Vemco, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1994

314 N.L.R.B. 1235 (N.L.R.B. 1994)

1235
314 NLRB No. 209
VEMCO, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. Thus, we perceive no evidence that the judge prejudged the
case, made prejudicial rulings, or demonstrated a bias against the
Respondent in his analysis or discussion of the evidence. Similarly,
there is no basis for finding that bias and prejudice exist merely be-
cause the judge resolved important factual conflicts in favor of the
General Counsel’s witnesses. NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949).
In adopting the judge’s crediting employee Anna McMurtry’s tes-
timony that she was directed not to distribute copies of the Novem-
ber 13, 1991 Certification of Representative on company property on
December 6, 1991, we have carefully reviewed the record, including
the memorandum prepared by Human Resources Manager David
Maxwell dated November 20, 1991, and find that the Respondent’s
evidence is insufficient to overcome the judge’s credibility resolution
in light of the other evidence supporting that finding, particularly
McMurtry’s consistent position that these events took place on De-
cember 6.
In adopting the judge’s credibility findings with respect to em-
ployee Kimberly Lucas, we find it unnecessary to rely on his state-
ment that her testimony reflected her gratitude to the Respondent for
past favors and that she was ‘‘in pari delicto’’ with the individuals
whom the Respondent discharged.
2 In adopting the judge’s finding that the April 20, 1992 walkout
by employees was protected, concerted activity, we rely also on
Mike Yurosek & Son, Inc., 310 NLRB 831 (1993). Member Cohen
finds it unnecessary to rely on that case and expresses no view con-
cerning it.
In adopting the judge’s finding that the complaint allegation that
the Respondent unlawfully promulgated an overbroad no-distribution
rule is not barred by Sec. 10(b), we find it unnecessary to pass on
the judge’s alternative finding that the allegation was sufficiently re-
lated to other charges filed against or then pending against the Re-
spondent.
We find it unnecessary to pass on the judge’s discussion of the
circumstances in which a walkout is protected by Sec. 502 of the
Act, since there is no claim that the walkout here is governed by
that provision.
3 We grant as unopposed the Respondent’s motion to correct the
transcript.
The Respondent has also requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
1 The Respondent was before the Board in an earlier case in which
it was charged with discharging a large number of employees for
union activities and in failing to recognize a union which had ob-
tained a card majority. The Board found violations in each of these
particulars but, on enforcement, the United States Court of Appeals
for the Sixth Circuit ruled that the employees in question were laid
off for economic reasons. Since the Union’s majority status was pre-
mised on authorization cards signed by these individuals, the court
then held that the majority status finding was invalid since, as dis-
charged employees, their cards could not be counted toward the
Union’s majority status. 304 NLRB 911 (1991), enfd. in part and
rev. in part 989 F.2d 1468 (6th Cir. 1993). Since the violations of
Sec. 8(a)(5) alleged in the instant case are predicated on a duty of
the Respondent herein to bargain, and since the existence of that
duty was dependent on the outcome of the earlier case, the General
Counsel has moved to sever that portion of this case pending final
disposition of the earlier case on appeal. The motion is granted. An-
other portion of the instant case, involving the discharge of Joan Gi-
rard in violation of Sec. 8(a)(3) of the Act, was dismissed by the
General Counsel at the hearing because of an out-of-Board settle-
ment.
2 The principal docket entries in this case are as follows:
Charge filed by International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of America, UAW,
AFL–CIO (Union) against the Respondent in Case 7–CA–32632, on
December 2, 1991; complaint issued against the Respondent in said
case by the Regional Director, Region 7, on January 16, 1992; Re-
spondent’s answer filed therein on January 30, 1992; charge filed by
the Union against the Respondent by the Union in Case 7–CA–
33311(2) on May 26, 1992, and amended on July 27, 1992; com-
plaint issued against the Respondent in said case on July 29, 1992;
Respondent’s answer filed on August 11, 1992; charge filed by the
Union against the Respondent in Case 7–CA–33839, on October 19,
1992; complaint issued against the Respondent in that case by the
Continued
Vemco, Inc. and International Union, United Auto-
mobile, Aerospace, and Agricultural Implement
Workers of America, UAW, AFL–CIO. Cases
7–CA–32632, 7–CA–33311(2), and 7–CA–33839
September 21, 1994
DECISION AND ORDER
By Members Stephens, Devaney, and Cohen
On July 14, 1993, Administrative Law Judge Walter
H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a brief in reply.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Vemco, Inc., Grand Blanc,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Linda R. Hammell, Esq., for the General Counsel.
Peter J. Kok, Esq. and Elizabeth M. McIntyre, Esq., of Grand
Rapids, Michigan, for the Respondent.
DECISION
I. FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case1 came on for hearing before me at Flint, Michigan, on
a consolidated unfair labor practice complaint,2 issued by the
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director, Region 7, on November 20, 1992, and order con-
solidating cases issued by the Regional Director, Region 7, on No-
vember 24, 1992; Respondent’s answer to complaint in Case 7–CA–
33839 filed on December 3, 1992; hearing held in Flint, Michigan,
before me on April 13–15, 1993; briefs filed with me by the General
Counsel and the Respondent on or before July 1, 1993.
3 Respondent admits and I find that it is a corporation maintaining
an office and place of business in Grand Blanc, Michigan, where it
is engaged in the manufacture and the nonretail sale and distribution
of plastic injected molded parts and related products for the auto-
mobile industry. In the course and conduct of this business, it annu-
ally purchases and receives at its Grand Blanc, Michigan facility di-
rectly from points and places outside the State of Michigan goods
valued in excess of $50,000. Accordingly, it is an employer engaged
in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act. The Union is a labor organization within the meaning of Sec.
