Serendippity-Un-Ltd. and Tigerrr, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1982

263 N.L.R.B. 768 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Serendippity-Un-Ltd. and Tigerrr, Inc. and United
Steelworkers of America, AFL-CIO-CLC. Case
8-CA-15121
August 27, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On April 30, 1982, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision and a motion in opposi-
tion to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
t The General Counsel has moved to strike Respondent's exceptions to
the Administrative Law Judge's Decision on the grounds that (1) the ex-
ceptions failed to comport with the form required by Sec. 102.46(b) of
the Board's Rules and Regulations, Series 8, as amended; (2) Respondent
did not promptly serve copies of these exceptions on the General Coun-
sel and the Charging Party; and (3) the exceptions contain unwarranted,
unsubstantiated, and defamatory attacks on the Administrative Law
Judge, the General Counsel, and the Board. With respect to (1), we find
that although these exceptions do not fully comply with the specificity
requirements of Sec. 102.46(b), they sufficiently designate the portions of
the Decision Respondent claims were erroneous. Moreover, the General
Counsel has not shown prejudice as a result of any deficiency. We also
find, with respect to (2), that the General Counsel was not substantially
prejudiced as a result of the late service of exceptions, since the General
Counsel had adequate time to prepare a brief in opposition to these ex-
ceptions. Regarding (3), we agree with the General Counsel that Re-
spondent's exceptions contain unwarranted, unsubstantiated, and defam-
atory attacks on Board processes and policies. Although we do not con-
done this conduct, we will not strike Respondent's exceptions on this
basis. Accordingly, the General Counsel's motion is denied.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent further contends that the Administrative Law Judge suf-
fered from an unspecified "conflict of interest" which caused him to be
biased in favor of the General Counsel. Based on this contention, Re-
spondent has renewed its motions for a stay of the proceedings and ahearing de novo before a different administrative law judge, and has addi-
tionally requested that the full Board consider this case. After reviewing
the record and the attached Decision in light of Respondent's allegations,
we are constrained to reject these charges. Contrary to Respondent, we
find that the Administrative Law Judge conducted the hearing in an irre-
proachably impartial manner. In fact, the Administrative Law Judge was
extremely sensitive to Respondent's representative's status as a nonattor-
ney and frequently allowed him to deviate from the Board's rules in pre-
senting his case. Accordingly, we find and for the reasons set forth bythe Administrative Law Judge in fn. 3 of his Decision, we hereby deny
all of Respondent's above motions.
263 NLRB No. 100
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein. 3
The Administrative Law Judge found that Re-
spondent's discharge of Supervisor Joseph Perrota
for participating in a strike in protest over working
conditions at Respondent's plant violated Section
8(a)(1) of the Act. He reasoned that this discharge
was "motivated by and incidental to a desire to un-
lawfully discourage statutorily protected activities
among the employees," and recommended that Per-
rotta be reinstated and awarded backpay along
with the other five dischargees.4
Subsequent to the issuance of the Administrative
Law Judge's Decision, the Board issued its Deci-
sion in Parker-Robb Chevrolet, Inc., 262 NLRB 58
(1982). The Board held therein that "[T'he dis-
charge of supervisors as a result of their participa-
tion in union or concerted activity-either by
themselves or when allied with rank-and-file em-
ployees-is not unlawful for the simple reason that
employees, but not supervisors, have rights protect-
ed by the Act." 5 In light of this holding, we
hereby reverse the Administrative Law Judge's
finding that Supervisor Perrotta's discharge violat-
ed the Act.6
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 2, and substitute the
following:
"2. Respondent violated Section 8(a)(l) of the
Act on July 29, 1981, by discharging employees
Leroy Nolf, Dan Kuntz, Gordon Parrish, Frank
3 We shall modify the Administrative Law Judge's recommended
Order so as to require Respondent to expunge from its files any refer-ences to the discharges of Nolf, Kuntz, Parrish, McCann, and Biskup,
and to notify them in writing that evidence of this unlawful conduct will
not be used as a basis for future personnel actions against them. See Ster-
ling Sugars Inc, 261 NLRB 472 (1982).
Chairman Van de Water and Member Hunter find it unnecessary to
rely on Abilities and Goodwill. Inc., 241 NLRB 27 (1979), enforcement
denied 612 F.2d 6 (1st Cir. 1979), in dating Respondent's backpay obliga-
tions from July 29, 1981.
Member Jenkins would compute interest on the backpay of the dis-
charges in the manner set forth in his partial dissent in Olympic Medical
Corporation, 250 NLRB 146 (1980).
* In making this finding, the Administrative Law Judge relied upon theBoard's Decisions in Empire Gas. Inc. ofDenver, 254 NLRB 626 (1981),
Pennypower Shopping News. Inc., 253 NLRB 85 (1980), Sheraton Puerto
Rico Corp., d/b/a Puerto Rico Sheraton Hotel, 248 NLRB 867 (1980), andDownslope Industries, Inc. and Greenbrier Industries Inc., 246 NLRB 948
(1979).
1 In Parker-Robb Chevrolet. Inc., supra, the Board expressly overruled
the latter two cases noted in the above footnote with regard to the issues
involved herein, and also overruled all other decisions which follow the"integral part" or "pattern of conduct" line of cases which includes
Empire Gass Inc. of Denver, supra, and Pennypower Shopping News Inc.,
supra.
p As set forth more fully in his concurring opinion in Parker-Robb
Chevrolet, Inc., supra, Member Jenkins continues to adhere to the "inte-
gral part" or "pattern of conduct" line of cases relied on by the Adminis-
trative Law Judge and, therefore, would adopt the Administrative Law
Judge's finding that Respondent's discharge of Supervisor Perrotta violat-
ed the Act.
768
SERENDIPPITY-UN-LTD.
McCann, and Steven Biskup because the employees
engaged in a strike over working conditions in Re-
spondent's Hubbard, Ohio, plant."
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, as modi-
fied below, and hereby orders that the Respondent,
Serendippity-Un-Ltd. and Tigerrr, Inc., Hubbard,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Offer to Leroy Nolf, Dan Kuntz, Gordon
Parrish, Frank McCann, and Steve Biskup immedi-
ate and full reinstatement to their former jobs or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges previously en-
joyed, dismissing if necessary any replacements,
and make them whole for their loss of earnings,
with backpay to commence on July 29, 1981, with
interest thereon, to be computed as described in
that section of the Administrative Law Judge's De-
cision entitled 'The Remedy."'
