent had no prior rule limiting em-
ployee access to the parking lot where employees assem-
bled.
None of the cases cited by the majority meaningfully
support its position. Decisions involving in-plant work
QUIETFLEX MFG. CO. 1061
stoppages, like Cambro and Waco,2 address a fundamen-
tally different situation: such work stoppages implicate
an employer’s ability to continue production and to direct
employees who are on the job. A parking lot assembly is
not a sit-down strike.3
Indeed, the Board’s cases recognize that, with respect
to access by off-duty employees, the outside areas of an
employer’s facility are distinct from inside areas. See,
e.g., Tri-County Medical Center, 222 NLRB 1089
(1976).4 Tri-County involved the distribution of union
literature, not an employee assembly. But the underlying
principle—that a denial of access to outside areas must
be justified by business reasons—does apply here. The
Respondent has not demonstrated that business reasons
justified its discharge of the assembled workers.
The majority argues that Tri-County is not controlling
because it involved a complete prohibition against en-
gaging in union activity, whereas here employees were
permitted to assemble for over 12 hours. That argument
fails for two reasons: First, as I have argued, the time
period involved here did not diminish employees’ Sec-
tion 7 rights. Second, this case involves not merely a
denial of access, but the discharge of employees. The
majority insists that the employees “were not discharged
for engaging in protected activity on the Respondent’s
premises,” but rather “for their refusal to leave the prop-
erty.” That distinction, however, is illusory. Although
the Respondent’s threat of discharge failed to move
them, the employees left the property promptly after a
sheriff’s deputy spoke to them. They were not fired until
they attempted to return to work 3 days later. The dis-
charge itself, then, was not a means to make employees
leave the property, but rather a penalty for their past con-
duct.
Vindicating an employer’s property rights cannot jus-
tify punishing employees who exercise their statutory
rights. Here, the majority deprives immigrant workers of
a peaceful means of protest and self-organization, which
did no real harm to their employer’s legitimate interests.
Because the balance struck by the majority seems unrea-

2 Cambro Mfg. Co., 312 NLRB 634 (1993); Waco, Inc., 273 NLRB
746 (1984).
3 The Supreme Court long ago held that sit-down strikes were unpro-
tected. See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240
(1939). There, strikers occupied two of the employer’s buildings, shut-
ting down production, for 9 days. They not only defied a state-court
injunction, but also violently resisted the efforts of sheriff’s deputies to
evict them. This case hardly recalls the 1930s.
4 See also ITT Industries, 341 NLRB No. 118 (2004) (not reported in
Board volumes) (addressing access rights of off-site, off-duty employ-
ees to parking lot), enfd. 2005 WL 1513091 (D.C. Cir. 2005); Hill-
haven Highland House, 336 NLRB 646 (2001), enfd. 344 F.3d 523 (6th
Cir. 2003) (same).
sonable, and because I fear a continuing erosion of the
Section 7 rights of unorganized workers,5 I dissent.
Tamara Gant, Esq., for the General Counsel.
James V. Carroll III, Esq. and Mark Schwartz, Esq. (Littler
Mendelson, P.C.), of Houston, Texas, for the Respondent.
Patrick M. Flynn, Esq., for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on October 23, 2000, in Houston, Texas. After the parties
rested, I heard oral argument, and on October 24, 2000, issued a
bench decision pursuant to Section 102.35(a)(1) of the Board’s
Rules and Regulations, setting forth findings of fact and con-
clusions of law. In accordance with Section 102.45 of the
Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1 The Conclusions of Law and recommended
Order are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Quietflex Manufacturing Company, L.P.,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Sheet Metal Workers Local Union
No. 54, AFL–CIO, affiliated with Sheet Metal Workers Interna-
tional Association, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate the National Labor Rela-
tions Act as alleged in the complaint.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following recom-
mended2
ORDER
The complaint is dismissed.
APPENDIX A
JUDGE LOCKE: This is a bench decision in the case of Quiet-
flex Manufacturing Company, L.P., which I will call the “Re-
spondent” or the “Employer,” and Sheet Metal Workers Local
Union Number 54, AFL–CIO, affiliated with Sheet Metal
Workers International Union, AFL–CIO, which I will call the
“Charging Party” or the “Union.” The case number is 16–CA–
20257. This decision is issued pursuant to Section

5 See IBM Corp., 341 NLRB 1288 (2004) (overruling precedent and
rejecting right of non-union employees to coworker representation at
disciplinary interview).
