Supreme Optical Co.

National Labor Relations Board - Board Decisions

May 5, 1978

235 N.L.R.B. 1432 (N.L.R.B. 1978)

DECISIONS OF NATIONAL
Supreme Optical Company, Inc. and Teamsters Local
Union No. 957, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 9-CA-
11023
May 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 3, 1977, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge, with additional rationale set forth below, 2 and
to adopt his recommended Order, except that the
remedy is modified so that the interest is to be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).3
We agree with the Administrative Law Judge that
the five employees were discharged for absence from
the plant after they had received permission for such
absence to engage in protected concerted activity.
Thus, as more fully set out by the Administrative
Law Judge, they had been granted permission by
their immediate supervisor to attend a hearing before
the Ohio Bureau of Unemployment Services upon
request of a discharged employee that they testify on
his behalf. After they had left the plant their
departure came to the attention of the foreman and
the general manager (Young); thereafter Young
rescinded the permission and when the employees
returned to the plant that afternoon they were
terminated because they had attended the unemploy-
ment hearing.
The crux of this case is whether the employees were
engaged in protected activities. While we agree with
his conclusion and concur in all respects, we deem it
I The 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
235 NLRB No. 193
necessary to explain more fully our reasons for so
finding.
The Respondent argues that employees who direct-
ly process claims against their employer or others
under governmental insurance-type programs are not
engaged in protected activity under Section 7 of the
Act, referring to two Board decisions, discussed
below, which it interprets as supporting this proposi-
tion. However, the cited decisions hold only that
such action by one employee alone is not protected,
and thus they have not been correctly interpreted. In
Hunt Tool Company, 192 NLRB 145 (1971), the
holding was that an action by a single employee in
filing a law suit against his employer under the
Federal workmen's compensation statute was not
protected because it was not in conjunction with
other employees and hence not "concerted." And in
Duqal, Ltd., 196 NLRB 511 (1972), the Board found
a violation by discrimination against an employee
based in part on the fact he engaged in union
activities; the Board did not comment or rely on the
Trial Examiner's holding that an individual employ-
ee's processing of a workmen's compensation claim
was not protected concerted activity within the
meaning of the Act. In any event, that case, unlike
the present one, involved the processing of an action
by one person, not in conjunction with any other
employee, and hence the Trial Examiner's holding
was like that in Hunt Tool Company, supra, which he
relied on. Thus, the holdings related to individual
action, not to the type of proceeding involved. In
contrast, the issue here is solely related to the nature
of the proceeding, i.e., whether clearly concerted
action was protected where taken in support of a
workmen's compensation claim by one dischargee.
It has long been recognized that this Board is
required to administer the Act with careful accom-
modation to the statutory scheme as a whole.4 It is
equally well settled that the matter of unemployment
compensation benefits arises out of the employment
relationship, as pointed out by the Administrative
Law Judge,5 and is one aspect of the national labor
policy.6 And, contrary to the Respondent's conten-
tion, it is immaterial whether the subject of employee
concerted activity is or is not directly related to their
own conditions of employment vis-a-vis their own
employer. For example, in cases too numerous to
cite, it has been held by both the Board and the
courts that a sympathy strike in support of employees
of another employer is protected concerted activity.
2 Member Jenkins is satisfied with the rationale of the Administrative
Law Judge's Decision and he adopts it in its entirety.
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4 E.g., Southern Steamship Company v. N. LR.B., 316 U.S. 31, 47 (1942).
5 Cf. Steward Machine Co. v. Davis, 301 U.S. 548 (1937).
6 See Meltzer, Bernard, "Labor Law, Cases, Materials, and Problems," at
pp. 29 and 36 (2d ed., 1977).
1432 LABOR RELATIONS BOARD
SUPREME OPTICAL COMPANY, INC.
Similarly, the appearance of employee representa-
tives before legislative committees has been held to
be protected concerted activity. 7 And in a recent case
somewhat analogous to the present one, the Board
held, and the Court of Appeals for the Fifth Circuit
affirmed, that distribution in nonwork areas of a
union circular, which related in part to the union's
opposition to a proposed state right-to-work law and
its position on the then pending Minimum Wage Bill,
was protected by the Act and the company's refusal
to permit distribution in nonworking time and
nonwork areas of the plant violated Section 8(a)(1) of
the Act.8
Considering the situation here before us in light of
the general principles and holdings of the many cases
cited and referred to above, it is patent that the
appearance of these employees at the unemployment
compensation hearing-for which they had received
permission in advance to leave work 9 -was clearly a
concerted activity which had some relationship to the
employment situation and was protected by the Act.