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any references to the
discharges of Leroy Nolf, Dan Kuntz, Gordon
Parrish, Frank McCann, and Steven Biskup and
notify them in writing that this had been done and
that evidence of these unlawful discharges will not
be used as a basis for future personnel actions
against any of them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge employees for en-
gaging in work stoppages over working condi-
tions or other protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL offer to Leroy Nolf, Dan Kuntz,
Gordon Parrish, Frank McCann, and Steven
Biskup immediate and full reinstatement to
their former jobs or, in the event such posi-
tions no longer exist, to substantially equiva-
lent employment, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make these employees whole for
any net loss of pay or benefit which they suf-
fered by reason of their unlawful discharge,
with interest.
WE WILL expunge from our files any refer-
ence to the discharges of Leroy Nolf. Dan
Kuntz, Gordon Parrish, Frank McCann, and
Steven Biskup, and WE WILL notify them that
this has been done and that evidence of these
unlawful discharges will not be used as a basis
for future personnel actions against any of
them.
SERENDIPPITY-UN-LTD. AND
GERRR, INC.
Tl-
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: A
hearing in the above matter was held on February 18-19,
1982, in Youngstown, Ohio, on the issues raised by a
complaint issued by the Regional Director for Region 8,
of the National Labor Relations Board, on September 17,
1981, and the timely answer thereto of Respondent, Ser-
endippity-Un-Ltd. and Tigerrr, Inc.'
At issue is whether, as the General Counsel alleges,
Respondent's employees, on or about July 28, 1981, en-
gaged in protected concerted activities including a lawful
strike and whether, on or about the next day, July 29,
1981, Respondent terminated them because of their en-
gaging in such activities and thereafter refused to rein-
state or reemploy them despite their unconditional offer
The caption and Respondent's name appears as amended at the hear-
ing.
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to return; or, as Respondent contends, the employees
quit their employment on July 28, 1981.
At the hearing, Respondent appeared without counsel
and conducted its own defense through its president,
Larry Lee Smith, by profession an osteopathic physician
and not a lawyer. All parties at the hearing were afford-
ed an opportunity to call and examine witnesses,2 to
present other evidence, to argue orally on the record,
and to submit post-trial briefs. After the receipt of evi-
dence, both sides waived final argument and thereafter
the General Counsel and Respondent submitted timely
briefs which have been duly considered.3
' Respondent's sole witness was its president, Larry Lee Smith who
also represented Respondent at an all-party, pretrial telephone conference
as well as at the hearing. President Smith, both in the pretrial conference
telephone call, I week before the hearing, and again at the hearing, stated
that he would call three witnesses. At the hearing, he specified that these
witnesses were his current employees, Tom Kilar, Sr., Tom Kilar, Jr.,
and Mildred Kilar (the son and wife of Tom Kiluar, Sr.). He nevertheless
failed to have them appear at the hearing at any time because, he said (a)
he was unprepared to go forward on the first day of the hearing at the
conclusion of the General Counsel's case-in-chief; (b) he understood from
the pretrial phone conversation that the hearing would not proceed on
consecutive days; (c) on the first of the hearing, he said he would pro-
duce them on the second day, but on the second day of the hearing, he
said that Tom Kilar, Sr., his supervisor, had another daytime job which,
under the existing economic circumstances, Kilar Sr. was fearful of losing
if he took time off to testify; and (d) Smith was not timely advised of the
subpoena process to assure the appearance of his witnesses.
The complaint had been outstanding since September 17, 1981. Re-
spondent's answer, succinctly and apparently professionally drafted, is
dated January 19, 1982 (G.C. Exh. I(e)). At the hearing, with respect to
(d), above, President Smith failed to contest counsel for the General
Counsel's assertion that about I month before the opening of hearing, Re-
spondent, under the General Counsel's personal supervision, had written
out the procedure for procuring blank subpoenas from the Regional Di-
rector. At no time did Respondent assert that Board subpoenas were
sought or refused.
With respect to the absence of witnesses due to prevailing economic
conditions, (c) above, and President Smith's alleged misunderstanding of
either the Board's Rules and Regulations or my telephone statement that
the hearing was estimated for 2 days and that after 6 p.m. of the second
day of the hearing, Friday, February 19, 1982, 1 would not be available
in the succeeding weeks because of other commitments, the Board may
not permit this alleged confusion to unreasonably delay or overturn its
hearings notwithstanding that President Smith is not a lawyer. Moreover,
the hearing was adjourned early on the first day on President Smith's as-
sertion at that time that he would produce his witnesses on the second
day. He failed to do so for the above reasons which, on their face, sug-
gest a lack of merit: inadequate and untimely knowledge of the availabil-
ity of subpoenas; economic fears of one witness but failure to produce
two others.
I Respondent's president submitted a timely post-hearing brief and
motion, dated March 10, 1982. The General Counsel filed its opposition
dated April 2, 1982. Respondent's document requests (I) a stay of all fur-
ther proceedings; and (2) a hearing de noro before a different administra-
tive law judge.
The motion for a new trial is apparently based on alleged prejudice to
Respondent flowing from several sources: (a) the prejudice inherent in
the all-party, pre-hearing, telephone conference call, initiated by me and
conducted with Respondent's apparent consent, explicitly to encourage
and establish the grounds for settlement. In substance, Respondent (as I
understand the argument) asserts that a discussion of the pleadings and
the issues demonstrated that "this judge had absolute knowledge of the
case and was, therefore is, unqualified due to prior knowledge of the
case." Under Sec, 102.35, Rules and Regulations of the National Labor
Relations Board, Series 8, subsec. (g), however, after being "assigned" to
the case, and "between the time he is designated and transfer of the case
to the Board," the administrative law judge "shll have authority ... (g)
To hold conferences for the settlement or simplication of the issues by
consent of the parties, but not to adjust cases .... " In my exercising a
specifically authorized power, Respondent has failed to allege a ground
sufficient in law for disqualification under Sec. 102.37 of the Rules and
Upon the entire record, including the briefs, and upon
my observation of the witnesses as they testified, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The complaint alleges, Respondent admits in its
answer or at the hearing, that Serendippity-Un-Ltd. (and
Tigerrr, Inc., an additional name which Respondent has
used from time-to-time in the conduct of its business
since May 1979) is a Delaware corporation with a sole
facility in Hubbard, Ohio, where it is engaged in the
manufacture of truck beds. Respondent, annually, in the
course and conduct of its business, receives goods direct-
ly from points located outside Ohio valued at in excess
of $50,000 and admits that it has been, at all material
times, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Regulations. There is no suggestion in Respondent's allegations of my
knowledge ex parre of any evidence, unlawful contact with parties, objec-
tion to the phone conversation, or similar disabling elements, nor does
Respondent support any of its allegations of prejudice or wrongdoing by
the affidavit required by Sec. 102.37; (b) a further alleged prejudice flows
from my ruling, during the second day of the hearing (Friday, February
19, 1982), closing the record upon Respondent's failure to produce fur-
ther evidence or witnesses. Respondent argues that it was prejudiced be-
cause it was not permitted to fully support its defense. As to this asser-
tion of prejudice, see fn. 2, above; (c) Respondent also asserts direct par-
tiality and prejudice because of my membership in a "union," and appears
to suggest the generic prejudice of any administrative law judge so affili-
ated. Without reaching the second question, I am, for better or worse,
not now, nor have I ever been, a member of a statutory labor organiza-
tion; and, again, Respondent's assertion is not the subject of the affidavit
required by Sec. 102.37
To the extent Respondent's brief addresses the morality or lawfulness
of the General Counsel's and the Board's existence, actions, and activities
("abomination," "immoral," etc.), it is disrespectful to the General Coun-
sel and the Board and its processes beyond the limits of fair argument
and wholly unsupported in the record On the General Counsel's motions
to strike such language and assertions, tserspray Enterprises; Inc., 253
NLRB 922, 928, fn. 2 (1980); Miami Foundry Corporation, 252 NLRB 2
(1980).