1 The bench decision appears in uncorrected form at pp. 28 through
42 of the transcript [omitted from publication]. The final version, after
correction of oral and transcriptional errors, is attached as Appendix A
to this Certification.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1062
102.35(a)(10) and Section 102.45 of the Board’s rules and
Regulations.
The Government alleges that Respondent unlawfully dis-
charged 83 unrepresented employees who engaged in a work
stoppage. Based on the specific facts of this case, I find that
this concerted activity lost the protection of the Act after the
employees refused to leave the Respondent’s parking lot.
Therefore, I recommend that the Complaint be dismissed.
I. PROCEDURAL HISTORY
This case began when the Union filed its initial charge
against the Respondent on January 13, 2000. After investiga-
tion, the acting Regional Director of Region 16 of the National
Labor Relations Board issued a Complaint and Notice of Hear-
ing on June 30, 2000. I will refer to this document simply as
the Complaint.
In issuing the Complaint, the Acting Regional Director acted
on behalf of the General Counsel of the National Labor Rela-
tions Board, whom I will call the “General Counsel.” Hearing
in this matter opened before me on October 23, 2000, in Hous-
ton, Texas. At the hearing, the parties entered into a written
stipulation which they agreed would constitute the complete
factual record in this case. The stipulation is in evidence as
Joint Exhibit 1.
Also on October 23, 2000, counsel for all parties participated
in oral argument. Additionally, counsel for the General Coun-
sel and for Respondent submitted briefs. After considering the
arguments and briefs, I am issuing a bench decision on October
24, 2000.
II. FACTS
Based upon the stipulation, I find that the charge and
amended charges were filed and served as alleged in Complaint
paragraph 1. Additionally, I find that at all material times,
Respondent has been a limited partnership, licensed to do busi-
ness in the state of Texas; that it maintains an office and place
of business in Houston, Texas; and that it is engaged in the
manufacturing of ducts for the air conditioning industry.
Further, I find that during the 12-month period preceding this
hearing, Respondent sold and shipped goods valued in excess
of $50,000 directly to points outside Texas. I find that Respon-
dent is an employer engaged in commerce within the meaning
of Sections 2(2), (6), and (7) of the Act, as alleged in Complaint
paragraph 4.
Based on the stipulation of the parties, I also find that the
Charging Party is now and has been at all material times a labor
organization within the meaning of Section 2(5) of the Act as
alleged in paragraph 5 of the Complaint.
Respondent has stipulated and I find that the following indi-
viduals are its supervisors within the meaning of Section 2(11)
of the Act and its agents within the meaning of Section 2(13) of
the Act, as alleged in Complaint paragraph 6: President and
Chief Executive Officer W.A. Dan Daniel, Jr.; Vice President
Pete Crane; Manager of Human Resources Steve Conaway; and
Supervisor Jaime Salinas.
Complaint paragraph 6 also alleges that assistant human re-
sources manager Karima Cousinmono is a supervisor of Re-
spondent and its agent. The parties have not stipulated that
these allegations are true, and the record otherwise does not
support them. Therefore, I find that the Government has not
established either the supervisory or agency status of this indi-
vidual.
Complaint paragraph 7 alleges that 83 employees identified
in the Complaint by name ceased work concertedly on or about
January 10, 2000, to seek redress concerning wages, hours, and
working conditions. In the stipulation, the Respondent admits
this allegation to be true. The stipulation also corrects the
spelling of the name of one of the 83 employees.
Based on the parties’ stipulation, I find the following facts
concerning the employees’ concerted refusal to work: The Re-
spondent’s workforce is predominantly of Hispanic and Viet-
namese origin. About 7:00 a.m. on January 10, 2000, the 83
employees named in the Complaint paragraph 7 congregated
together in the parking lot area and waited for the arrival of
either Respondent’s President Daniel or Vice President Crane.
These 83 employees have Hispanic surnames. They had be-
come concerned that the employees with Vietnamese surnames
were receiving more pay and better treatment than the Hispanic
employees. Additionally, the employees who stopped work on
January 10 sought a pay raise, improved vacation and holiday
pay, elimination of perceived discrimination, and other matters
related to working conditions.