2(5) of the Act.
4 Certain errors in the transcript have been noted and corrected.
5 Respondent’s posttrial motion that I recuse myself is denied.
6 In a response to the Board’s motion for a hearing before the
Sixth Circuit en banc, the court asked the Respondent for a state-
ment of position concerning the proper disposition of the pending
representation proceeding. The record in this case does not reflect
its response.
7 McMurtry is adamant that the events in question occurred on De-
cember 6, 1991, as alleged in the charge which was filed on May
26, 1992. The Respondent insists that these events occurred on No-
vember 20, 1991, just 6 days beyond the 10(b) period when meas-
ured by the charge filed in Case 7–CA–33311(2).
Regional Director of the Board’s Region 7, which alleges
that Respondent Vemco, Inc.3 violated Section 8(a)(1), (3),
and (5) of the Act. More particularly, the aspects of the con-
solidated complaint which were litigated in the hearing in
this case alleged that the Respondent instituted an overly
broad no-solicitation rule and that it disciplined three em-
ployees and discharged Beatrice Ellis and Gail Holland Cook
because they had engaged in concerted, protected activities,
namely, walking out of the plant to protest working condi-
tions. The Respondent denies the promulgation of an overly
broad no-solicitation rule, contends that the allegation relat-
ing to the rule is barred by limitations, and insists that indi-
viduals it disciplined and discharged were not engaged in
concerted protected activities when they walked out of the
Respondent’s plant on the morning of April 20, 1992. On
these contentions, the issues herein were drawn.4
B. The Unfair Labor Practices Alleged5
1. Background
Since 1988, the Respondent has operated a plant in Grand
Blanc, Michigan, in which it now employs between 300 and
350 employees. The Respondent supplies, among other
things, fascias and cladding to various automobile manufac-
turers. Fascias are plastic bumpers. Cladding is a plastic
ground-effects package used on the lower 13 inches of an
automobile to create a decorator look. The Respondent also
manufactures bezels and fillers, which are plastic items
placed around headlights and license plate holders on Cad-
illacs.
The initial Board litigation involving this Respondent
(Vemco I) dealt with a Board election conducted among the
Respondent’s production and maintenance employees on
September 22, 1989. The Union narrowly lost this election
when the tally excluded some 56 challenged ballots. Objec-
tions to its conduct were filed by the Union. The Union also
sought to achieve majority status on the basis of authoriza-
tion cards it had obtained earlier in 1989. As noted pre-
viously, the U.S. Court of Appeals denied enforcement of a
portion of the Board’s Order requiring the Respondent to
bargain on the basis of the authorization cards. In the Board
litigation, the objections to the election were sustained, the
challenged ballots were counted resulting in a Union victory,
and a certification was issued on December 13, 1991. How-
ever, this certification was premised on the eligibility of os-
tensibly prounion voters who ultimately were found by the
court to be ineligible because they had been lawfully dis-
charged before the election, so the certification was nec-
essarily invalidated. However, because of time factors in-
volved, a rerun election had not been conducted and final
disposition of the representation case was necessarily in
abeyance at the time of the hearing in this case.6
While rejecting the Board’s finding that the Respondent
herein violated Section 8(a)(3) of the Act by discharging 56
employees in a mass layoff, the court upheld the Board’s
finding that the Respondent had violated Section 8(a)(1) of
the Act in several particulars:
1. Threat to close the plant for noneconomic reasons in the
face of an organizing campaign and to reopen it later with
new employees.
2. Threat of harsher personnel decisions prompted by
union considerations.
3. A promise of benefit relating to the institution of recall
rights and advance notice of assigning overtime on week-
ends.
4. The confiscation of union literature.
5. An overly broad no-solicitation rule and threats of dis-
criminatory discharge involving employee Hall.
The court also expressed the opinion that these violations
of the Act would be sufficient to warrant the running of a
second election. Said violations necessarily constitute part of
the background against which the events in this case were
played out and evidence an on-going labor dispute which ex-
isted when the events of April 20 took place.
2. The no-solicitation rule
On November 13, 1991, the Regional Director for Region
7 issued a Certification of Representative establishing that
the Charging Party was the duly selected bargaining rep-
resentative of all the Respondent’s production and mainte-
nance employees who were employed at its Grand Blanc fa-
cility. The Certification of Representative was premised on
the results of the September 22, 1989 election. Two days
later, the Charging Party wrote the Respondent a letter in
which it demanded to bargain. Within the next 3 weeks—on
a date very much in dispute7—a prounion activist, Anna
McMurtry, employed in the Respondent’s assembly depart-
ment, obtained about 40 copies of the Certification of Rep-
resentative from the UAW and passed out some of them at
the plant. At the time in question, McMurtry was assigned
to the first shift which began work at 7 a.m. She handed out
these copies of the Board’s certification in the locker area,
a place where employees are given lockers in which they
store their personal items. She placed the remainder of the
papers on a table in the breakroom. In this area, employees
eat their lunches, take their breaks, and use vending ma-
1237VEMCO, INC.
8 Maxwell’s note of this meeting, while corroborating his testi-
mony as to the date, tends to support McMurtry’s assertion that
Maxwell gave her a verbal order containing a blanket prohibition
against distributing the Board’s certification anywhere in the plant.