That this was so is even more apparent when it is
recalled that the hearing concerned a termination by
their own Employer and their testimony there might
well have been in conflict with that which the
Company presented.
As the Board has noted, "it is traditional for
employees to help each other and make common
cause so that 'each one of them assures himself, in
case his turn ever comes, of the support of the one
whom they are all then helping.' " Washington Forge
Inc., 188 NLRB 90, 97 (1971). While it is not likely
that this would be literally true in the instant case,
inasmuch as the one being helped was no longer an
employee and hence could not be in a position to
reciprocate to the five attending the hearing on his
behalf, it is true that if these five supported the
dischargee in this situation others would be more
likely to come to their support in the event any of
them were in a similar situation at any time in the
future. There can be no doubt, however, that these
individuals were engaged in concerted activity "for
the purpose of. . . their mutual aid or protection"
within the meaning of Section 7 of the Act.
In sum, it is clear, based on longstanding Board
and court precedent, that the concerted activity
involved herein was protected by Section 7 of the
Act. Accordingly, we fully agree with, and adopt, the
remedy recommended by the Administrative Law
Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Supreme Optical
Company, Inc., Franklin, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for that of the Admin-
istrative Law Judge.
7 Bethlehem Shipbuilding Corporation Limited v. N. LR.B., 114 F.2d 930,
937 (C.A. 1, 1940).
8 Easiex, Inc. v. N.LR.B., 550 F.2d 198, sec. II and cases cited in fn. 6
(C.A. 5, 1977), enfg. 215 NLRB 271 (1974), rehearing denied 556 F.2d 1280
(C.A. 5, 1977), cert. granted 434 U.S. 1045 (1978).
9 This is not to say that we would necessarily reach the same result if
advance permission to be absent had not been sought and secured, since a
balancing of the employee interest in protecting each other against the
employer's interest in efficiently operating his business is required and the
securing of permission is an important element in making the balance.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or interfere with,
restrain, or coerce employees in regard to hire or
tenure of employment, or any term or condition
of employment because of their protected con-
certed activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act
except to the extent that such rights may be
affected by lawful agreements in accordance with
Section 8(a)(3) of the Act.
WE WILL offer to Virginia Asbury, Gerea
Blankenship, Carolyn Hale, Nancy Keller, and
Judy Rhoades immediate and full reinstatement
to each's former position or, if such position no
longer exists, to a substantially equivalent posi-
tion, without prejudice to each's seniority or other
rights previously enjoyed, and make each whole
for any loss of pay or other benefits, plus interest,
suffered by reason of the discrimination against
each.
SUPREME OPTICAL
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor
Relations Act, as amended, came to hearing pursuant to
due notice on May 17, 1977, at Dayton, Ohio.
The charge was filed on February 3, 1977. The complaint
in this matter was issued on February 25, 1977. The issues
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concern whether Respondent has violated Section 8(aX1)
of the Act by discharging five employees because they
engaged in protected concerted activities within the mean-
ing of the Act.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by Respondent
and the General Counsel and have been considered.'
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Supreme Optical Company, Inc., the Respondent, an
Ohio corporation, is engaged in the manufacture of optical
products at its Franklin, Ohio, facility. During a 12-month
representative period, Respondent purchased and received
goods and materials valued in excess of $50,000, which
were shipped directly to its Franklin, Ohio, facility from
points outside the State of Ohio.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED 2
Teamsters Local Union No. 957, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is and has been at
all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues and Supervisory Status3
At all times material herein, the following persons were
employed by Respondent in the positions set opposite their
respective names and are and have been agents of Respon-
dent, acting on its behalf, and supervisors within the
meaning of Section 2(1 1) of the Act.
Dan Knox
Dave Carlton
Foreman
Supervisor
As indicated, I find that the credited aspects of the
testimony of witnesses Carlton, Rhoades, Blankenship, and
t On July 15, 1977, Respondent filed a motion to strike the General
Counsel's brief as constituting an unwarranted attack on Respondent's
counsel, as injecting new issues, and as referring to matter not of the record.