At this time, no labor organization represented these em-
ployees. I find that they were acting in concert for their mutual
aid and protection, and that they sought changes in wages,
hours, and other terms and conditions of employment.
Vice President Crane arrived about 7:15 a.m. and told the
employees that he wanted them to go to work. One of the em-
ployees gave Crane a letter describing the employees’ demands.
Crane told the employees that they would have to speak with
Respondent’s president.
About 8:30 a.m. that same day, Human Resources Manager
Conaway asked the employees what was happening. They
gave Conaway a copy of the same letter they had given Vice
President Crane, and told Conaway that Crane knew what was
going on. Although Conaway asked four or five of the em-
ployees to go inside and speak with a manager, they declined,
saying that they wanted the communications to be with all of
the employees.
Around 11:00 a.m. on January 10, Respondent’s President
Daniel, Human Resources Manager Conaway, and a supervisor
went together to the employees who were still outside. Daniel
told the employees that he had their letter of demands. Ad-
dressing one of those demands, the managers informed the
employees that they had found someone to clean the lunch
room and bathrooms.
Respondent customarily conducted meetings for each shift of
employees twice a year, and one of those meetings was ap-
proaching. President Daniel offered to schedule this meeting
about a week sooner by moving it to January 12, apparently to
give the employees an earlier opportunity to voice their con-
cerns. He also offered to meet with the employees in shifts at
that time, presumably to discuss their demands. However, the
employees refused.
President Daniel also offered to meet immediately with dele-
gates of the 83 employees. However, the employees refused,
QUIETFLEX MFG. CO. 1063
explaining that they wanted to remain together. They also
stated that they wanted their demands met. Daniel said that he
could not meet their salary demand, either then or later, but
other things could be discussed, and noted that some of the
demands were unclear to him.
During this exchange between President Daniel and the 83
employees, he also told them that they either needed to return
to work or leave the Company’s premises. The employees
stated that they would neither go to work nor leave unless the
Employer agreed to all of the employees’ demands.
The employees remained assembled on the Respondent’s
parking lot. At about 6:15 p.m. on January 10, Daniel again
spoke to them. Again he offered to meet with delegates of the
group immediately or with all employees grouped by shifts two
days later. The employees refused both offers.
Daniel asked if they were demanding a $7-per-hour raise and
his agreement to all of the demands before they would return to
work, and the employees said that they were. Daniel further
said that he understood that unless he agreed to all of their de-
mands, they were refusing to leave, and the employees agreed
that his understanding was correct.
Daniel then read to the employees a statement in English
which began by summarizing the events of that day. The
statement then continued as follows: “The employees who are
engaged in this work stoppage are hereby notified that they
must leave the Company’s premises by 7:00 p.m., January 10,
2000. Any employee who is refusing to return to work and
refuses to leave the Company’s premises, which include the
Company’s parking areas, by 7:00 p.m. January 10, 2000, will
be discharged.
“We emphasize that such employees will not be discharged
because they refused to work but because they refused to leave
the Company’s premises. Any employees who are discharged
will lose any and all benefits of their employment with the
Company, including their health benefits.”
A Spanish-speaking supervisor provided an oral translation,
but it was not verbatim. The supervisor told the employees in
Spanish that Daniel said they must leave the Company’s prem-
ises by 7:00 p.m. and that if they did not do so, the Company
would call the police. However, the supervisor did not tell the
employees in Spanish that they would be discharged if they
failed to leave the premises.
Shortly after 7:00 p.m. when the employees remained on the
Respondent’s premises, the Respondent called the sheriff’s
department. A sheriff’s deputy arrived about 7:15 and spoke in
Spanish with the employees, who then left the Respondent’s
premises within a few minutes.
The work stoppage lasted about 12 hours. Throughout, the
employees remained in essentially the same location, which
was a parking lot area. Although trucks came through this area
to deliver and pick up goods, the employees did not stop the
trucks from entering or leaving. Because all of the employees
in Respondent’s duct department participated in the work stop-
page, the Company produced no finished ducts on January 10,
2000. However, the record does not indicate and I do not find
that the employees made any attempts to interfere with produc-
tion, except by concertedly withholding their services.
