Pink Supply Corp.

674 PINK SUPPLY CORPORATION Pink Supply Corporation and Kathy Block, Mary Riffe, Nancy Lilledahl, and Marlene Egge. Case 18-CA-6008 May 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 25, 1979, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, General Counsel and counsel for the Individuals filed exceptions and supporting briefs, and Respondent filed a brief in support of the Administrative Law Judge's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and hasdecided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. Chairman Fanning's dissent, relying in part on discredited testimony, in our view does disservice to the findings of the Administrative Law Judge and to the conclusions he drew from them. The Administrative Law Judge found, in essence, that the General Counsel failed to establish by a pre- ponderance of the credible evidence a prima facie case that the alleged discriminatees were dis- charged. The credited testimony left the parties in a situation where Respondent told the employees' spokesman that, because it needed people to do their work (while they engaged in a concerted re- fusal to work), it would "have to act as though [they] were quitting and find replacements." When the spokesman denied that they were quitting, Re- spondent asked, "Well, what do you call it? What am I supposed to do?" To these questions there was no response, except that Block volunteered that the employees would come in to clean out their desks, and they did so the next day. Again, the credited testimony negates any attribution to Respondent of the decision that they clean out their desks. I It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950) enfd I188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings We hereb) correct, however, the Administrative Law Judge's next-to- last reference to "Wernick" in the penultimate paragraph of sec II B, "Discussions and Conclusions," of his Decision. The reference should be to "Block." 249 NLRB No. 91 The Administrative Law Judge concluded that the events so summarized fall short of a discharge. Chairman Fanning argues that this conclusion rep- resents a viewing of the events through Respond- ent's eyes instead of the employees' eyes. We agree that the Board must attempt to view the events as the employees reasonably would have, but we think the Administrative Law Judge has properly done so by analyzing the words spoken in light of the circumstances known to the employees. This is not a case where an ambiguity was cre- ated by Respondent's wrongdoing and where, con- sequently, the burden of the results of that ambigu- ity must fall on it. While the whole situation may have put the employees in some doubt as to their status, we see no basis in the credited evidence for charging Respondent with any heavier responsibili- ty for the uncertainty than is attributable to the employees themselves. The conversation taken as a whole did not, as we attempt to view it through the employees' eyes, present anything like an un- equivocal refusal by Respondent to permit them to return to work. The situation certainly did not make further inquiries into Respondent's intentions futile, as Chairman Fanning suggests. At worst it created an uncertainty that each party was equally well equipped to rectify. In these circumstances we agree with the Administrative Law Judge that the General Counsel has not met his burden of proof. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CHAIRMAN FANNING, dissenting: The Administrative Law Judge dismissed the complaint alleging Respondent violated Section 8(a)(1) of the Act by discharging employees Riffe, Lilledahl, and Egge and Supervisor Block (herein called the design consultants) for engaging in pro- tected concerted activity on the grounds that they were not discharged but quit. The General Counsel excepts, contending that, even accepting the Ad- ministrative Law Judge's credibility findings, it is clear that the design consultants did not quit but reasonably believed they had been discharged. 2 In passing, we note that the Chairman's discussion of Supervisor Block's right to reinstatement is premised on the assumption that Block was dis.:harged. Since the record supports the Administrative Law Judge's conclusion that there is no reasonable basis for finding that anyone was discharged, we find it unnecessary to comment on the Chair- man's analysis of Block's situation 614 PINK SUPPLY CORPORATION PINK SUPPLY CORPORATION 675 On June 21, 1978, the design consultants decided that in order to protest their low pay and other work grievances they would all call Respondent's facility on June 22, and advise they would not be in to work. They also designated Block as their spokesman to arrange a group meeting with man- agement on June 23 to discuss their grievances. By 9:30 a.m. on June 22, after they had all called in as planned, General Manager Spahn found out what was happening and called Block who requested Spahn and Vice President Wernick meet with the design