Lastly, the General Counsel's April 2, 1982, opposition moves to strike
Respondent's attempt, by post-hearing motion in its brief, to place in evi-
dence a document, not previously identified (a decision of the State of
Ohio unemployment compensation board) relating to the "quit" of al-
leged discriminatee Steven S. Biskup. Respondent placed in evidence sim-
ilar documents relating to Biskup and to other discriminatees (Resp.
Exhs. 1, 2, and 3). While it is true that Respondent fails to assert that the
proffered document was newly discovered or not in existence during the
hearing; and also true that such a previously unidentified, unmentioned
document would ordinarily be rejected upon the General Counsel's oppo-
sition, Quebecor Group, Inc., 258 NLRB 961 (1981), S Freedman Electric,
Inc., 256 NLRB 432 (1981), 1 will place it in the record on the theory
that its omission was of Respondent's oversight, especially since other
Biskup documents are in evidence (Resp. Exh. 3). Since it is included in
Respondent's brief, I shall award it no further identifying number among
Respondent's documents.
In sum, Respondent's motion to include the Ohio unemployment com-
pensation board of review decision in evidence is granted. The General
Counsel's motion to strike from Respondent's brief unsupported and de-
famatory descriptions of the General Counsel, the Board, their existence,
and their activities is granted. Respondent's motions for a stay and for a
new trial are denied since it has failed to support its allegations of preju-
dice and denial of due process.
Regarding the importance of an affidavit to support an allegation of
prejudice 102.37 of the Rules and Regulations, compare the similar re-
quirements in 29 U.S.C. § 144 and "Peremptory Challenges to Federal
Judges," American Bar Association Journal April 1982.
770
SERENDIPPITY-UN-LTD.
11. THE UNION AS A LABOR ORGANIZATION
The complaint alleges, and Respondent admits, that at
all material times the United Steelworkers of America,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Joe Perrotta, a company foreman in charge of Re-
spondent's day shift of about one-half dozen employees,
and the General Counsel's other witnesses, testified cre-
dibly4 that in a 3-month period prior to July 28, 1981, he
and the six employees on the morning shift regularly dis-
cussed unsafe working conditions in the plant, the un-
known extent of their coverage under Respondent-pro-
vided hospitalization insurance, a need for regular pay
raises, the necessity for sickness-injury pay in case they
are injured on the job, the need for a pension plan, and
similar matters. In this 3-month period prior to July 28,
1981, he spoke with President Larry Lee Smith on no
fewer than 10 occasions wherein he told Smith of em-
ployee desires to discuss grievances with him and the ne-
cessity for him to come down and talk to the employees
particularly about insurance coverage and shop safety
problems. In response, Smith promised to talk with the
men and, on occasion, set dates for his appearance.
Smith, however, failed to appear to discuss these griev-
ances and, on this record, never discussed these matters
with the employees.
Respondent, whose employees are not represented by
a labor organization, employs a total of six to nine full-
time production employees, two in-plant supervisors
(Tom Kilar, Sr., and Joe Perrotta), and four to five part-
time production employees. It is not disputed (a) that
upon gaining employment with Respondent, each em-
ployee is told, often by Tom Kilar, Sr., sometimes by his
wife, office clerical Mildred Kilar, that among the bene-
fits enjoyed by Respondent's production employees is
that, at the end of 30 days of employment, they are cov-
ered by major medical health insurance under a plan
funded by Respondent; and (b) that each employee,
4 The General Counsel alleges that Perrotta is not a supervisor within
the meaning of Sec. 2(11) of the Act. Perrotta and other employees con-
sistently testified that he is in sole charge of the day shift, 7 a.m. to 4
p.m., and regularly exercise the power to assign employees to their jobs
in his own discretion and to reassign them with regard to the exigencies
of work. Notwithstanding that he has no power to hire or fire employees,
I conclude that, since the attributes of supervisory capacity in Sec. 2(11)
of the Act are read in the disjunctive, Perrotta's power to responsibly
and regularly direct the assignment and reassignment of the work of all
six employees on his shift, in his own discretion, qualifies him as a statu-
tory supervisor within the meaning of Sec. 2(11) of the Act. William 0.
Hayes, d/b/a Superior Casting Company, 230 NLRB 1179, 1189 (1977).
Respondent's supervision is headed by Larry Lee Smith, an osteopathic
physican, as president of Respondent. He does not, however, run Re-
spondent's affairs on a day-to-day basis; rather, he engaged in the practice
of osteopathic medicine. He is nevertheless consulted on a regular basis
on all business problems. The chief production supervisor in the Hub-
bard, Ohio, plant is Plant Manager Tom Kilar, Sr., who has the power to
hire and fire, reports to work on the evening shift at or about 4 p.m., and
remains there until about 8 p.m. on a daily basis. He often gives next day
work instructions to the day supervisor, Joe Perrotta. The lowest
member of supervision is Joe Perrotta who, as above noted, has the
power to responsibly direct the work of the six-employee morning shift
in his own discretion. Tom Kilar, Jr., is a morning-shift production em-
ployee. Mildred Kilar, wife of Tom Kilar, Sr., is the office clerical.
when first employed, filled out health insurance applica-
tions and returned them to Mrs. Kilar.
Welder Leroy Nolf testified that, although he com-
menced employment with Respondent in the spring of
1981, he became concerned when he failed to receive a
health insurance identification card or literature concern-
ing the scope of coverage after 30 days of employment.