On January 11, 2000, these employees gathered at a roadside
near but not on Company premises. President Daniel, accom-
panied by some others in management, went to the employees
and told them they had been fired the previous evening. Daniel
asked them to turn in their uniforms and told them that their
paychecks would be mailed to them.
On January 12, 2000, the Respondent received by facsimile
an unconditional offer to return to work, signed by several of
the discharged employees. Additionally on January 13, 2000,
several of the discharged employees tried to return to work, but
were not allowed to do so and left the premises.
On January 13, 2000, President Daniel sent a letter to all the
employees involved in the work stoppage, stating that they had
been discharged for violating its instructions to leave the Com-
pany’s property. However, Daniel later reconsidered the action
to terminate the employment of these workers, after he received
information suggesting that many of the employees were con-
fused or may not have understood the instructions he gave the
employees on January 10.
On January 21, 2000, Daniel sent a letter to each of the dis-
charged employees, offering each an opportunity to return to
work on January 24, 2000, under the same conditions of em-
ployment. All 83 employees returned to work and have contin-
ued to be employed by Respondent. However, Respondent has
not paid the employees for the time lost before reinstatement.
The parties further stipulated and I find that as of January 10,
2000, Respondent maintained no rules or policies prohibiting
off–duty employees access to its parking lots and had never
disciplined employees for being in the parking lot. Addition-
ally the parties stipulated that on January 10, 2000, the outside
perimeter of the property was unfenced.
III. ANALYSIS
The General Counsel contends that the facts of this case
must be analyzed under the standard articulated in Tri–County
Medical Center, 222 NLRB 1089 (1976). The Board found
that the Respondent in that case violated Section 8(a)(1) by
preventing an off–duty employee from distributing union litera-
ture outside its facility. Additionally in this case, the Board
articulated a test for determining whether an employer’s rule
barring off-duty employees from its facility would be lawful.
Significantly, in Tri-County Medical Center, the Board
stated that except where justified by business reasons, a rule
which denies off-duty employees entry to parking lots, gates,
and other outside nonworking areas will be found invalid. The
General Counsel relies on this principle to distinguish the pre-
sent facts from a work stoppage in which employees occupy
plant areas and impede production. Such a work stoppage,
sometimes called a “sit-in strike” or “sit-down strike” does not
enjoy the Act’s protection.
The General Counsel argues that the work stoppage itself
began as protected activity and that it could not lose the Act’s
protection when the striking employees did what the law al-
lowed them to do, namely to use the Employer’s parking lot as
the location for concerted activity.
Under the government’s theory, the Respondent could not is-
sue such a restriction unless it had a business reason to do so,
and the Respondent has not demonstrated any such business
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1064
reason. To the contrary, the Respondent had never issued a rule
restricting employee access to the parking lot, which suggests it
would have no business need for such a rule.
In sum, the General Counsel argues, the Act gives employees
a right of access to the Employer’s parking lot. Considering
that they enjoyed such a right of access, the employees could
not lawfully be disciplined for exercising that right. Doing so,
the General Counsel contends, interferes with, restrains, and
coerces employees in the exercise of rights protected by Section
7 of the Act.
Respondent relies on a different line of cases. In particular,
it bases its defense on Waco, Inc., 273 NLRB 746 (1984) and
Cambro Manufacturing Company, 312 NLRB 634 (1993).
These cases arose when groups of employees not represented
by any union concertedly stopped work to press for job–related
demands. In each instance, the employees occupied a non-
working portion of their employer’s facility and refused to
leave when told to do so. In the circumstances of each of these
two cases, the Board found that the Employer did not violate
the Act by discharging the employees for refusing to leave.
To the extent that the Waco and Cambro cases conflict with
the Tri-County Medical Center case cited by General Counsel, I
believe that Waco and Cambro must control. For one thing, the
facts of the present case are much more similar to the facts in
Waco and Cambro than to the facts in Tri-County Medical Cen-
ter, which concerned handbilling rather than an employee work
stoppage.
Additionally, both Waco and Cambro are more recent cases
that Tri-County Medical Center. The Board decided Waco
eight years after it decided Tri-County Medical Center. It de-
cided Cambro 16 years after Tri-County Medical Center. Thus,
if the Board had wished to apply the Tri-County Medical Cen-
ter principle to work stoppages, it had the opportunity to do so,
but did not take that opportunity.