consultants to discuss their grievances. The Administrative Law Judge discredited Block's testimony which would have established that they were, in fact, discharged. Rather, he credited Wernick even though he noted Wernick had no idea of the chronological order of the period of time in which the various telephone calls which constitute the facts occurred. Nonetheless, accepting the credibility findings, it is clear that Wernick in his telephone conversations with Block which began at or about I p.m. said he would not meet with the design consultants as a group; sometime in an early conversation he asked them to return to work; and he also told Block he was looking for their replacements and had already contacted the University of Minnesota and a pri- vate employment agency in this regard.3 The Administrative Law Judge found, based on Wernick's testimony, that the incident ended at or about 4 p.m. when Block insisted Wernick meet with the group at 8 a.m. the next morning (one-half hour before work started) to discuss the situation. Wernick, who had refused throughout the conver- sation to meet with the design consultants as a group, asked Block if they were coming in to work or only to discuss their problems. Block replied, "It would depend on how the meeting goes." Wernick then told Block he could not depend on her and he was "going to have to act as though you [design consultants] were quitting and find replacements." Block replied, "No, I am not quitting." Wernick replied, "Well, what do you call it? What am I sup- posed to do?" Wernick testified that Block did not respond. The next day the design consultants en- tered Respondent's facility as a group to clean out their desks. Wernick met them and provided boxes for their belongings. There was no discussion about returning to work. The Administrative Law Judge impliedly found the design consultants were engaged in protected concerted activity since he found they were eco- 3 Wernick testified in response to a question by the Adninistrative Law Judge that he contacted the University of Minnesota before he told Block he was looking for replacements when he "was convinced that these people were not going to change their position." ie.. they would insist on a group meeting. nomic strikers and noted that it is not necessary for discharged strikers to make application for rein- statement. In any event it is clear they were en- gaged in protected concerted activity in attempting to present grievances. He then concluded the only issue is whether the design consultants quit or were fired, and stated the test upon which that finding should be based, "Whether the statements and action of the employer at the time of the termina- tion would reasonably lead [the employees] to be- lieve that [they] had been discharged." The C. J. Krehbiel Company, 227 NLRB 383, 384 (1976). The Administrative Law Judge after stating the test then ignored the fact that the test is obviously em- ployee oriented or directed and discussed every- thing not in terms of what the employees reason- ably thought but what Wernick thought. The Administrative Law Judge found that Wer- nick's clear-cut statement that he would have to act as if the design consultants had quit and would have to hire replacements meant only that he had customers to be serviced and would need replace- ments. He found that in the totality of the circum- stances he would not find that the term "quit" was tantamount to "discharge." In so finding he noted that the design consultants were not directed but volunteered to come in and clean out their desks, which is further indication that they quit. He did not mention, however, that this finding is based on Block's testimony which he otherwise discredited, and specifically her testimony that, when she asked Wernick if they were fired because they were not quitting, Wernick said, "As far as I'm concerned you quit when you walked out that door." It was at this point Block testified that she determined there was nothing else to discuss (they had been fired) so she declared that "[they] would be in to- morrow to clean up [their] desks." In that context Block's words are hardly those of a voluntary quit as the Administrative Law Judge finds. In addition, however, it should be noted that Wernick, whose testimony on this point the Ad- ministrative Law Judge conveniently ignored, testi- fied that Block asked if they should come in and clean out their desks but added he did not reply in the affirmative to her request. The General Coun- sel then pointed out that in his affidavit he stated Block asked if they should come in and clean out their desks, to which he replied that "they should come in and get whatever belonged to them." Wernick denied he said it that way. Thus, although Wernick who was credited testified Block asked if they should come in to clean out their desks, a question which according to his testimony he ap- parently never answered, the Administrative Law Judge concluded, based on Block's generally dis- PINK