9 Maxwell testified that, for holiday pay purposes, Easter Sunday
was designated a holiday. However, the Respondent’s personnel
handbook makes no mention of Easter Sunday. It designates Good
Friday as a company holiday. To qualify for holiday pay, an em-
ployee is required to work both the day before and the day after a
scheduled holiday, unless he is excused.
10 Lucas was part and parcel of the walkout which ensued. She ap-
peared at the hearing as a witness for the Respondent, despite the
fact that she was a discriminatee who had been formally rep-
rimanded. Her rambling, exculpatory testimony was an unconvincing
recital of the events in question. It obviously reflected her gratitude
to the Company for not discharging her while discharging others
who were in pari delicto, as well as gratitude for other favors be-
Continued
chines, refrigerators, and microwaves which are placed there
by the Respondent for employee convenience.
Later in the morning, she was summoned to the office of
David Maxwell, the Respondent’s human resources manager.
Maxwell told McMurtry that a witness reported to him that
she was handing out certification documents in the plant.
Murtry denied that she had been doing so. (She admitted in
her testimony that she had lied in making this denial and had
done so because she was in fear.) Maxwell repeated the
question, telling her to ‘‘take heed’’ if she did. I credit her
testimony to the effect that he went on to say that she could
hand the fliers out at Landon’s (a bar) on Holly Road (a pub-
lic thoroughfare) or at home but not on company property.
Shortly thereafter, the conversation ended and she returned to
her duties.8
3. The events of April 20, 1992, the reprimands of
Kimberly Lucas, Brian Cassidy, and Vanessa Walker,
and the discharges of Beatrice Ellis and Gail
Holland Cook
Not long before the events here in issue, the Respondent
instituted at its plant a management style described as syn-
chronous production. According to the components of this
program, groups of workers within the plant, sometimes re-
ferred to as cells, were empowered and were responsible for
making certain production decisions and achieving certain
production results. In the cell for the fascia rework area,
where all the discriminatees in this case were employed,
workers had to sign off on vacation requests submitted by
fellow employees in order to guarantee there would be
enough employees present during all shifts to operate the fas-
cia rework line. In effect, every employee had veto power
over another employee’s vacation. Employees were, within
stringent limits, empowered to make group decisions adjust-
ing shift starting times and other matters. Despite a conflict
in the testimony, arising largely out of a desire on the part
of some witnesses to escape responsibility for their own acts
and conduct, I find that the fascia rework cell, as with other
cells, elected a spokesperson whose job it was—and is—to
inform management personnel of group decisions. At the
time in question, employee Fran Metzger was the elected
spokesperson while discriminatee and Respondent witness
Kimberly Lucas, a former supervisor, was designated to fill
in for Metzger during her absences. During the week of
April 20, 1992, Metzger was on vacation.
The fascia rework assembly line is located in building 3-
A, abutting the main assembly building, designated as build-
ing 3. The two rooms are connected by two doors. The re-
work assembly line is approximately 40 feet long, nearly
oval in shape, and moves through an opening into an adja-
cent room as it revolves. It takes at least eight individuals
to man this line and more are preferred. Fascias—the front
bumpers of automobiles—are affixed to the line and held in
place by blocks as they move. Employees along the line sand
each fascia as it passes in order to remove blemishes. At the
end of the line, each fascia is inspected and then removed
and taken to the assembly line located in the adjacent build-
ing. The movement of the line is activated by a button on
the wall which is pressed to start it in motion.
On Thursday, April 16, the cell of the fascia rework area
was told that it had 8 hours of work to perform the following
Monday. Cell members voted to come to work at 5 a.m. so
that they could leave early in the afternoon. There is some
dispute whether their foreman was supposed to be informed
of this decision. There is no dispute that those who reported
to work at 5 a.m. and continued to work without leaving the
plant were paid for their time beginning at 5 a.m. However,
no supervisors arrived until 6 a.m.
Good Friday, April 17, was a scheduled holiday and no
portion of the plant worked.9 The Respondent took advantage
of the long Easter weekend to bring in a contractor to scrub,
shot blast, strip, clear coat, and paint the entire plant, except
for the fascia rework area, which had been painted 2 weeks
earlier. In order to clear the adjacent assembly area, racks,
boxes, and tables were removed to the fascia rework area,
where they were stacked on top of each other. Since the rest
of the plant, including areas through which fascia rework
employees had to walk in order to get to their worksite, had
been stripped and painted, sliding doors throughout the plant
had been left open and fans were operating at the corners of
these rooms in order to blow fumes to the center of the
rooms so they could be removed from the building by a fan
attached to an overhead vent.
Fascia rework employees were the only employees in the
plant who were scheduled to work on Monday, April 20.
When they arrived at the plant at 5 a.m. and went to their
worksite, they found that it was next to impossible to reach
the conveyor and impossible to operate it because racks and
boxes were stacked on top of each other which not only im-
peded their entry but also made it impossible for the con-
veyor to move. The fascia rework area hi-lo—a forklift used
to move racks, facias, and boxes to and from the conveyor—
was crammed among the items which had been piled in the
fascia rework area and could not be reached. It was also
imposslble to reach the button on the wall which activated
the conveyor.
Almost all the employees in the fascia rework cell who
were scheduled to work on April 20 arrived at the plant on
time. This number included four temporary employees who
had been hired from an outside labor contractor. In light of
the fact that it was impossible to start the conveyor and to
rework the fascias which were scheduled for production that
morning, they held a meeting among themselves to decide
what to do. Despite her protestations to the contrary, I find
that Kim Lucas10 led the discussion and was effectively in
charge of what occurred.