He discussed this with coemployees over a 2-month
period. His numerous phone calls to a health insurance
carrier (whose telephone number he found on Foreman
Perrotta's allegedly expired health insurance card) result-
ed in Nolf discovering, apparently on July 20, 1981, that
four Respondent employees were covered by health in-
surance: Joe Perrotta, Steve Biskup, Frank McCann, and
Dan Kuntz.5 Nolf thereafter observed to his coem-
ployees that not only he (who had been employed more
than 30 days) was not covered, but coemployee Gordon
Parrish, a longtime employee, was also not covered by
health insurance. Employee discussion occurred up to
and including their 10- to 15-minute breaktime between 9
and 9:30 a.m. on July 28, 1981. Also regularly discussed
by the employees prior to July 28, initiated by welder
Dan Kuntz, were various plant safety problems dealing
with Respondent's shop electrical equipment. Kuntz tes-
tified without contradiction that the welding machinery
contained bare electrical cables, and that a defective
punch press had caused injury to an employee. Other
employees testified without contradiction of the existence
of open paint and paint thinner containers stored in a
room near acetylene tanks used in welding. They feared
that, in the event of fire due to defective electrical equip-
ment and improperly stored paint combustibles, chances
of an acetylene explosion were present.
Tuesday, July 28, 1981: Breaktime (9:15 a.m.); the
Employees Punch Out
On Tuesday morning, July 28, at breaktime, Nolf told
his coemployees, including Foreman Perrotta. that it was
clear that some employees were not covered under Re-
spondent's health insurance policy. Perrotta urged Nolf
to use the company phone in the office and again verify
from the insurance carrier what the status of health in-
surance coverage actually was. Nolf entered the office
and was using the phone for that purpose when Supervi-
sor Tom Kilar, Sr., walked into the office. When Nolf
offered the phone to him to verify the extent of insur-
ance coverage, Kilar refused to take the phone. Nolf
then returned to the lunch table around which the day-
shift employees were gathered with Perrotta and told
them that the health insurance carrier again verified the
coverage of only four of six employees. Perrotta then
left the lunch table and told the six employees (Nolf,
' Respondent placed in evidence (Reasp. Exh. 4) an insurance record
purporting to show that as early as July 16, 1981, Nolf. Perrotta,
McCann, Biskup, and Kuntz were covered. If this were true, there is no
reason why Smith did not unequivocally tell Nolf that at least Nolf was
covered by health insurance regardless whether other employees were
covered. As seen in the text, Nolf was the prime mover in employee dis-
content in this area and there is no testimony or assertion from Smith
that Smith, to defuse the employee walkout of July 28, ever told Nolf or
any other employee that he was covered by health insurance. The docu-
ment fails to show that employee Gordon Parrish was covered.
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuntz, Parrish, Kilar Jr., McCann, and Biskup) that he
was going into the office to speak with Tom Kilar, Sr.,
to find out what was going on and attempt to "straighten
the matter out." Perrotta then entered the office and
spoke to Supervisor Kilar.
Perrotta testified that he wanted to determine if Pro-
duction Manager Kilar had spoken to President Smith to
set a date for Smith to address the employees concerning
their grievances. In the office, Kilar told Perrotta that
any one who did not want to work could go home. He
added: "You guys don't have no bitch." Perrotta left the
office and told the employees that he was going to
punch out on the timeclock and "stop work" until he
could get President Smith to come down and talk with
the employees about the various problems that they had.
Welder Dan Kuntz credibly testified that when Per-
rotta came out of the office he told them that Supervisor
Kilar said that none of the employees had anything to
"bitch" about; and that anyone who did not want to
work should go home. Nolf recalled that, after Perrotta
told them this, Perrotta picked up his lunchbox and ther-
mos bottle and said that he would see them later; "I am
tired of living on promises; I've got to prove a point and
get this mess straightened out. You guys do what you
want.6 I am going to punch the clock and see if we can't
get this thing straightened out."
Kuntz recalls that, as the employees were starting to
walk to the timeclock, following Perrotta, Supervisor
Kilar came out of the office and entered the shop. Kuntz
told Kilar that all the employees wanted to do was to
"talk to you." He said that the employees did not want
to take any money away from the Company or even talk
about something that would cost money; that the em-
ployees merely wanted to talk to Kilar to discover the
extent of insurance coverage. Kilar, according to Kuntz,
responded by saying: "You guys don't have a bitch at
all; if you don't want to work, go home."
The employees then punched out and walked out to
Respondent's parking lot at or about 9:30 a.m.
Sometime later that morning in the parking lot. Leroy
Nolf and the employees drew up a list of 15 grievances
including pay rates, pensions, insurance, and injury pay,
which they desired to discuss with President Smith (G.C.
Exh. 2). Later in the morning, after telling his coem-
ployees that it was possible that Supervisor Kilar had not
communicated with President Smith and that it would be
wise to contact President Smith directly, Nolf left the
parking lot and, from a nearby gasoline station, tele-
phoned Smith at Smith's office in Canfield, Ohio. When
Nolf asked Smith whether Supervisor Kilar told him that
the employees were out in the parking lot, Smith admit-
tedly said that he knew that they were in the parking lot.
Nolf then asked how they could straighten out their
grievances and Smith asked for a couple of the griev-
ances. Nolf told him that two of the particular griev-
ances were health insurance and safety problems in the
shop and Smith answered that he did not want to hear
about them and told Nolf to "get off his back." Nolf
then told Smith that, if he wanted to resolve the griev-
6 There is no suggestion that Perrotta directed the employees to punch
out.
ances, he would have to hear about them sometime or
another. Smith hung up. Nolf returned to the parking lot
and reported the incident to the employees.
All of the General Counsel's witnesses testified that
they never told Kilar Sr., Smith, or any other person,
that they had quit their employment. Moreover, they tes-
tified that they never used the word "quit" on that day
or at any other time.
Smith testified that, when he received the telephone
call from Leroy Nolf, he denied that Nolf said that the
employees had walked out. Rather, he testified that Nolf
said: "We have quit."7 After Nolf said this, Smith recalls
that Nolf asked Smith what he was going to do about it
and Smith answered: "If you quit, you've quit; if you've
quit, that's the end of it." Smith, however, says he then
inquired: "What seems to be the problem in your quit-
ting?" and that Nolf answered that employee Frank
McCann who was working for Respondent for some
time did not have insurance. s Smith said that he told
Nolf that that was not exactly true and that he did have
accident and disability insurance and workmen's compen-
sation insurance. Smith said that he admitted telling Nolf
that at that time McCann did not have health insurance.