Considering all of the premises, I find that consideration of the issues and
arguments of counsel warrants a denial of such motion upon the basis that
the trier of fact, without a jury, ignores overstatements or arguments not
supported by evidence. The General Counsel's descriptive terminology, of
what Respondent's pleadings were tantamount to, is ignored and considered
to be an overstatement. Respondents' initial pleadings, however, do not
appear to comport with the requirements of the Board's Rules and
Regulations, Sec. 102.20 and 102.21 considered as a whole. Respondent's
counsel should govern himself aocordingly as regard to future pleadings. As
Keller establish that Carlton was a supervisor within the
meaning of Section 2(1 1) of the Act.
The issue is whether Carlton is a leadman without
supervisory authority or a supervisor with supervisory
authority within the meaning of Section 2(11) of the Act.
Carlton's credited testimony reveals that he drifted into a
position of leadman or of a supervisory type position by
assuming more duties and responsibilities and that his
foreman, Knox, used him more and more in such capacity
commencing about a year before the incident involved in
this proceeding.
There is no evidence or contention that Carlton hired or
fired, recommended hiring or firing, or had any attribute of
supervisory authority excepting in responsible direction of
work and in transferring employees from one job to
another in the department or area where he worked. The
facts are clear that, during the time immediately preceding
the crucial events in this proceeding, Carlton directed the
work of employees as to technical matters relating to work
on lenses, and other matters. The facts are also clear that
he exercised independent judgment in transferring employ-
ees from one job to another in his area of responsibility.
These facts alone are sufficient to establish that Carlton is
and was a supervisor and agent within the meaning of
Section 2(1 1) of the Act.
The facts are clear that on or about November 12, 1976,
the employees in the department where Carlton worked
were assembled and told in effect that Carlton would be
taking over as supervisor for the department, and that
Foreman Knox would be going on the road as a salesman.
Following this, it is clear that Carlton and Knox during the
next several weeks discussed jobs and problems relating to
Carlton's proposed place of operations. It is disputed as to
whether Knox was absent a great deal between November
12 and 30, 1976. It is not necessary to resolve such a
dispute, however. It is clear that the employees considered
that as long as Knox was there he had greater and more
controlling authority than Carlton.
Considering all of the foregoing, it is clear and I conclude
and find that Carlton was a supervisor and agent of
Respondent within the meaning of Section 2(11) of the Act.
B. Events of November 30, 1976
The General Counsel alleges that "on or about Novem-
ber 30, 1976, pursuant to permission granted by Respon-
dent, to leave work, the following named employees
appeared at a hearing before the Ohio Bureau of Unem-
ployment Services to testify on behalf of an employee
whose employment had been terminated by Respondent."
to the "new issues" argument, it was made clear at the hearing that the
issues would be those as alleged. "New issues" as regards the theory of the
alleged discharges simply have not been litigated and are not considered as
new issues. "New issues" as regards "new remedy" are not new issues in
such sense and are proper for consideration in the remedy aspects of the
case.
2 The facts are based upon stipulations by the parties and the pleadings
and admissions therein as amended at the hearing.
3 The facts relating to Knox's status are based upon stipulations by the
parties made at the hearing. The facts relating to Carlton's status are based
upon a composite of the credited aspects of the testimony of Carlton,
Rhoades, Blankenship, and Keller.
1434
SUPREME OPTICAL COMPANY, INC.
Virginia Asbury
Gerea Blankenship
Carolyn Hale
Nancy Keller
Judy Rhoades
Statements at the hearing narrowing issues reveal that
the facts as alleged are only disputed as to the question of
whether the named employees had received permission to
leave work to attend said hearing.
The Facts 4
On November 30, 1976, there was a scheduled hearing
before the Ohio Bureau of Unemployment Services con-
cerning a former employee of Respondent named Dale
Priest. This hearing was scheduled for 2 p.m. and all of the
employees involved in this proceeding knew that the
hearing was scheduled for 2 p.m. Prior to November 30,
1976, Dale Priest had asked Asbury, Blankenship, Hale,
Keller, and Rhoades to come to the unemployment hearing
and to testify. The employees, however, had not been
subpenaed as witnesses for the hearing.