SUPPLY CORPORATION 675:: 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited and taken-out-of-context testimony, that the design consultants volunteered to come in and clean out their desks. In my opinion, that is a rather selective reading of the record. When the design consultants arrived to clean out their desks, Wernick was ready with boxes. The Administrative Law Judge points out that the em- ployees said nothing, which he concludes was fur- ther indication they had quit. But, why say any- thing if they reasonably believed they had been ter- minated? Why engage in an act of futility? On the other hand, the Administrative Law Judge found that the fact that Wernick said nothing at that time is not reason to conclude that a negative inference should be drawn against Respondent concerning Wernick's intention. Yet if Wernick had not in fact terminated the employees and wanted them back would it not be natural for him to ask them if they wanted to return? In my opinion the Administra- tive Law Judge's reasoning is somewhat faulty, particularly since the applicable test is not directed to Respondent's intention; it is employee not em- ployer oriented-"what did the employee reason- ably believe." Likewise the Administrative Law Judge, appar- ently to show Wernick would not fire the design consultants, emphasizes that Wernick had asked the employees earlier in the day to come back but ig- nores his testimony that he also told them he was already looking for their replacements and his testi- mony that since he was convinced the design con- sultants would not change their positions he had al- ready sought replacements before his final conver- sation with Block. The Administrative Law Judge apparently de- cided the case on his perception that after Block said, "No, I'm not quitting," and Wernick replied, "Well, what do you call it? What am I supposed to do," Block was supposed to say something else. But what? It would be perfectly normal to assume Wernick's statements were final and that they had been fired. Finally, although, as the Administrative Law Judge points out, it is not controlling or binding on the Board that the Minnesota Department of Em- ployment Service (MDES) found the design con- sultants were discharged, I believe that finding is significant here. In commenting on the MDES de- cision the Administrative Law Judge notes that Wernick's letters to MDES are consistent with his testimony. That is not quite true, however. Wer- nick's letter to MDES states: I then told her that her unauthorized leaving of the company, for reasons unknown to myself . . . could not be tolerated, that their appointments would have to be served, and that leaving a job without cause or notice and without a commitment to return to work was equivalent to quitting, and that, effective im- mediately, we would be looking for people to replace them. In conclusion, under Block's discredited version it is clear the design consultants were discharged; however, accepting the Administrative Law Judge's credibility findings, I would also find that the design consultants reasonably believed they had been discharged. The credited findings are not so different when carefully considered; I do not think they warrant a different conclusion. Either way it seems clear Wernick told the design consultants they were being replaced-that's termination. I would therefore find the design consultants, in- cluding Block for the reasons hereafter stated, were discharged for engaging in protected concert- ed activity in violation of Section 8(a)(l) of the Act and are entitled to reinstatement and backpay. The remaining issue is Block's supervisory status. The complaint alleged that Block, a supervisor, was discharged to discourage concerted activities among Respondent's employees in general. In this connection the General Counsel points out that the Board has found that in circumstances where action directed against a supervisor has the effect of interfering with, restraining, or coercing em- ployees in the exercise of their Section 7 rights such action violates Section 8(a)(1). 4 I agree with the General Counsel and would find that Block's discharge also violated Section 8(a)(1) because it was motivated by her participation in the employ- ees' concerted efforts to resolve their grievances. The Administrative Law Judge, in view of his disposition of the case, found it unnecessary to de- termine whether Block, as a supervisor, would have been accorded protection under the Act. But he did find that in the circumstances of this case Respondent should not be charged with the repre- sentations of Wernick to the others because her in- terests were clearly aligned with the employees as their designated spokesman. He also noted that the complaint did not allege that the acts and conduct of Block are binding on Respondent. Likewise, Wernick's statement to MDES indicates Respond- ent considered Block not as an insubordinate super- visor but as a participant in the activities of the design consultants, for