He noted that, when Nolf then asked why not, Smith
told him that they had tried to get McCann insured but
the insurance company had turned him down because of
McCann's disabling hearing impairment. After they fin-
ished discussing McCann, Nolf, according to Smith,
again told him that he was in the phone booth and that
the other employees were out in the parking lot. Smith
said that he told them that if they quit, they should get
out of the parking lot. On the basis of Smith's hesitant
and often inconsistent testimony in which he changed his
mind concerning what was said in these various conver-
sations, together with my observation of his deameanor
as he testified, and notwithstanding that McCann may
not be covered by health insurance, I do not credit the
balance of Smith's testimony where it conflicts with
Nolf's testimony. I specifically discredit his testimony
demonstrating Nolf's repeated use of the word "quit."
Smith's testimony on this point was unbelievable when
delivered and was unimproved on review of the tran-
script.9
? Smith admitted, in his testimony, that Respondent's payroll records
show, on the date July 28, 1981, that the employees had "walked out."
Nothing on the payroll record demonstrates that the employees "quit" or
otherwise terminated their employment either by their own actions or by
Respondent's action.
' I do not credit Smith's version of his conversation with Nolf.
O Smith at first testified with assurance that Tom Kilar, Sr., telephoned
him on July 28 around noon and told him that the six persons named in
the complaint "quit," but it appeared a few minutes thereafter that he
was not sure what Kiar said:
Q. Mr. Smith, is it your testimony that Tom Kilar. Sr., called you
up and said "We quit."
A. No.
Q. What did Tom Kilar say?
A. What did Tom Kilu say?
Q. That's my question.
A. May I have the question again, sir.
0 0
A. "They quit."
Continued
772
SERENDIPPITY-UN-LTD.
On the same day, at or about 2 p.m., while the em-
ployees were still in the parking lot, Nolf told Perrotta
that he was going to leave them to telephone for some
help. He ultimately reached the Union (United Steel
Workers of America) of which he was previously a
member and was put in contact with the union agent,
Tom Fair. He told Fair of their problems; agreed with
Fair that it was too late for the employees to meet with
him that day; and agreed to have him meet with the em-
ployees the next morning, at 6 a.m. (1 hour before the 7
a.m. starting time in Respondent's plant) at a truckstop in
nearby Hubbard, Ohio. Nolf recalls, and Fair confirmed,
that Fair told him not only that they would discuss their
problems and get a plan of action, but also that all em-
ployees should be ready to go to work and that Nolf
should tell the employees that.
The Next Day: July 29, 1981 (Wednesday)
At 6 a.m. the next day, July 29, 1981, five of the six
employees met at the truckstop, with Parrish joining
them later in the morning. They filled out union mem-
bership application cards at Fair's request to demonstrate
their desire to have the Union represent them and agreed
to go to the plant. They arrived at the plant at or about
10 minutes before 7 o'clock at which time Parrish joined
them. Within a few minutes, Supervisor Kilar emerged
from the plant and went toward his car. Fair, Perrotta,
and Kuntz went over to speak to Kilar.
Union agent Fair (and Perrotta, Kuntz, and Nolf, mu-
tually corroborating their own and Fair's testimony) cre-
dibly testified and the evidence shows that, when Fair,
Kuntz, and Perrotta approached Supervisor Kilar, Fair
identified himself as a union agent. Fair told Kilar that
"these gentlemen are here to go back to work." Kilar
said that Respondent was a small family company and
had no union there. Fair answered that the employees
were not family employees; that even if Kilar did not
want the Steel Workers Union in the plant, the employ-
ees had nevertheless demonstrated that they wanted
union representation; and that enough of them had done
so to start their own union in the shop, Kilar then said:
"They can start a union over my dead body." When Fair
repeated that the employees could start their own union
in the shop, Kilar said that the employees would "have
to go through [me] first to start a union here." Fair then
asked Kilar whether he was going to let these "gentle-
men go back to work." Kilar said that he would not
permit it and that the employees had quit the day before.
Fair denied that they had quit and asked Kilar if there
was enough work for them. Kilar said that there was
plenty of work in the shop. Fair then asked why Kilar
was not permitting them to return to work and Kilar re-
peated that they had quit. When Fair asked Kilar wheth-
Smith also testified that he and Tom Kilar again spoke in person on
that same day in the evening, or on the following day. He could not re-
member where the conversation took place or what time of day it was
but recalled his asking whether the employees specifically said they were
quitting. I do not credit such testimony. I observed Smith to be an eva-
sive and consistently hesitant witness. This, together with his lack of
spontaneity, leads me to conclude that much of his testimony, when ma-
terial and responsive, was not worthy of belief especially when contra-
dicted by other testimony.
er he was firing them or laying them off, Kilar said they
had quit.
Fair, Kuntz, and Perrotta returned to the other em-
ployees and told them that Kilar refused to permit them
to go back to work. Fair, seeing Kilar return to the
plant, told the employees that Kilar had, in effect, laid
them off and suggested that they go to the Ohio unem-
ployment compensation office and sign up for unemploy-
ment compensation benefits.
Fair then entered the plant at or about 7:15 a.m. and
told Supervisor Kilar what the employees were planning
to do. There he found Kilar engaged in an extended
phone conversation during which Kilar pushed the
phone over to Fair and said into the phone: "why don't
you talk to this guy [Fair]?" Fair picked up the phone,
identified himself, and discovered that he was speaking
to President Smith. Fair asked for voluntary recognition
as the employees' statutory representative. When Smith
asked who Fair represented, Fair said that he represent-
ed Respondent's employees but refused to give any
names. Smith then asked Fair to tell him under what
statute he was claiming to be the statutory representa-
tive; and when Fair said that it was the National Labor
Relations Act, Smith asked him for a copy. Fair then
told him that he was not there to debate the employees'
problems in the shop but wanted an opportunity to dis-
cuss voluntary recognition. Fair testified that, when it
became clear that Smith was not willing to grant volun-
tary recognition, Fair told Smith that he would follow
the National Labor Relations Act procedures for repre-
sentation and would file an election petition. Fair ended
his conversation with Smith by telling him that the em-
ployees wanted to return to work. Smith told Fair that,
if the employees ever came back to work, they would
come back under different "conditions." When Fair
asked what conditions these would be, Smith refused to
explain and the conversation ended. Fair turned to Su-
pervisor Kilar and told him that there was no sense in
his refusing to put the employees back to work. Kilar an-
swered that the employees had quit and "that is our posi-
tion."
Fair left Kilar and returned to the employees, telling
them of his conversations with Smith and Kilar, and that
they would not be allowed to return to work. When em-
ployees told him that they had their personal equipment
at the plant, Fair returned to the plant, asked Supervisor
Kilar's permission to have the employees reclaim their
personal equipment, and Kilar agreed. The employees
picked up their personal equipment and left.