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stowed on her during her tenure with the Respondent. She sounded
like she was testifying from a trial brief rather than from her own
recollection of events as they transpired, so I discredit her testimony
insofar as it conflicts with any other evidence in the record.
11 Actually, the Respondent did not maintain conventional time-
clocks. Each employee recorded his or her own time and entered the
number of hours worked each day on an attendance sheet kept by
the supervisor in the fascia rework area.
12 Buczynski’s name was repeatedly misspelled in the record as
‘‘Brzezinski.’’
13 None of the four temporary employees who walked out of the
plant on April 20 ever returned. The firm for which they worked
was instructed by the Respondent not to send them back to the Re-
spondent’s plant.
I credit testimony to the effect that Lucas said to her fel-
low employees on this occasion that it was impossible to
work, that the area was unsafe, and that employees should
all go home. She invited other employees to express their
opinion. She was not alone in her evaluation of the situation.
I credit Cook’s testimony that everyone agreed with Lucas
except for employees who operated the hi-lo’s, namely,
George Ballard, Jason Murer, and Matt Griswald. During the
course of the ensuing discussion, which took 20 to 30 min-
utes, Ellis pulled out an employee handbook and began to
consult the section on safety. One employee, Jason Murer,
suggested that they phone a supervisor, but Lucas replied
that she did not have the phone number of any supervisors.
Gary Ballard said that it would be at least an hour before
the fascia rework area could be cleared out. His wife, Col-
leen Ballard, a witness summoned by the Respondent, testi-
fied that Ellis complained that the area was unsafe and that
some of the temporary employees complained about the
smell. Some employees, especially Lucas, were afraid that
they might get into trouble if they merely stood around and
did nothing while being on the clock.11
Mrs. Lucas obtained a sheet of lined paper which Ellis
tore out of a spiral notebook she carried with her. Lucas
passed it around and suggested that each employee present
sign it. Most did but a few did not. Murer complained in his
testimony that the leaders of the walkout movement were
‘‘trying to use others to put peer pressure on me to leave.’’
A sharp and nasty conflict in testimony arose concerning this
document. General Counsel witnesses testifed that General
Counsel’s Exhibit 9, now in evidence and containing the sig-
natures of 12 employees, was not the document which they
signed early in the morning of April 20. According to them,
Lucas wrote on the top of the paper which was circulated a
statement to the effect that employees were leaving because
their area was unsafe. The paper, after being completed, was
then given to Colleen Ballard, who took it to the human rela-
tions department and slipped it under the door because there
was no one present in the office to receive it in the early
morning hours. Reportedly, she then returned to where the
other employees were standing around and told them that
this is what she had done. General Counsel’s witnesses insist
that General Counsel’s Exhibit 9, which was obtained by
subpoena from the files of the Respondent, was an attend-
ance sheet which had been prepared for another earlier meet-
ing.
Respondent’s witnesses identified General Counsel’s Ex-
hibit 9 as the paper which was signed on the morning in
question. Twelve employees signed it and three then took a
black marker and obliterated their names. Two testified that
Lucas presented it to them for signature. According to them,
Colleen Ballard simply wrote the date on top of the paper,
along with numbers along the left-hand margin to designate
places for signatures, but made no other notation. She assert-
edly took the paper after it was completed and laid it on a
table but has no idea of what became of it thereafter. Re-
spondent’s witnesses referred to it as an attendance list which
the departing employees (and others) signed before the em-
ployees left the plant. It is not necessary to resolve this con-
flict relating to the nature and identity of the list in order to
resolve the issues in this case and I do not.
At about 5:45 a.m., nine employees, includlng four tem-
porary employees, walked out of the plant together. The reg-
ular employees who left were Cassidy, Lucas, Cook, Ellis,
and Vanessa Walker. Cassidy went home, Cook went to a
friend’s house, and the others, along with temporary em-
ployee Chris Walker, drove in their respective cars to Venus
Coney Island Restaurant, a nearby eating establishment, and
had breakfast. On their way out, they stopped at the guard
shack and signed a second list evidencing the fact that they
had been at work. The guard who manned this post was tem-
porarily absent and had left a note taped to the window or
door of the shack saying that he would be back shortly. I
credit corroborated testimony to the effect that they all
stopped at the guard shack while Mrs. Lucas signed her
name and the time on the paper taped to the shack, while
others affixed their signatures below hers. (In Cook’s words,
‘‘We left the note to cover our butt.’’) The paper in question
was not produced in response to the General Counsel’s sub-
poena and is not in evidence. The Respondent asserts that it
never received such a document.
At the restaurant, Lucas received a phone call from em-
ployee Lydia Buczynski.12 Buczynski, who had originally
planned to join the walkout, informed Lucas that she had
been warned about leaving by her supervisor, Scott Parker,
and was not going to join them at the restaurant. After fin-
ishing their meals, the regular employees who were at the
restaurant returned to the plant. An effort was made to reach
Cook but it was unsuccessful and she remained away from
the plant for the rest of the day, as did Cassidy. On returning
to the plants, Lucas and Ellis found that the hi-lo drivers
were in the process of removing the boxes, racks, and other
impediments surrounding the fascia rework line. Two hi-los
were required to remove an additional assembly line, which
had been stored in the fascia rework area, and to return it
to the regular assembly area. Two of the employees who had
remained in the plant were temporarily assigned by a super-
visor, Laurie Vukelich, to sand bezels and fillers. When the
fascia rework area was cleared and enough employees were
on hand to operate the rework conveyor,13 the operation
began and continued throughout an 8-hour shift. Instead of
leaving the plant at 1 p.m. as originally scheduled, the fascia
rework group worked until 2 p.m. or shortly thereafter.