throughout his statement he treats her as part of the group and then says, "Though given a title of supervisor of three others, her basic job had changed very little." Wernick when asked if he regarded Block as dif- ferent in any way from the other three design con- 4 See General Nutrition Center, Inc.. 221 NLRB 850 (1975). PINK SUPPLY CORPORATION 677 sultants replied, "Only as a spokesman for the other employees." In short, Respondent refused to meet with the individuals as a group and dis- charged them as a group. By failing to distinguish between the supervisor and the rank-and-file em- ployees or communicate that distinction to the em- ployees Respondent not only led the employees to believe they would be disciplined for engaging in conduct similar to that of Supervisor Block but in fact discharged them for engaging in that conduct. As a result it is clear that Respondent's discharge of Block was motivated by a desire to discourage protected concerted activity among its employees in general. I would therefore find that the dis- charge of Supervisor Block also violated Section 8(a)(1) of the Act. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge: This case was heard before me at Minneapolis, Minnesota, on Jan- uary 24, 1979. The underlying charges were filed on Oc- tober 10, 1978, culminating in a complaint and notice of hearing which issued on November 15, 1978, alleging that on or about June 22, 1978, Pink Supply Corporation (herein Respondent) discharged employees Mary Riffe, Nancy Lilledahl, and Marlene Egge, and Supervisor Kathy Block' for engaging in protected concerted activ- ities thereby violating Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. More specifically it is contended that the protected con- certed activities consisted of a -day work stoppage and the alleged discriminatees' efforts to meet and discuss collectively with Respondent certain of their work-relat- ed grievances. Respondent filed an answer conceding, inter alia, jurisdictional facts but denying all allegations that it committed any unfair labor practices. Respondent also denied discharging the alleged discriminatees and as- serted affirmatively, inter alia, that said alleged discrimin- atees had never given any indication that they aban- doned the strike. Upon the entire record, including my observation of the witnesses, and after due consideration of the able briefs filed by counsel for the General Counsel and Re- spondent, I find as follows: FINDINGS OF FACT I. JURISDICTION The Respondent, Pink Supply Corporation, a Minneso- ta corporation, is engaged in the sale and distribution of carpeting, office furniture, textiles, and related products. At all times material herein, Respondent has maintained an office and place of business in Edina, Minnesota, herein called Respondent's facility. During the calendar year 1977, which period is representative of its oper- ations at all times material herein, Respondent in connec- The names of the individuals appear as amended at the hearing. tion with its business operations derived gross revenues in excess of $500,000. During the same time-frame Re- spondent sold and distributed in connection with its Edina facility products valued in excess of $50,000 di- rectly to points outside the State of Minnesota. Further, during the same time-frame, Respondent purchased goods and materials valued in excess of $50,000 which goods and materials were transported to its Edina facility from points directly outside the State of Minnesota. Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR ABOR PRACTICEIS A. Setting Respondent maintains three operating divisions, one in office furniture, a second in textiles, and a third in car- peting which is the division involved herein. On June 21, 1978,2 Kathy Block, the head design consultants in the carpet department, conducted a meeting after normal working hours, attended by Marlene Egge, Nancy Lille- dahl, and Mary Riffe, three subordinate design consul- tants, to discuss low pay and other work-related griev- ances. It was decided that each of them would call Re- spondent's facility on Thursday, the following day, to advise that they would not be in to work and Block was designated as the spokesperson to request of General Manager John Spahn and his immediate superior, Vice President Robert Wernick, that they meet with the design consultants as a group on Friday, June 23, to dis- cuss their grievances. Block testified that on Thursday morning, at or about 9 o'clock, she called at Respondent's facility and left word with the receptionist that she would not be at work that day. According to Block, the receptionist ad- vised that some of the other employees had already called and she knew what was going on. General Man- ager Spahn phoned Block at her home about 9:30 a.m. and asked what was happening. Block explained that there were some serious problems without specifying any of them and requested that he and Wernick meet with her and the other design consultants as a group the fol- lowing morning at 8 o'clock to discuss their grievances. She also advised that she was the designated spokesper- son for the group. Wernick did not appear at Respondent's facility until some time later and, after he and Spahn discussed the matter, Spahn called Block and assertedly advised her that he and Wernick would meet with the design consul- tants as a group to discuss their grievances the following morning. According to Spahn with corroboration from Wernick it is the Company's policy not to negotiate with employees as a group unless management has some prior notice concerning the nature of the grievance although employees may discuss individual grievances with man- agement at any time even without such prior notice. 