Smith testified that he had a telephone conversation
with Fair in which Fair told him that the employees
were ready and willing to return to work but stated that
Supervisor Kilar had told him at the same time that the
employees had taken their equipment and had quit. I find
that, although the employees did take their personal
equipment, they took their equipment under the condi-
tions as above noted; i.e., after Kilar denied their request
to return to work. I do not credit Smith's testimony inso-
far as it suggests that, at the time of his conversation
with Fair, the employees had already removed their per-
sonal equipment. Rather, I conclude that Smith learned
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this event after Fair spoke to him and from a subse-
quent conversation with Kilar Sr. In short, the credited
evidence does not support any inference, which the con-
text of Smith's testimony implied, that he was reinforced
in his conclusion that the employees quit their employ-
ment because, when he spoke to Kilar and Fair, the em-
ployees had already removed their personal equipment
from the plant.
Smith also testified that Fair conditioned the return of
the employees to work only if Respondent would grant
recognition to the Union as their statutory representa-
tive. I find, on the basis of Fair's denial, the testimony of
the employees (including Kuntz, Nolf, and Foreman Per-
rotta), and the probabilities established from the record,
that Fair did not impose, as a condition of the employ-
ees' return to work, that Respondent recognize the
Union as the employees' statutory representative.
Smith conceded that at no time did Respondent make
an offer, much less an unconditional offer, to have any of
the employees return to work. The employees thereafter
registered for unemployment compensation benefits and,
on each occasion, were refused benefits (Resp. Exhs. 1,
2, 3, and 6) on conclusions under the Ohio statute, that
the employees had quit without "just cause." See also
the decision on Biskup in Respondent's brief.
Determinations of the Ohio Bureau of Employment
Services, including reconsideration decisions, indicate
conclusions that Respondent's employees (the alleged
discriminatees herein) quit their employment without just
cause. The decisions do not pass on the question whether
the employees engaged in a concerted work stoppage.
Although I received in evidence the documents support-
ing these conclusions by the Ohio Bureau of Employ-
ment that the employees "quit" without "just cause," and
with due deference both to the Ohio bureau and to the
statute1 ° under which such interpretations were made, I
nevertheless do not give such reports governing weight
in interpreting the statutory questions before me: wheth-
er the employees "quit" their employment in the sense of
a permanent cessation of their work relationship, or
whether they left their workplaces while engaging in a
protected concerted activity and were terminated there-
fore. Compare: Magic Pan, Inc, 242 NLRB 840, 841
with Leshner Corporation, 260 NLRB 157 (1980).
Lastly, Respondent offered into evidence a report
(Resp. Exh. 7) of the Occupational Safety and Health
Administration (OSHA) dated August 12, 1981, in
which, pursuant to its August 6 inspection of Respond-
ent's factory, OSHA found "serious" violations of the
Occupational Safety and Health Act by virtue of various
storage and electrical safety problems in Respondent's
10 Ohio statutes: sec. 4141.29 (DX2)t The face of these denials appear
to suggest that the employees "quit" because they were "no longer satis-
fied with the working conditions" (Resp. Exh I) and that the burden of
establishing that the work "was no longer suitable" was on the employee.
It is thus clear that, in defining a "quit," the purposes and ends of the
Ohio statute are not necessarily consistent with the protections afforded
by the Act; and that the interpretation of events under the Ohio statute
cannot control, much less bind, the Board concerning whether the action
of the employees amount to a "quit" under the National Labor Relations
Act. Cf. W C McQualde Inc., 220 NLRB 593, 594 (1975). See, particu-
larly, Duqusne Electric and Manufacturing Company, 212 NLRB 142, fn.
1 (1974), and cases cited therein regarding the admissibility and effect of
state unemployment agency determinations of an employee "quit."
factory. President Smith testified that these violations
were rectified so quickly that the $200 fines imposed by
OSHA were waived. Compare Tamara Foods, Inc., 258
NLRB 1307 (1981).''
Discussion and Conclusion
In Tamara Foods, Inc., supra, employees struck over
ammonia fumes. In that case, the employees began to
clock out and the employer urged the employees that
they had better clock back in and if they did not clock
back in they need not return to work on the next day.
Respondent further stated that the employees who left
work should consider themselves fired. The Administra-
tive Law Judge found that, although the activity of the
employees in clocking out was concerted activity, he
found that their conduct was not protected. The Board
disagreed and stated as follows:
It has long been established that Section 7 of the
Act protects the rights of employees to engage in
protests, including work stoppages, over what the
employees believe to be unsafe or unhealthy work-
ing conditions. N.L.R.B. v. Washington Aluminum
Company, Inc., 370 U.S. 9 (1962); Union Boiler Com-
pany, 213 NLRB 818 (1974); Du-Tri Displays, Inc.,
231 NLRB 1261 (1977); E. R. Carpenter Co., 252
NLRB 18 (1980); Service Machine & Shipbuilding
Corp., 253 NLRB 628 (1980).
In N.LR.B. v. Washington Aluminum, supra, a
case which closely parallels the instant proceeding,
the U.S. Supreme Court held that employees have
the right under Section 7 of the Act to walk off
their jobs, without prior notice to their employer
and without following established plant rules forbid-
ding employees from leaving their work stations
without permission, if their action is a means of pro-
testing what they perceive to be intolerable work-
ing conditions. The general rule is that the protec-
tions of Section 7 do "not depend on the manner in
which the employees choose to press the dispute,
but rather on the matter that they are protesting."
Plastilite Corporation, 153 NLRB 180, 184 (1965),
enfd. in pertinent part 375 F.2d [243] (8th Cir.
1967). Inquiry into the objective reasonableness of
employees' concerted activity is neither necessary
nor proper in determining whether that activity is
protected. As we stated in Plastilite Corporation.
supra, "we must respectfully disagree with any rule
" In that case where, unlike the instant case, OSHA had found no vio-
lations of safety and health regulations, the Administrative Law Judge
found that an employee strike over alleged safety and health violations
was not protected because there was no OSHA violation. The Board
held to the contrary, asserted that the rights guaranteed employees under
the Act are distinct from and are not subordinate to the provisions of the
Occupational Safety and Health Act, citing Du-Tri Displays Inc, 231
NLRB 1261 (1977), and found "protected" that concerted activity where-
in the employees merely believe that their working conditions are unsafe
or unhealthy. In the instant case, however, not only did OSHA find vio-
lations, but described Respondent's violations of the Occupational Safety
and Health Act to be "serious" in several respects (Resp. Exh. 7). These
violations, both of which, in part, prompted the employee walkout, were
not remedied by Respondent until some 2 weeks after the employees
ceased their work.