On the following day, the entire plant was once again in
full production. Cook and Cassidy returned to work at their
regular starting hour. Either on Monday or on Tuesday, Max-
well called Walker, Lucas, and Cassidy into his office and,
in separate interviews, asked them what had happened. They
explained the condition of their work area when they arrived
the previous morning but, according to Respondent’s wit-
1239VEMCO, INC.
nesses, confessed error about walking out of the plant. Each
was given a reprimand which read:
X Written warning
Reason for record: Used poor judgment in leaving the
plant without authorization. If this happens again, dis-
ciplinary action will be taken up to and including dis-
charge.
During the morning of April 21, Cook was called into
Maxwell’s office for a disciplinary interview. Parker was
present on this occasion. The Respondent admits that it had
already decided to discharge her. The reason given for dis-
charging both Cook and Ellis, while three others who partici-
pated in the walkout were merely given written warnings,
was that both Cook and Ellis had been given warnings 2
weeks before for leaving the plant without authorization.
(The reference here was to an incident in which Ellis, who
suffers from asthma, became ill at the plant and was driven
to a hospital by Cook.) During her final interview, Maxwell
asked Cook what had happened on April 20. She replied that
the fascia rework area was a mess, that employees were un-
able to work, and that everyone thought it was unsafe. She
also complained about the fumes given off by the paint and
by the cleaning fluid which had been used to strip the floors.
She told Maxwell that they had left two notes in hopes that
this action would excuse their leaving. She mentioned one
note which was assertedly placed under the door in the
human resources office and another which had been taped to
the door of the guard shack. Maxwell informed Cook that
she was being discharged because she had been written up
just 2 weeks before for leaving the plant without authoriza-
tion. Cook objected, saying that she did not think it was fair
because, under the Company’s progressive discipline system,
a 3-day layoff would normally be the penalty for a second
offense. Maxwell disagreed, simply replying that manage-
ment thought that discharge was appropriate. A termination
slip which had already been prepared was tendered to her for
signature. She refused to sign and was then escorted out of
the plant by Parker.
Shortly thereafter, Ellis was summoned to Maxwell’s of-
fice and was also discharged. During her final interview,
Maxwell asked Ellis where she had gone the previous day
and who had gone with her. She replied that she had gone
to the Venus Coney Island Restaurant with Kim (Lucas),
Vanessa (Walker), and Chris (Walker). He asked why she
had gone and was told by Ellis that she did not think that
conditions around the fascia rework area were safe. She ex-
plained that the racks and boxes in the area made it unsafe,
mentioned that it was Kim’s idea to leave, and told him that
Kim had left a note which she thought was in the human re-
sources office. Maxwell asked Human Resources Manager
Kenny Brewer, who was present, if he had received such a
note. Brewer replied that he had not. Ellis also stated that an-
other note had been left at the guard shack. Maxwell pointed
out to her that she had been disciplined 2 weeks earlier for
leaving the plant without authorization and then informed her
that she was fired. As in the case of Cook, he tendered her
a prepared termination slip and asked for her signature. She
refused to sign and said that she was going to appeal her dis-
charge to higher authority at the plant because she did not
think it was fair. At this point, she left the office and was
escorted from the plant.
C. Analysis and Conclusions
1. The overly broad no-distribution rule
The Respondent’s personnel handbook contains a no-solic-
itation, no-distribution rule which has sufficient exceptions to
allow it to pass muster under the Act, and no challenge to
those rules, as written, has been leveled in this case. How-
ever, the existence of a valid, written rule does not preclude
a finding of an invalid and illegal restriction which may have
been superimposed by a particular supervisor upon a par-
ticular employee or group of employees. In Vemco I, the Re-
spondent was found guilty of violating Section 8(a)(1) of the
Act by virtue of a statement made by a supervisor to a group
of her employees that she was tired of hearing about unions
and that, ‘‘if these rumors don’t stop,’’ verbal warnings to
employees would be issued. The Board concluded that this
statement amounted to a flat, unqualified prohibition against
talking about unions at any time in the plant in violation of
the Act. Its conclusion was upheld by the Sixth Circuit on
appeal without comment.
In this case, I have found as a fact that Maxwell told
McMurtry that she could hand out union literature at a near-
by bar, on a public thoroughfare, or at her home but she
could not do so at the plant. Such a prohibition is overly
broad, in that it forbids even the distribution of such lit-
erature in nonworking areas on the employee’s own time. I
also credit her testimony that the interview during which this
remark was made took place on December 6 within the 10(b)
period, as defined by the charge in Case 7–CA–33311(2).
However, even if this were not true, a remark of the kind
and character as the one made by Maxwell could still be
reached by the Board’s processes if it had been made on No-
vember 20. The Respondent contends that the Board is pre-
cluded from prosecuting such a statement because an unfair
labor practice charge specifically addressed to that alleged
violation was not filed until 6 months after the statute of lim-
itations had run. However, there are other unfair labor prac-
tice charges outstanding against the Respondent which do not
suffer from this alleged infirmity.
Assuming arguendo that Maxwell’s offending remark was
made on November 20, it should be noted that one of the
three charges which were part of this case, as originally con-
solidated, was filed on December 2, within 2 weeks after the
interview as recited in Maxwell’s account of the events.