In Cambro, when the unrepresented employees began their
work stoppage, they enjoyed the Act’s protection. However,
the Board found that the employees’ actions became unpro-
tected after a supervisor told them for the second time to return
to work or to leave the Respondent’s property. The Board con-
cluded that
Further in-plant refusals to work serve no immediate pro-
tected employee interests and unduly interfered with the Em-
ployer’s right to control the use of its premises. Accordingly,
the Respondent could lawfully discharge the eleven employ-
ees for continuing their in–plant work stoppage.
Significantly in Cambro, the Board balanced the employees’
right to engage in protected concerted activity on their em-
ployer’s premises against the employer’s right to control these
premises, not against the employer’s right to make products.
The Board did not hold that the protesting employees could
stay on the company’s property indefinitely, as long as they did
not disturb production. Rather, the Board held that these em-
ployees only had the right to stay on company property long
enough to exercise their Section 7 rights in a meaningful way.
To be exact, the Board did not use the phrase, “in a meaning-
ful way,” and those words are not a term of art defining how
long protesting employees may stay on the employer’s prem-
ises over the employer’s objection. Rather, the Cambro deci-
sion recognized that at some point, the employees’ right of
access must yield, because continued access at that point
“served no immediate protected employee interest.”
Certainly if the presence of the protesting employees caused
a disruption to production, it could forfeit the protection of the
Act, but where there is no such interference with production,
the nonworking employees enjoy a right of access only until
such access no longer served immediate protected employee
interests.
In Cambro, that point came when the protesting employees
refused the supervisor’s second instruction to return to work or
leave the premises. At this point, the Board found, “The Re-
spondent was entitled to reclaim the use of the entire premises.”
In the present case, management told the protesting employ-
ees at least twice to go to work or leave the premises. At about
11:00 a.m., after the work stoppage had been going on about
five hours, Respondent’s president told the employees, “that
they either needed to return to work or leave the Company’s
premises.”
Sometime after 6:15 p.m., in the eleventh hour of the work
stoppage, Daniel read a statement to the employees which noti-
fied them that at 7:00 p.m., any employee who refused to return
to work and also refused to leave the premises would be dis-
charged for refusing to leave the premises.
The record does not disclose how many of the 83 employees
understood English. However, a supervisor also told them in
Spanish that they must leave the premises by 7:00 p.m. or the
Employer would call the police. Although this statement did
not threaten discharge, I do not believe that fact is determina-
tive. The message was clear even without the words “or else
you will be fired.”
The employees in the present case had far longer to make
their protests clear than did the employees in Cambro. Twice
they spoke with the Respondent’s highest ranking official who
offered to meet with a delegation of them or, alternatively, to
have meetings with all of them on a shift-by-shift basis two
days in the future.
The employees also presented a letter stating their demands.
Clearly the record establishes that the Respondent’s highest
management read this letter, began action to address some of
those demands, and considered the others. As the Board held in
Cambro, the employees here were entitled to persist in their
concerted protest on the Respondent’s property for a reasonable
period of time. In the circumstances of this case, I concluded
that they continued to refuse to leave the Respondent’s property
beyond this reasonable period of time.
Further, I conclude that their continued presence on the Re-
spondent’s property after the second time they were told to
leave or return to work served no immediate protected em-
ployee interest and unduly interfered with the Employer’s right
to control the use of its premises. Therefore, I find that at this
point, their concerted action lost the protection of the Act.
The record established that Respondent discharged these
employees not because they refused to work but because they
refused to leave Respondent’s property. Therefore, I find that
Respondent’s discharge of these employees did not interfere
with, restrain, or coerce employees in the exercise of the rights
QUIETFLEX MFG. CO. 1065
guaranteed in Section 7 of the Act, and I recommend that the
Complaint be dismissed.
After I have received the transcript of this proceeding, I will
prepare a certification which will attach the transcript of this
bench decision as an appendix. This “Bench Decision and
Certification” will be served on the parties, and upon such ser-
vice, the time period for filing an appeal will begin to run.
Counsel in this case have demonstrated extraordinary coop-
eration and civility, even reaching a stipulation of the entire
factual record. I am impressed, and I greatly appreciate it.
The hearing is closed.