2 All dates hereinafter refer to 1978 unless otherwise indicated I The parties stipulated and I find that Kathy Block responsibly directs employees and is a supervisor within the meaning of Sec 2(11) of the Act PINK S PPLY C RPORAT ON 6_ 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Block, Wernick called her at home around I p.m. and refused to meet with her and the other consultants on their terms as a group because he was concerned that other employees might band togeth- er and demand to negotiate with management on a groupwide basis. Block testified that near the end of the conversation Wernick told her that if the employees came in to work that day he would be willing to discuss their grievances with them individually. Block responded by renewing her request to meet on a group basis al- though she assertedly told Wernick that she would con- tact the other design consultants and get back to him as to whether they would accede to his demand to meet with him individually. Egge and Lilledahl met at Block's home to discuss Wernick's request that they return to work and discuss their grievances with him individually and they asserted- ly agreed to this course of action. Riffe, the other design consultant, was not feeling well and stayed home but as- sertedly went along with the group's decision. Block with corroboration from Egge and Lilledahl tes- tified that at approximately 4 p.m. she called Wernick and told him that the design consultants agreed to meet with him individually to discuss their problems. Block asserted that Wernick replied, "Quite frankly I don't care to have any of you back." He also told her that he had contacted the University of Minnesota and Vo-Tech, an employment agency, for replacements, adding that their "positions will be filled." Block asked Wernick if she and the other design consultants were fired because they were not quitting to which Wernick assertedly respond- ed, "[A]s far as I'm concerned you quit when you walked out the door." Block then asked him whether he wanted to talk to the other girls and he in turn stated, "lI'd never refuse to talk to the other girls." Block, how- ever, determined "at that point [we] had nothing further to discuss and declared that "[they] would be in tomor- row to clean up [their] desks." Wernick's account of his several phone conversations with Block on June 22 is substantially at variance with the latter's account as set forth above. Wernick, for ex- ample, denied that he ever rescinded his offer to meet with the design consultants individually to discuss their grievances. Wernick asked Block about the nature of the designers' problems and urged her to come back to work that day and, as spokesperson for the other design con- sultants, to get them to come back to work also. He pointed out that by staying out the design consultants were causing the Company "a great deal of inconve- nience and hardship," as there was no one to service the customers. According to Wernick, Block refused to come to work that day or tell him over the phone what the design consultants' problems were, but countered by insisting that Wernick meet with the design consultants as a group the following morning at 8 a.m. to discuss the situation. Wernick testified that he asked whether they (design consultants) would be in to work the following morning or only to discuss their problems, to which Block assertedly responded, "It would depend on how the group meeting goes." According to Wernick, he told Block that he could not depend on her and as the cus- tomers had to be serviced he was "going to have to act as though you [design consultants] were quitting and find replacements." Block denied that she was quitting to which Wernick asked, "Well, what do you call it? What am I supposed to do?" Block assertedly did not respond. The next day, Friday, June 23, each of the design con- sultants drove to Respondent's facility separately where at approximately 10 a.m. they met, and as a group they entered Respondent's facility to clean their desks and gather their belongings. Wernick assisted the group by providing some boxes for their belongings and remarked that he was sorry that it had to end this way. There was no discussion with Wernick on June 23 about returning to work nor was the matter discussed