While this charge was addressed to violations of Section
8(a)(1) and (5) of the Act, it dealt with the same course of
conduct as the events particularized in the Complaint relating
to Maxwell’s statement. Moreover, there was also outstand-
ing on November 20, 1991, other charges in Vemco I which
specifically addressed the question of overly broad no-solici-
tation and no-distribution rules. Indeed, one such charge had
matured into a Board order which was then undergoing court
review. The Supreme Court held in NLRB v. Fant Milling
Co., 360 U.S. 301 (1960), that once a charge has been filed,
the Board is not limited to prosecuting only those violations
which have occurred before the filing date but may, on the
strength of the charge, issue a complaint addressed to unfair
practices occurring subsequent to the filing date. The charges
in Case 7–CA–32632 and those filed in Vemco I are surely
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
broad enough and timely enough to bring within their ambit
the statment which Maxwell made to McMurtry, regardless
of when it was made. Accordingly, I find that, by imposing
on McMurtry an overly broad no-distribution rule, the Re-
spondent herein violated Section 8(a)(1) of the Act.
2. The discipline and discharges arising out of the
April 20 walkout
It is axiomatic that the Act authorizes employees to engage
in concerted, protected activities and shields those employees
from either discipline or discharge arising out of those activi-
ties. In ascertaining whether the walkout of April 20 is enti-
tled to such treatment, an inquiry must be made as to wheth-
er they were both ‘‘concerted’’ and ‘‘protected.’’
It is undisputed on this record that nine individuals, five
of them directly employed by the Respondent, walked out of
the plant early in the morning of April 20 after first dis-
cussing at some length what course of action they should
take when confronted by the disarray at their worksite. They
left together and went their separate ways only after leaving
the plant. Maxwell admitted in his testimony that the dis-
ciplined employees had taken group action, as indeed the
facts of the situation would require him to do. The only other
remaining question is whether their group action was pro-
tected.
Respondent’s counsel admits that the condition of the fas-
cia rework area early in the morning of April 20 was some-
thing other than what it ought to be. A contractor who had
been in the plant throughout the Easter weekend had relo-
cated a conveyor and a room full of boxes and racks in order
to strip and paint the adjacent assembly area. In so doing,
he put some of this material in a nearby warehouse and
stacked the rest in such a manner that it was literally impos-
sible for fascia rework employees to do their assigned job
when they arrived at the plant. Because of the experiment in
industrial democracy in which this Respondent was then en-
gaged, there were no supervisors around to give them an al-
ternative assignment so they were left to their own devices.
Some, although not all, of those present decided to walk out.
In the view of the Respondent, they had a more responsible
choice before them which they should have made. Granted
that they could not have started the fascia rework assembly
line and that the line could not have moved, even if someone
could have reached the button which starts the line in mo-
tion, in the Respondent’s view the employees could have
busied themselves with other chores, such as cleaning out the
latrines, polishing up the tables in the breakroom, or sanding
bezels and fillers. Five of them did not exercise the choice
to stay and work and so they were punished. This argument
is but another way of saying that their response to the unsu-
pervised situation at hand was not a reasonable response so
the Respondent was justified in reacting as it did.
As the Supreme Court pointed out long ago in NLRB v.
Washington Aluminum Co., 370 U.S. 9 at 16 (1962), ‘‘it has
long been settled that the reasonableness of workers’ deci-
sions to engage in concerted activity is irrelevant to the de-
termination whether a labor dispute exists or not.’’ Employ-
ees who go on strike always have an alternative to striking.
If they are expected, under the law, always to exercise their
alternative option, there would never be a strike. This is not
what the Act requires. The situtation presented in this case
should not be confused with cases arising under Section 502
of the Labor Management Relations Act, which permits ‘‘the
quitting of labor by an employee or employees in good faith
because of abnormally dangerous conditions for work at the
place of employment.’’ Such cases, which call on the Board
to determine whether working conditions prompting a walk-
out were merely ‘‘dangerous’’ or whether they present an
‘‘abnormally dangerous’’ situation normally arise where em-
ployees, who are represented by a union and who are cov-
ered by a collective-bargaining agreement containing a no-
strike clause, are faced with a serious emergency situation
which requires an immediate and drastic response. In such
instances, abnormally dangerous conditions, as defined in the
Act and interpreted by the Board, may justify a walkout
which, under other circumstances, might well violate a no-
strike clause in a contract and leave concerted activity unpro-
tected. See Combustion Engineering, 224 NLRB 542 (1976).
There is no such contract or no-strike clause in this case. In-
deed, to invoke the protection of Section 7 of the Act, it is
not necessary that the protested working condition even be
regarded as dangerous. A protest aimed at chaotic working
conditions, even if not dangerous, is protected activity since
such a walkout has ‘‘a reasonable relationship to the employ-
ees’ legitimate interest in their working conditions.’’ Blue
Star Knitting, 216 NLRB 312 at 316 (1975); Ontario Knife
Co., 247 NLRB 1289 (1980); Marlene Industries Corp., 255
NLRB 1446 at 1462 (1981).
The situation in which the discriminatees found themselves
on the morning of April 20 closely approximates the situa-
tion addressed in Washington Aluminum, supra at 13 and 14,
in which the Supreme Court stated:
In denying enforcement of this order, the majority of
the Court of Appeals [for the Fourth Circuit] took the
position that because the workers simply ‘‘summarily
left their place of employment’’ without affording the
company an ‘‘opportunity to avoid the work stoppage
by granting a concession to a demand,’’ their walkout
did not amount to a concerted activity protected by § 7
of the Act. On this basis, they held that there was no
justification for the conduct of the workers in violating
the established rules of the plant by leaving their jobs
without permission and that the Board had therefore ex-
ceeded its power in issuing the order involved here be-
cause § 10(c) declares that the Board shall not require
reinstatement or back pay for an employee whom an
employer has suspended or discharged ‘‘for cause.’’