On the morning of November 30, 1976, before starting
work, Asbury, Blankenship, Hale, Keller, and Rhoades
discussed the question of whether to go to the unemploy-
ment hearing that afternoon and as to what they should do
about receiving permission to go or not. The employees
decided to postpone final decision until lunchtime and that
Rhoades would act as spokesman if permission were to be
sought. 5
Foreman Knox was at work on the morning of Novem-
ber 30, 1976, and worked in close association at times with
some of the five employees who later went to the unem-
ployment hearing concerning Priest. None of the five
employees spoke to Knox about possible attendance at the
2 p.m. unemployment hearing.
Around noontime Asbury, Blankenship, Keller, Hale,
and Rhoades met at the timeclock and decided in finality
that they would attend the unemployment hearing that
afternoon. Rhoades and Blankenship proceeded to locate
Supervisor Carlton. Hale and Asbury followed close
behind as a part of the group. Keller did not follow as part
of the initial group.
Rhoades spoke to Carlton and asked for permission for
the group to go to the unemployment hearing. Carlton
asked Rhoades how many were going. Rhoades told
Carlton that there were five who wanted to go. Carlton
asked Rhoades if they had spoken to Foreman Knox.
Rhoades replied that no one had spoken to Knox. Carlton
stated that he had better ask Knox. Rhoades asked Carlton
in effect why Knox had to be asked. Rhoades asked
Carlton if he (Carlton) was the boss. Carlton replied that he
4 The facts are based upon a composite of the credited aspects of the
testimony of Carlton, Rhoades, Blankenship, Keller, Hale, and Hollen-
kamp. Based upon a consideration of the logical consistency of all facts, I
discredit the testimony of any witness inconsistent with the facts found.
5 Some of the cross-examination of Rhoades and others was directed
toward establishing that the employees had decided early in the morning to
go to the hearing and that the employees were trying to avoid seeking
permission from Knox. Considering all of the facts, and the logical
consistency of facts, I am persuaded that the employees truthfully testified
to the effect that their decision to go was not finally made until noontime.
was, but that if Knox were there he would have to ask him
about the matter.
Carlton left and looked for Knox. Carlton was unable to
locate Knox and returned to the group in a few minutes.
Carlton reported that he had been unable to locate Knox.
The conversation occurred as the group had commenced
moving toward the exit door. By this time Keller had
joined the group. Keller told Carlton that she had left
Foreman Knox in the lens room. Carlton told Keller that
he had been there but had not seen Knox.
Carlton asked Rhoades if Asbury, Hale, Keller, Blanken-
ship, and she were the five who were going to the hearing.
Rhoades replied that they were the ones.
Carlton asked Rhoades when they were planning to go.
Rhoades indicated that they were planning to go during the
lunch break, to testify during the lunch break, and return
so as to not miss much work. Carlton asked why they could
not wait until Knox showed up. Rhoades replied that they
had to go to lunch before going to the hearing. Carlton
asked why they could not go to lunch, return, and see
Knox around I p.m., before leaving.
Rhoades told Carlton that they needed to go during
lunchtime so they could have lunch, clean up, and change.6
Carlton asked Rhoades why they had to do this. Rhoades
replied that they were dirty and needed to clean up for the
hearing. Carlton told the employees that the hearing was
not conducted in a formal manner, that there might be one
to three hearings, and that if there were three hearings he
would have to testify. Rhoades continued to indicate that
the employees needed to clean up and change.
Carlton asked Rhoades if the Board had subpenaed her
to testify. Rhoades told Carlton that they had not been
subpenaed, that they probably could have been subpenaed,
that Priest had asked them to come and testify, and that
she was afraid (in the nature of belief) that they would be
subpenaed if they did not attend the hearing.
Carlton told the employees to go to the hearing and tell
the truth. Carlton asked the employees if they were going
to return to work and was told that they were.7
A few minutes after the five employees had left Respon-
dent's premises to go to the unemployment hearing,
Carlton saw Foreman Knox in President Young's office.
Present with Young and Knox was General Manager
Jenkins. Carlton reported that the five employees had left
to go to lunch and the unemployment hearing. Carlton was
asked to tell Young and Knox what was going on, what
had happened. Carlton related to Young and Knox his
version of what had happened. Carlton related in effect
that the Board had requested the employees to come to
testify and that he had given them permission to go during
Despite this, it is clear that the decisional thinking was close to sureness
early in the morning It is also apparent that part of the uncertainty that
remained was a reluctance to have a confrontation with Knox.