774
SERENDIPPITY-UN-LTD.
which would base the determination of whether a
strike is protected upon its reasonableness in rela-
tion to the subject matter of the labor dispute.
When a labor dispute exists, the Act allows employ-
ees to engage in concerted activity which they
decide is appropriate for their mutual aid and pro-
tection, including a strike, unless ... that activity is
specifically banned by another part of the statute, or
unless it falls within certain other well-established
proscriptions." Whether the protested working con-
dition was actually as objectionable as the employ-
eeas believed it to be, or whether their objection
could have been pressed in a more efficacious or
reasonable manner, is irrelevant to whether their
concerted activity is protected by the Act. Interna-
tional Van Lines, 177 NLRB 353, 364 (1969); Du-Tri
Doiyst Inc., supra, Modern Carpet Industries Inc.,
236 NLRB 1014 (1977), enfd. 611 F.2d 811 (10th
Cir. 1979); Ben Pekin Corporation, 181 NLRB 1025
(1970), enfd. 452 F.2d 205 (7th Cir. 1970).
Nor does the fact that employees fail to make a
specific demand to the employer automatically
render their conduct unprotected. Particularly
where the employees are not represented by a labor
organization which may speak to the employer on
their behalf, "if from surrounding circumstances the
employer should reasonably see that improvement
of working conditions is behind the walkoff, it may
not penalize the employees involved without run-
ning afoul of Section 8(a)(1). "South Central Timber
Development, Inc., 230 NLRB 468, 472 (1977);
N.LR.R v. Washington Aluminum, supra.
Of particular significance here is the fact that Re-
spondent's employees are not represented by a labor
organization or covered by a collective-bargaining
agreement containing a "no-strike" clause ...
We must also reject the Administrative Law
Judge's conclusion that the employees' walkout was
unprotected because the Occupational Safety and
Health Administration found Respondent's plant not
to violate its regulations ....
Accordingly, for the reasons stated above, we
find that Respondent violated Section 8(aX1) . . .
because they engaged in a strike over working con-
ditions. ... [258 NLRB 1308-09.]
Applying the above Board rules to the instant facts, I
find that it is clear, based on a preponderance of the
credible evidence, that the six persons, including Fore-
man Perrotta, engaged in a joint and concerted cessation
of work because of what the employees long perceived
to be (and what OSHA shortly thereafter clearly found
to be) serious health and safety violations in the plant
and because of what they perceived to be inadequate
coverage of Respondent's health insurance plan. Such ac-
tivities, especially where, as here, there is no bargaining
representative, under Washington Aluminum v. N.LR.B.,
supra, are protected concerted activities notwithstanding
the reasonableness of the employees' perception, any lack
of notification to the employer of their intent to cease
their work, or the reasons therefor, in order to force
their demands (not present in this case) and notwith-
standing alternative methods of solving the problems. In
the instant case, the credited testimony of employee
Kuntz demonstrates that the employees merely wanted
to talk to Kilar concerning their problems and were not
then attempting to enforce economic demands. Indeed,
what they wanted to do at the start of the walkout was
not to cease work for any extended time but to spend,
according to Kuntz' conversation with Kilar, perhaps 15
minutes talking to Kilar concerning the extent of their in-
surance coverage. The employees were not deprived of
engaging in protected concerted activity even though
they were not then engaged in an immediate economic
confrontation. Lewittes Furniture Enterprises, Inc., 244
NLRB 810 (1979). I so find. Nor was the employee
action any less protected because Supervisor Perrotta
played a prominent role in triggering the walkout. Shera-
ton Puerto Rico Corp., d/b/a Puerto Rico Sheraton Hotel,
248 NLRB 867 (1980) (Member Truesdale, dissenting).
In no uncertain terms, Kilar told the employees and
Foreman Perrotta that they had no "bitch" and if they
did not want to work, they should go home. The em-
ployees then punched out. I conclude, however, that
Kilar's conditions-work under existing conditions or
punch out-was not the same as telling the employees
that, if they punched out, they were terminated as was a
different threat in Tamara Foods, supra. Thus, I find that
Kilar's conditional statement did not then terminate the
employees. Compare Teresa Coal Company, Inc., 259
NLRB 317 (1981), and Tamara Foods Inc., supra.
There is no question, on the record, however, that
Kilar's declared alternative demand to the employees
confirmed the employees in their intent to cease work
and led to the conversion of a short protected work
stoppage, Lewittes Furniture, supra, into a listing of fur-
ther economic and safety grievances and an economic
strike. This occurred when, after the walkout, the em-
ployees drew up their list of economic demands and re-
quests for changed working conditions out in the parking
lot (G.C. Exh. 2). It also led to their seeking aid from
the Union.
I further conclude, however, that on the following
day, July 29, the employees, through union agent Tom
Fair, as the General Counsel alleges, made an uncondi-
tional offer on behalf of the employees to return to work
when Fair repeatedly asked both Kilar and Smith, re-
gardless of whether Respondent would recognize the
Union as the employees' collective-bargaining agent,
whether Respondent was prepared to permit "these gen-
tlemen to return to work." The only response was that
Respondent would not permit them to return; that Re-
spondent's position was that the employees had "quit";
and that was Respondent's "position." Thus, notwith-
standing that Respondent had not terminated the em-
ployees on their way to punching out on the previous
day, it certainly left no room for doubt that they were
terminated when, on the next day (July 29), it refused to
permit them to return to work from an economic strike.
Redlands Christian Migrant Association, 250 NLRB 134,
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
142-143 (1980). Respondent's July 29 refusal to do so
manifested a termination of the undifferentiated group
for having engaged in a protected concerted work stop-
page and economic strike on July 28. Smith knew of the
employees' grievances and strike as early as Kuntz' tele-
phone call to him in the morning of July 28. To termi-
nate them for such a reason violates Section 8(a)(1) of
the Act. Tamara Foods, Inc., supra, and cases therein.
With regard to Respondent's defense that the employ-
ees "quit," the proof of such a defense rested primarily
on the anticipated testimony of Tom Kilar, Sr., Tom
Kilar, Jr., and Mildred Kilar. They were not produced.
Smith's testimony is mostly hearsay flowing from con-
versations with Tom Kilar, Sr., regarding the employees
punching out and retrieving their tools. Of itself, testimo-
ny that employees punched out and took their tools does
not establish a "quit" defense since they retrieved their
tools only after Kilar's refusal to permit them to return;
i.e., after they were discharged. To the extent Smith tes-
tified that he heard Nolf, by telephone, say that the em-
ployees "quit," I do not credit it. Here, as Perrotta credi-
bly testified, Perrotta told the employees that he was
going to stop work until he could get President Smith to
come down and talk to the employees about the prob-
lems they had. This does not manifest a desire to perma-
nently sever employment, Gasko & Meyer, Inc., 258
NLRB 349 (1981); nor is there even a threat to quit,
Empire Gas, Inc. of Denver, 254 NLRB 626 (1981); nor
did the employees remove their tools in the face of the
employer imploring them to remain in employment, Pink
Supply Corporation, 249 NLRB 674 (1980); nor is there
here any ambiguity created by the employees' walkout,
Pennypower Shopping News. Inc., 253 NLRB 85 (1980).