We cannot agree that employees necessarily lose their
right to engage in concerted activities under § 7 merely
because they do not present a specific demand upon
their employer to remedy a condition they find objec-
tionable. The language of § 7 is broad enough to protect
concerted activities whether they take place before,
after, or at the same time such a demand is made. To
compel the Board to interpret and apply that language
in the niggardly fashion suggested by the respondent
here would only tend to frustrate the policy of the Act
to protect the right of workers to act together to better
their working conditions. Indeed, as indicated by this
very case, such an interpretation would effectively nul-
lify the right to engage in concerted activities which
that section protects.
1241VEMCO, INC.
14 In advancing this contention, the Respondent makes much of the
fact that four of the strikers went to breakfast together after they left
the plant. Two others did not. The fact that, after leaving the plant,
strikers ate breakfast, went home, or visited friends is of no con-
sequence. Having left the plant, they had to go somewhere. Their
right to take the action they did depends upon facts and cir-
cumstances which existed before they left the plant and had com-
mitted the alleged violation of company rules for which they were
disciplined.
Before concerted activities become protected, it is not nec-
essary that all employees in a plant, a bargaining unit, or a
group join in those activities. The fact that there may be dis-
sent does not destroy the rights of those who decide to take
concerted action. Jasper Seating Co., 285 NLRB 550 (1987),
enfd. 857 F.2d 419 (7th Cir. 1988). Concerted activities do
not become unprotected because employees who decide to
strike have failed to submit themselves to a noncontractual
company-imposed grievance resolution or ‘‘open-door’’ pro-
cedure. Advance Industries, 220 NLRB 431 (1975), rev. in
part 540 F.2d 878 (7th Cir. 1976). To avoid discipline or dis-
charge for engaging in concerted, protected activities, it is
not necessary that the employer know that the employee ac-
tivities prompting its discipline or discharge were either con-
certed or protected. Scioto Coca-Cola Bottling Co., 251
NLRB 766 (1980). Ignorance of the concerted, protected na-
ture of a job action will not shield an employer from a find-
ing of an unfair labor practice, nor is there any requirement
that protesters give their employer a specific demand as to
the nature of their grievance. Eaton Warehousing Co., 297
NLRB 958 (1990). All that Section 7 requires is that the job
action in question be taken by agreement of the affected em-
ployees, however spontaneous and casual that agreement
might be, and that the action be prompted by a work-related
problem. Vic Tanny International, 232 NLRB 353 (1977),
enfd. 622 F.2d 237 (6th Cir. 1980). Ignorance or mistake will
not shield an employer from a finding of an unfair labor
practice, even where there is a good faith but incorrect belief
that employees had engaged in misconduct during the com-
mission of protected activities. Shell Oil Co., 226 NLRB
1193 (1976).
If there is some objective basis for a claim by striking em-
ployees that there was a safety hazard at the plant which
prompted their strike, this is sufficient to provide protection
for such activity under Section 7 of the Act. In this case,
there is little doubt that access to the employees’ regular
work station was blocked by boxes, racks, and other impedi-
ments which had been stacked there by a painting contractor.
At least three employees, if one includes Lucas, vocally stat-
ed at the time or on the witness stand that the area was un-
safe. Cook said one would have to snake his or her way
through boxes and racks to reach the assembly area. Ellis,
who is 4 feet 11 inches tall, felt that the piling of boxes 15–
20 feet high posed a safety problem. Others might disagree
with their assessment of the situation but all that such dis-
agreement does is place in issue the reasonableness of their
fears, a question which the Washington Aluminum doctrine
precludes the Board from resolving. Moreover, even if the
situtation which confronted these employees on April 20 was
merely inconvenient and not hazardous, the inconvenience of
their access to the assembly area would be a sufficient basis
for determining that a labor dispute, within the meaning of
Section 2(9), had arisen and that the walkout which ensued
was protected.
With regard to the noxious fumes which Ellis complained
about, there is no question but that, during the preceeding 48
hours, various areas of the plant had been stripped and paint-
ed. Doors had been left open, floor fans had been placed in
corners of rooms which had been painted, and fans were
blowing fumes to the center where they could be removed
by overhead fans next to a vent. Whether the fumes which
the Respondent was obviously trying to remove from the
plant were noxious or trivial is basically a question of opin-
ion. Just as beauty is in the eye of the beholder, so the de-
bilitating character of paint and cleaning fumes is subjective
in character. To Ellis, who suffers from asthma and who had
been taken to the hospital 2 weeks before because of illness
occasioned by noxious odors in the plant, the condition of
the air in the plant was physically threatening. To other em-
ployees it may have been of little or no consequence, but
here again such a dispute draws into question the reasonable-
ness of the walkout and places the question beyond the pur-
view of the Board.
The last string in the Respondent’s bow is that the walkout
in question did not arise over a sincere grievance and was
not really prompted by concerns over safety or air pollution
but stemmed from the unhappiness on the part of several fas-
cia rework employees over the fact that they had been called
in to work on Easter Monday while the balance of the plant
was enjoying the benefit of a long weekend. Such a conten-
tion, even if factually founded,14 would not benefit the Re-
spondent. The Board does not inquire into a protester’s sin-
cerity and must limit its examination to determine whether
there is any rational foundation for the protest. However,
even such an inquiry in this case would not change the re-
sults. A strike to protest the refusal of an employer to grant
a holiday is as much a labor dispute under Section 2(9) of
the Act as is a strike over plant safety or air pollution issues.