6 Carlton testified to the effect that Rhoades spoke about changing
clothes. The former employees testified that Rhoades spoke about changing
shoes. Considering the total facts of what occurred, I am persuaded that
Rhoades spoke about "changes" but not specifically about shoes or clothes.
I discredit the testimony of any witness inconsistent with the facts found.
7 It is noted that the normal lunch hour was from noon to 12:45 p.m.
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their lunch period to testify and to return as soon as they
could after the hearing.8
Young became upset at what Carlton had reported.
Young telephoned his attorney, Hollenkamp, between
12:15 and 12:30 p.m. Young asked attorney Hollenkamp
whether he had to permit five employees to have time off to
go to an unemployment hearing. Hollenkamp told Young
that he could not answer the question unless he had the
facts.
Hollenkamp asked questions, and Young set forth
answers thereto as to what he considered to be the facts. In
such discussion as ensued, Young related that the employ-
ees had been subpenaed. Hollenkamp indicated that this
was a matter that needed to be checked. Young indicated
that the employees had left and would not be returning,
that the matter could not be checked with them at the time.
Hollenkamp asked to speak to Grollemund who was going
to attend the hearing. Hollenkamp asked Grollemund to
check to see if the employees had been subpenaed. In the
discussion between Hollenkamp and Young, Young stated
that the employees constituted a third of his busiest
department and that this would cause him problems.
Young continued to press Hollenkamp for an answer as to
whether he had to permit the employees to attend the
hearing. Hollenkamp told Young that he needed other
facts, that he would come to the Company after lunch.
The five employees (Asbury, Blankenship, Hale, Keller,
and Rhoades) left Respondent's premises around 12:15,
and proceeded to a service station, stopped, cleaned up,
and some of the employees changed shoes. The employees
then proceeded from the service station to the site (in
Middleton) for the unemployment hearing for Priest. The
employees arrived at said hearing site around 12:45 p.m.
At the hearing site the employees waited until around I
p.m. and saw the person (South) who was assigned to
conduct the unemployment hearing concerning Priest. The
employees inquired as to whether they could give testimo-
ny concerning Priest at that time. South informed them in
effect that their testimony could not be given at that time
because the parties were not there, that their testimony
would have to be given after 2 p.m. 9 when the hearing was
scheduled and when the parties would be present. South
suggested that they could spend the time between I p.m.
and 2 p.m., browsing around in a nearby shopping center.
The employees followed South's suggestion and browsed
around the nearby shopping center. Prior to 2 p.m., the
employees returned to the hearing site.
The unemployment hearing for Priest was conducted on
November 30, 1976, commencing at 2 p.m., and concluding
around 2:30 p.m. The five employees (Asbury, Blanken-
ship, Keller, Hale, and Rhoades) gave testimony in the
proceeding. Present at the proceeding was Priest; present
for the Company at the proceeding were Foreman Knox
and Controller Grollemund. The five employees apparently
s Carlton was the only witness to testify regarding this conversation with
Knox and Young. His testimony was basically conclusionary and general.
Considering all of the facts, Hollenkamp's testimony that Young related
that the employees had been subpenaed, Carlton's testimony relating to the
effect that he was told that the Board had requested the employees to testify,
Carlton's testimony both denying and indicating that he gave permission to
employees to go to lunch when obviously such permission is not necessary,
and all of the facts, I am persuaded that Carlton told Young and Knox that
finished their testimony a short time before the hearing
concluded, stepped outside the hearing room for a few
seconds, waited until the conclusion of the hearing, and
talked to Priest for about 15 minutes after the hearing was
concluded. At no time before, during, or after the proceed-
ing did Knox or Grollemund speak to the five employees
and allude to their being present without permission or
allude to an urgent production need for arrangements for
their immediate return to Respondent's premises for work.
The five employees (Asbury, Hale, Keller, Blankenship,
and Rhoades) left the hearing site around 2:45 p.m., had
lunch, and returned to Respondent's premises around 3:50
p.m. At such time, the employees discovered that their
timecards had been pulled and were not in the timecard
rack.