between the design consultants and Respondent thereafter. B. Discussions and Conclusions Counsel for the General Counsel contends that the al- leged discriminatees engaged in a -day work stoppage in an effort to present certain work-related grievances to Respondent and that said Respondent retaliated by dis- charging them thereby violating Section 8(a)(l) of the Act. Counsel for Respondent, on the other hand, while conceding that the alleged discriminatees were economic strikers, asserted that they had not given any indication that they abandoned the strike and they were subse- quently replaced. Further, counsel for Respondent assert- ed that the alleged discriminatees never made application for reinstatement and denied that they were discharged. While it is undisputed that the strikers did not make application for reinstatement, the Board no longer re- quires that they do so in order to activate an employer's remedial obligations.4 Thus this case turns on whether the individuals involved herein were discharged on June 22 as alleged by the General Counsel and denied by Re- spondent. In order to determine this issue, it is critical to resolve Wernick's and Block's conflicting accounts of their phone conversations on June 22. It is undisputed that Wernick spoke with Block on several occasions on June 22. It is also undisputed that Wernick did not talk to any of the other alleged discri- minatees on that critical date. While Egge and Lilledahl supplied some corroboration for Block, because they were in her apartment and present during Block's last phone conversation with Wernick, such corroboration is severely limited insofar as they could not hear Wernick and had to rely exclusively on what Block related to them. Further militating against the reliability of the tes- timony corroborating Block is Egge's characterization of the phone conversation as "quite vague." Thus it appears that the allegations rest largely on whether I credit Wer- nick or Block. It is undisputed that Wernick never told Block that she and the others involved herein were discharged. On the other hand it is also undisputed that Block told Wer- nick that she was not quitting. In these circumstances a discussion of the substance and context of the conversa- tions is in order. According to Block, she called Wernick at 4 p.m., in the presence of Egge and Lilledahl, and told him that 4 See 4bilities and Goodwill Inc., 241 NLRB 27 (1979). PINK SUPPLY CORPORATION the design consultants had agreed to come in and discuss their problems with him individually to which he asser- tedly replied, "Quite frankly I don't care to have any of you back." Block testified that she then told Wernick that she and the others were not quitting and Wernick assertedly remarked, "[A]s far as I'm concerned you quit when you walked out the door." Block told Wernick that she and the others would be in the following day to clean up their desks. As noted previously, Wernick's version of the phone conversation is significantly at odds with Block's ac- count. According to Wernick he wanted and needed the design consultants at work. Even by Block's account, as late as I to 1:30 p.m., on June 22, Wernick was still urging Block, and the others through her, as their spokesperson, to return to work. In this regard Wernick testified that he told Block that she and the others were, inter alia, creating "great hardship" for the Company as there was no one to service the many customers with ap- pointments on June 22 and 23 to which she assertedly re- plied that was his problem. The testimony of Egge tends to support Wernick with regard to the customer situation. Thus Egge testified that the design consultants had a heavy caseload and they de- cided not to report to work in part to demonstrate to management "first hand" how "overloaded" they were. Insofar as the testimony of Egge and Lilledahl corrobo- rating Block, as previously noted, they did not listen in on the phone and had to rely on what Block told them. Their testimony is further suspect not only because of self-interest but also because Egge testified that the con- versation was "quite vague" and Lilledahl's testimony, inter alia was inconsistent. Thus, Lilledahl first testified that Block covered the receiver and told her and Egge that Wernick did not want them back. Later Lilledahl denied that Block covered the receiver but testified that Block transmitted Wernick's remarks after the conversa- tion. In these circumstances I do not credit Block's asser- tion that Wernick told her that he did not want the design consultants back to work. It is undisputed that Wernick told Block that he was looking for replacements and in this regard had contact- ed the University of Minnesota and Vo-Tech, an employ- ment agency. However, it is also clear, as noted above, that at least as late as 1 to 1:30 p.m. Wernick wanted the designers back to work. In these circumstances I find it highly implausible and do not credit Block's testimony that Wernick told her that as far as