Rather, Respondent clearly was retaliatory against the
entire group, including Supervisor Perrotta, for engaging
in protected concerted activity. Interestingly, Respond-
ent's payroll records noted that the employees ceased
employment when they "walk out." No "quit" is record-
ed. The object of such a mass walkout is hardly the per-
manent severance of employment or evidence of a mass
"quit."'
Under the Board rule, employees who are unlawfully
discharged, as the instant employees, for having engaged
in a lawful strike are entitled to reinstatement and back-
pay from the date of the discharge (July 29, 1981) until
the date that they are offered reinstatement, Tamara
Foods, Inc., supra, 258 NLRB 1307, citing Abilities and
Goodwill, Inc., 241 NLRB 27 (1979), enforcement denied
on other grounds 612 F.2d 6 (lst Cir. 1979). They are
entitled to backpay and reinstatement even though they
do not offer unconditionally to return or to request rein-
statement since it is the employer who has acted unlaw-
fully in discharging them and the burden is on the em-
ployer to undo his unfair labor practices by offering im-
mediate reinstatement and reimbursement for all losses
is The General Counsel accurately cites Nyari Odette. Inc., 229 NLRB
137, 145 (1977), and Grismac Corporation, 205 NLRB 1108 (1973), to sup-
port this conclusion against a conclusion of a "quit." The evidence, based
on the remarks of Kilar Sr., also shows rather heated union animus. Since
the case was not presented on the theory of discrimination, I do not
reach the question whether Respondent refused reinstatement because it
feared the employees' association with the Union.
attributable to or flowing from the employer's unlawful
action until he offers full and lawful reinstatement. Abili-
ties and Goodwill Inc, supra. Here, of course, the em-
ployees, through Fair, offered unconditionally to return
to work on July 29 and they have been consistently re-
fused reinstatement, though there is work available for
them, on Respondent's theory that they all "quit." No
other defense was advanced.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(Xl1) of
the Act, I shall recommend to the Board that it order
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that on July 29, 1981, Respondent un-
lawfully discharged the six alleged discriminatees (five
employees and Supervisor Perrotta) and has thereafter
refused and failed to offer them full and immediate rein-
statement, I shall recommend that Respondent cease and
desist from such unlawful conduct and offer them full
and immediate reinstatement to their old jobs or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges. I shall also recommend that Respondent
make them whole for any loss of pay they may have suf-
fered, because of Respondent's unlawful conduct, by
payment to them of a sum equal to that which they
would have earned from the date of their discharges
until they are reinstated or receive valid offers of rein-
statement, less any net interim earnings. Backpay shall be
computed in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon to be computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). 1
I have no hesitation, under Board rule, in including
Supervisor Joseph Perrotta among the total of six per-
sons, five of whom are clearly employees, in this recom-
mended remedy notwithstanding that I have found him
to be a statutory supervisor, albeit of the lowest level.
Respondent's conduct demonstrates that its discharge of
the entire group, at one stroke, was a single retaliatory
act aimed at the employees engaging in protected con-
certed activity, the inclusion of Perrotta merely being
part of Respondent's coercive conduct against employ-
ees, aimed at the discouraging of their Section 7 rights.
Empire Gas, Inc. of Denver, 254 NLRB 626; Pennypower
Shopping News, Inc, supra, 253 NLRB at 86, fn. 1.14
Thus, Respondent has the right to discipline a supervi-
sor, including Perrotta, for disloyalty in engaging in
union activity. Any discipline, including discharge, rea-
sonably adapted to promoting an objective of insuring
supervisor discipline is privileged and goes beyond the
proscription of Section 8(aX1) of the Act. See for in-
stance: Stop and Go Foods Inc, 246 NLRB 1076 (1979);
L & S Enterprises Inc., 245 NLRB 1123 (1979). Where
supervisors are singled out for discipline because of their
's See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
"4 See, generally, Sheraton Puerto Rico Corp., 248 NLRB 867, and
Downslope Industries Inc., 246 NLRB 948 (1979).
776
SERENDIPPITY-UN-LTD.
disloyalty, the mere fact that employees may fear that a
similar fate might befall them if they engage in protected
concerted activity does not suffice to transform the em-
ployees' conduct into an unlawful restraint upon these
employees. DR W Corporation d/b/a Brothers Three Cabi-
nets, 248 NLRB 828 (1980), citing Nevis Industries, Inc.,
246 NLRB 1053 (1979). However, where, as here, the
record demonstrates that the employer's inclusion of the
supervisor in the general discharge of the employees was
motivated by and incidental to a desire to unlawfully dis-
courage statutorily protected activities among the em-
ployees, the employer's actions will be found to have ex-
ceeded the limits of legitimate conduct intended to dis-
courage participation in concerted activity by supervi-
sors. Empire Gas Inc. of Denver, 254 NLRB 626
(Member Penello, concurring).
CONCLUSIONS OF LAW
1. Respondent, Serendippity-Un-Ltd. and Tigerrr, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(aXl) of the Act on
July 29, 1981, by discharging employees Leroy Nolf,
Dan Kuntz, Gordon Parrish, Frank McCann, and Steven
Biskup and Supervisor Joseph Perrotta, because the
above employees engaged in a strike over working con-
ditions in Respondent's Hubbard, Ohio, plant.
3. The above unfair labor practice affects commerce
within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I hereby issue, pursuant to
Section 10(c) of the Act, as amended, the following rec-
ommended:
ORDER1 s
The Respondent, Serendippity-Un-Ltd. and Tigerrr,
Inc., Hubbard, Ohio, its officers, agents, successors, and
assigns, shall:
t1 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, onclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1. Cease and desist from:
(a) Discharging employees because they engage in pro-
tected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Leroy Nolf, Joseph Perrotta, Dan Kuntz,
Gordon Parrish, Frank McCann, and Steven Biskup im-
mediate and full reinstatement to their former jobs or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, dismissing if necessary any replace-
ments and make them whole for their loss of earnings,
with backpay to commence on July 29, 1981, with inter-
est thereon to be computed as described in that section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments, timecards, per-
sonnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Hubbard, Ohio, copies of the at-
tached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
1" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
777