Attorney Hollenkamp arrived at the Respondent's prem-
ises around 1:30 p.m. Hollenkamp and Young then had a
discussion about the events concerning the employees'
(Asbury, Blankenship, Hale, Keller, and Rhoades) atten-
dance at the unemployment hearing. Carlton was then
called into the office around 2 or 2:30 p.m. Present in the
office at this time were Hollenkamp, Young, Jenkins, and
Carlton. There then proceeded to be a combination of
questioning and discussion mainly centered on questioning
of Carlton by Hollenkamp. It is clear that the questioning
and discussion centered around what had transpired
between Carlton and the employees regarding the conver-
sation and reasons for the employees' leaving work and the
purpose of their attendance at the unemployment hearing.
Carlton was asked what he thought should be done. At
this point, some reference was made to the fact that the
Company had received a request for representation by the
Union on the day before. Carlton expressed his opinion
that he had mixed feelings, that he did not want the
Company to be hurt by the giving of testimony by the
employees at the unemployment hearing, that, however, he
thought they should have a chance to explain the situation.
Later, around 2:50 p.m., Grollemund and Knox returned
to Respondent's premises from the unemployment hearing.
Further discussion ensued, apparently among Young,
Knox, Jenkins, Grollemund, and Hollenkamp, concerning
the employees' leaving work and attending the unemploy-
ment hearing. Young, apparently around 3:30 p.m., decid-
ed to discharge Asbury, Blankenship, Hale, Keller, and
Rhoades.
Apparently, around 3:30 p.m., President Young instruct-
ed someone to pull the five employees' timecards. Young
then apparently instructed Foreman Knox to see that the
timecards had been pulled and to inform the employees
that they had been discharged. Young further stated that
he wanted to know when the employees returned from the
unemployment hearing.
the employees had told him that their testimony had been requested by the
Board and that he had given them permission to go because the employees
were going to go during their lunchtime and return after the hearing.
9 It is clear that the employees knew that the hearing was scheduled for 2
p.m. Despite this, I am persuaded that the employees mistakenly hoped or
believed that they might give testimony prior to the scheduled time in the
matter involved.
1436
SUPREME OPTICAL COMPANY, INC.
As has been previously set forth, the five employees
returned to Respondent's premises at 3:50 p.m., and
discovered that their timecards had been pulled.
Around this time someone informed President Young
that the five employees were back. President Young then
called General Manager Jenkins and told him to be present
with Foreman Knox when Knox told the employees that
they were discharged.
The five employees, after seeing that their timecards were
pulled, were told by several fellow employees that the
timecards had been pulled earlier.10 The five employees
then proceeded toward the exit from the building. Around
this time General Manager Jenkins and Supervisor Carlton
were in the vicinity of the five employees. Jenkins told the
employees that Foreman Knox wanted to see the employ-
ees in his office, one at a time. Carlton also apparently
reiterated the same message to one or more of the
employees."
Blankenship told Jenkins that the employees were all in
the matter together. At this point Asbury, Blankenship,
Hale, and Rhoades proceeded into Knox's office. At this
point Knox and Jenkins were in the office with the four
named employees.
Foreman Knox told the four named employees that they
had let him down, that the Employer had had to pull
people from other jobs to do their work. Knox asked
Rhoades why she had not asked him for permission.
Rhoades told Knox that she had thought that he would try
to stop them from attending the unemployment hearing.
Rhoades told Knox that he had refused to let Nancy Keller
have time off to have her daughter reinstated in school.
Knox stated that, as to this, Nancy Keller had changed her
mind. Foreman Knox stated that he had no alternative
except to discharge the employees. Before Knox made this
last statement, Keller had joined the other employees in the
room. Knox stated that the reason for the discharges was
because the employees had not had permission to leave
work to go to the unemployment hearing. Jenkins made a
similar statement. Blankenship told Knox and Jenkins that
the employees had had permission, that they should get
Carlton into the meeting. Blankenship started to the door
for the apparent purpose of getting Carlton to come into
the room. General Manager Jenkins was between Blanken-
ship and the door, and Blankenship construed that Jenkins
was blocking her exit and keeping her from going out the
door. Blankenship motioned to Carlton, who was on the
outside, to come into the office. Foreman Knox also
motioned to Carlton to come into the office. Following
this, Carlton entered the office.
General Manager Jenkins asked Carlton if he had given
permission to the employees to leave and go to the hearing.
Carlton replied that all he had done was to give the
employees permission to go to lunch. Keller told Jenkins
that Carlton had given them permission. Keller and
10 Rhoades, as an example, testified that two of the employees told her
that the timcards had been pulled shortly before 2 p.m. by President Young.