It is equally entitled to the protection of Section 7 of the Act.
However, I do not believe that the grievance which was as-
serted to justify the walkout of April 20 was pretextual. Ac-
cordingly, I find that, by writing up Kimberly Lucas, Brian
Cassidy, and Vanessa Walker and by discharging Beatrice
Ellis, Gail Holland Cook, and the four temporary employees
because they had engaged in concerted, protected activities,
the Respondent herein violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Vemco, Inc. is now and at all times material herein has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By verbally imposing upon employees an overly broad
no-distribution rule; by issuing written reprimands to Kim-
berly Lucas, Brian Cassidy, and Vanessa Walker; and by dis-
charging Beatrice Ellis, Gail Holland Cook, and the four
temporary employees because they engaged in concerted,
protected activities, the Respondent violated Section 8(a)(1)
of the Act. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Some employees who were disciplined but not discharged were
denied holiday pay, even though they had worked a full shift on
April 20, because they had engaged in the protected walkout. They
are entitled to this compensation, nominal though it may be.
15 F. W. Woolworth Co., 90 NLRB 289 (1950).
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
17 If 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.’’
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Since the violations of the Act found
herein and in Vemco I are repeated and pervasive and evi-
dence on the part of this Respondent an attitude of total dis-
regard for its statutory obligations and the rights of its em-
ployees, I will recommend to the Board a so-called broad
8(a)(1) remedy designed to suppress any and all violations of
that section of the Act. Hickmott Foods, 242 NLRB 1357
(1979). The recommended order will also provide that the
Respondent be required to offer full and immediate reinstate-
ment to Beatrice Ellis and to Gail Holland Cook to their
former or substantially equivalent employment, and that it
make them and other discriminatees whole15 for any loss of
earnings which they have sustained by reason of the dis-
criminations practiced against them, in accordance with the
Woolworth formula,16 with interest thereon computed at the
rate prescribed by the Tax Reform Act of 1986 for the over-
payment and underpayment of income tax. New Horizons for
the Retarded, 283 NLRB 1173 (1987). The recommended
Order will also require the Respondent to expunge from the
personnel files of these employees any unlawful disciplinary
actions which are recited therein and will further require the
Respondent to notify those employees whose files are being
expunged that such actions have taken place and that the in-
fractions formerly noted will not be used as the basis for fu-
ture discipline. It will further require the Respondent to no-
tify the labor contractor who provided the services of the
temporary employees who were discharged that it has no ob-
jection to their employment at the plant. I will also rec-
ommend that the Respondent be required to post the usual
notice advising its employees of their rights and of the re-
sults in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Vemco, Inc., its officers, agents, super-
visors, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating or enforcing a no-distribution rule which
forbids employees from distributing literature in nonworking
areas on nonworking time.
(b) Discharging or disciplining employees because they
have engaged in concerted, protected activities.
(c) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Beatrice Ellis and to Gail Holland Cook full
and immediate reinstatement to their former or substantially
equivalent employment, without prejudice to their seniority
or to other rights previously enjoyed, and make them and
other unlawfully disciplined employees whole for any loss of
pay or benefits suffered by them by reason of the unfair
labor practices found herein, in the manner described above
in the remedy section, and make whole the temporary em-
ployees who were removed from its plant for any loss of pay
or benefits suffered by them by reason of the unfair labor
practices found herein, with interest.
(b) Remove from its files any reference to unlawful dis-
charges or unlawful discipline and notify employees in writ-
ing that this has been done and that the discharges or dis-
cipline will not be used against them in any way.
(c) Notify the labor contractor who supplied the services
of the four temporary employees who were removed from its
plant that the Respondent has no objection to their referral
for work at its plant.
(d) Preserve and, on request, make available to the Board
and its agents for examination and copying all payroll and
other records necessary to analyze the amounts of backpay
due under the terms of this Order.
(e) Post at the Respondent’s Grand Blanc, Michigan, plant
copies of the attached notice marked ‘‘Appendix.’’17 Copies
of the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt thereof and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Vemco, Inc. is posting this notice to comply with an Order
of the National Labor Relations Board, which was issued
after a hearing in this case in which we were found to have
violated certain provisions of the National Labor Relations
Act.
WE WILL NOT impose or enforce a no-distribution rule
which prohibits employees from distributing literature in
nonworking areas in nonworking time.
1243VEMCO, INC.
WE WILL NOT discipline or discharge employees because
they have engaged in concerted, protected activities.
WE WILL NOT by any other means or in any other manner
interfere with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
WE WILL offer to Beatrice Ellis and to Gail Holland Cook
full and immediate reinstatement to their former or substan-
tially equivalent employment, without prejudice to their se-
niority or to other rights previously enjoyed, and WE WILL
make them and other employees who were unlawfully dis-
ciplined whole for any loss of pay or benefits suffered by
them by reason of the unfair labor practices found in this
case, with interest, and WE WILL make whole the temporary
employees who were removed from the plant by reason of
the unfair labor practices found in this case, with interest.
WE WILL remove from our files any references to unlawful
discharges and unlawful disciplinary actions and notify the
employees who received such discharges and disciplinary ac-
tions that this has been done and that the discharges and dis-
ciplinary actions will not be used against them in any way.
WE WILL notify the labor contractor who supplied the
services of the four temporary employees who were removed
from the plant as a result of the unfair labor practices found
herein that we have no objection to their referral for work
at the plant.
VEMCO, INC.