As to establishing when the timecards were pulled, such testimony is
hearsay. The General Counsel did not put any witnesses on who could
testify of their own knowledge as to when the timecards were pulled.
However, it is clear that the timecards had been pulled by 3:50 p.m.
I' For practical purposes, it may be said that all five employees were
Blankenship asked Carlton in effect to tell them when they
ever had to have permission to go to lunch. Carlton replied
that Rhoades had told him that they had been officially
requested to attend the unemployment hearing, that he had
no recourse, that he could not have physically stood in
their way. Rhoades then stated in effect that she had not
told Carlton that the employees had been officially request-
ed to go to the hearing. Jenkins told Carlton in effect that
he was not needed any longer, that he should leave.
Jenkins then told the five employees that nothing more
needed to be said, that the National Labor Relations Board
could not help them now.'2 Hale told Foreman Knox that
the employees had nothing against him or the Company,
that they had gone to the hearing to help Priest get his
unemployment pay. The employees then left the office.
After leaving the office, Hale and Blankenship went back
toward their work tables to get some belongings. General
Manager Jenkins appeared nearby and told Hale in effect
to leave the building immediately.
The department in which Asbury, Blankenship, Hale,
Keller, and Rhoades worked had approximately 15 em-
ployees. On November 30, 1976, the department was
behind in production. An attempt was made on the
afternoon of November 30, 1976, to meet production needs
by bringing in some employees from other departments
and by some work performed in the department by
General Manager Jenkins.
C. Contentions and Conclusions
The General Counsel alleges and contends that the five
employees had permission to attend an unemployment
hearing on November 30, 1976, that they engaged in
protected concerted activity by attendance at such unem-
ployment hearing, and that Respondent violated Section
8(a)(l) of the Act by discharging such employees because
they engaged in protected concerted activity. The Respon-
dent denies that the employees had permission to attend
the unemployment hearing, and denies that the discharge
of the employees was because they engaged in protected
concerted activity. Rather, the Respondent contends (I)
that the discharges were justified because the employees
did not have permission to leave work and attend the
unemployment hearing, (2) that the employees' leaving
work without permission created a production problem
justifying their discharges, and (3) that attendance at the
unemployment hearing was not protected concerted activi-
ty.
Considering all of the facts, I am persuaded and
conclude that the facts reveal that Respondent had given
permission for the employees to leave or be absent from
work to attend the unemployment hearing on November
30, 1976, that the employees' attendance at such hearing
constituted protected concerted activity,13 that the dis-
charges of the employees were because of their engaging in
together when they noted that their timecards were missing. The facts
indicate, however, that Keller may have been a little behind the others as the
events ensued.
12 The record reveals that a National Labor Relations Board representa-
tion petition had been filed a day or two before and that the matter was one
of common knowledge.
13 Respondent contends that employee attendance at the unemployment
(Continued)
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected concerted activities, that Respondent's produc-
tion problems were not of such a nature as to outweigh the
necessary accommodation of conflicting rights involving
the employees' right to engage in protected concerted
activity, and that such alleged economic reasons were not
the dominating reason for the discharges. It follows that
Respondent's discharges of Asbury, Hale, Blankenship,
Keller, and Rhoades, on November 30, 1976, because they
engaged in protected concerted activity, constituted con-
duct violative of Section 8(aX 1) of the Act.
In connection with and as a part of the following
consideration, I note the following.
1. The facts are clear that Respondent, by Supervisor
Carlton, granted the employees permission to be away
from work and to attend the unemployment hearing.
Carlton's remarks to Young and Knox, and attorney
Hollenkamp, and later to the employees, Jenkins, and
Knox, and in his testimony at the hearing, clearly reveal
that the employees' testimony concerning the granting of
permission was truthful. Thus, Carlton, in effect, when
confronted by his superiors, and at the hearing, attempted
to convey that he only gave the employees permission to go
to lunch, that he could not help doing what he did. His very
testimony makes it clear that he had given permission. It is
clear that permission was not needed by the employees to
go to lunch. I am persuaded that Carlton, after awareness
of President Young's unhappiness over the employees'
attendance at the unemployment hearing, attempted to
minimize the effect of what he had done and to justify the
same. In sum, it is clear that the employees had permission
to be away from work and attend the unemployment
hearing.
2. It is clear that President Young was unhappy over
the employees' planned attendance at the unemployment
hearing and so communicated to attorney Hollenkamp
that he was displeased and was seeking advice or rationali-
zation for a basis to discharge the employees for atten-
dance at the unemployment hearing.
3. The contended economic justification because of
production problems does not stand up under scrutiny. If
Respondent had such production problems or was really
concerned on that basis and was not engaged in a search
for a pretextuous reason for discharge, Foreman Knox
would have communicated such problem to the five
employees at the time of the unemployment hearing, and
arrangements would have been made to minimize the time
lost in attendance at the hearing.
Considering Carlton's and Hollenkamp's testimony of
what Carlton reported, it is obvious that President Young
would be aware that permission had been granted and that
Carlton was minimizing and justifying his actions. In sum,
the facts completely persuade that President Young was
aware that Carlton had granted the employees permission
hearing, to testify concerning the receipt of unemployment compensation
for a discharged employee, does not constitute protected concerted activity.
Thus, Respondent contends in effect that the employees' own wages and
working conditions are not affected. I reject such contention. Unemploy-
ment compensation benefits as a matter of law are related to employee
wages and working conditions. If an employee is terminated or laid off, such
employee is entitled to benefits of an insurance nature, depending upon
whether the termination or layoff is for cause or not. All employees in effect
have such benefit type insurance coverage. A major protection for
to be away from work and to attend the unemployment
hearing.
4. The conversation between President Young and
attorney Hollenkamp clearly reveals that President Young
was angry. If production were the real concern, it would
appear that the employees' services would have been
utilized for the remainder of the day on November 30,
1976, after they returned from the hearing.
In sum, the preponderance of the facts reveals that
Respondent, on November 30, 1976, discharged Asbury,
Hale, Blankenship, Keller, and Rhoades because they
engaged in protected concerted activity (attendance at an
unemployment hearing), and thereby engaged in conduct
violative of Section 8(a)(1) of the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that Respondent discharged Virgin-
ia Asbury, Gerea Blankenship, Carolyn Hale, Nancy
Keller, and Judy Rhoades in violation of Section 8(aX)(1) of
the Act, the recommended Order will provide that Respon-
dent offer each reinstatement to each's job, and make each
whole for loss of earnings or other benefits within the
meaning and in accord with the Board's decisions in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), except as
specifically modified by the wording of such recommended
Order.
The General Counsel in his brief requests the Board to
reexamine the amount of interest to be computed upon
backpay awards and to change the rate of computation of
interest on backpay from 6 percent to 9 percent. The
Board's policy on interest was announced in Isis Plumbing
& Heating Co., 138 NLRB 716. Despite past requests for
reexamination of the policy set forth in such case and the
announcement of new rates of interest on backpay, the
Board has not changed its policy. I am bound by current
Board policy and adhere to the standard remedy as set
forth in Isis. I would suggest that this type of issue is one
employees to see that their own unemployment benefits insurance is
meaningful is the willingness of fellow employees to be available to testify as
to the relevant issues. An employee who testifies for a discharged employee
as to such issues is in effect testifying in general support and protection of
his or her own potential benefits and encouraging other employees to be
potential witnesses. Thus, I find it clear that employee attendance at an
unemployment hearing is a protected concerted activity.
14 Cf. E.H. Limited, d/b/a Earringhouse Imports, 227 NLRB 1107 (1977).
1438
SUPREME OPTICAL COMPANY, INC.
that the General Counsel could seek by applying to the
Board for consideration under its rule making power rather
than seeking the same through Administrative Law Judges
who are bound by Board precedent.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Supreme Optical Company, Inc., the Respondent, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 957, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is, and has been
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(aX)() of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '5
The Respondent, Supreme Optical Company, Inc.,
Franklin, Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or interfering with, restraining, or coerc-
ing employees in regard to hire or tenure of employment,
I' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
or any term or condition of employment because of their
protected concerted activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Virginia Asbury, Gerea Blankenship, Caro-
lyn Hale, Nancy Keller, and Judy Rhoades immediate and
full reinstatement to each's former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to each's seniority or other
rights previously enjoyed, and make each whole for any
loss of pay or other benefits suffered by reason of the
interference, restraint, and coercion against each in the
manner described above in the section 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 payment records, timecards,
personnel records, and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at Respondent's manufacturing facility at Frank-
lin, Ohio, copies of the attached notice marked "Appen-
dix."' 6 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
16 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1439