he was concerned she had quit when she walked out the door.5 The record also discloses that Wernick told Block that he wanted to talk with the others but they refused to get on the phone and talk to him. Wernick credibly testified with corroboration from Spahn that Respondent's prac- I also credit Wernick as well as Spahn over Block in all other areas where their testimony conflicts Overall, I was not impressed with Block as a witness, finding her in critical areas to be unresponsive and indefi- nite. At one point she volunteered that it was difficult for her to "think straight." With regard to Wernick it is also noted that he was uncertain as to precisely what was said Im each of the phone cornverations n June 22 although he could recall what he and Block stated Ito each other oxer the course of the entire day I find that Wernick's demelanor as such that he related facts as best as he could recall. given the time lag and numerous other inlers ening esvets tice is not to meet with employees as a group to discuss work-related problems unless first given notice revealing the nature of the problems. Block refused to disclose the nature of the grievances on June 22. This tends to give weight to Respondent's position that the employees never retreated from its original position that Block was their spokesperson and they would only deal with him on a groupwide basis and only on their terms. Further it tends to support Wernick's assertion that he never dis- charged the individuals herein but rather pressed for their return to work. Thus, when Wernick was unable to persuade Block to come back, he then asked to talk to the others. In these circumstances it would appear incon- gruous to accept the General Counsel's position that Wernick had already discharged them when all signs in- dicate that he wanted to talk to the other design consul- tants to urge them to come back to work. As stated in The C. J. Krehbiel Company" cited by General Counsel, "The test of whether an employee quit or was discharged is whether the statements and action of the employer at the time of the termination would reasonably lead him to believe that he had been dis- charged." Applying the foregoing test to the instant case General Counsel contends that, on the basis of Wernick's overall comments, Block could reasonably conclude that she was in fact discharged and further when she, an admitted supervisor, transmitted said comments to the others, they too could reasonably conclude that they were dis- charged. He relies largely on Block's testimony that Wernick told her that he did not want them back and they should clean out their desks. For reasons stated pre- viously, I have rejected Block's testimony ascribing to Wernick that he did not want the individuals involved herein back at work. With regard to the design consul- tants cleaning out their desks it is noted that Block vol- unteered and was not directed to come in the following day to clean up. Wernick credibly testified that he asked Block on behalf of herself and the others to meet with him individ- ually. While Wernick admitted that he later told Block that he would have to act as though she quit, in context it appears that the customers had to be serviced and he would have to find replacements and told as much to Block. In the totality of the circumstances herein I do not find that the term "quit" as used by Wernick is tanta- mount to "discharge." 7 Further, in the circumstances of this case I do not find that Respondent should be charged with the representations of Wernick to the others, albeit an admitted supervisor, as her interests were clearly aligned with the employees' as their desig- 6 227 NLRB 383. 384 (1976), citing VIN . R B v llron .,IobtI tlhmi. 387 F 2d 7 (8th Cir 1967). I do not deem the findings by the Minnesot; Department of Employ- metl Services (MDES). that the alleged discriminatees were discharged, decisive to the issues herein While Wernick submilted a letter to MItFS setlling florth his accoullnrt f what transpired on June 22. it is, mIl acl r what considerations ere involved in MDFS' firdings In arly cxr Weriick 's letters are consistent ith his testimonl herein (See ( C Exhs. 2(a) 3(1), 4(a). and 5(a)) Further. AWernick credlihN testified witLh out coiltradiction that the Compan)'s \ hb kkeeping records contilne li 1 carry the lames of lie alleged discrinminatee, wherea, the nalimes if it charged crilplyeres are customariI deleted ronl said rcorlrds 679 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nated spokesperson and not as agent for Respondent. Moreover, it noted that the complaint does not allege that the acts and conduct of Block are binding on Re- spondent on an agency basis. While this case is not free of ambiguity, it is noted that the alleged discriminatees passed up an opportunity to learn of Wernick's intentions directly when they refused to talk to him on the phone or even question him the following day as to whether they were discharged. These individuals had the right under the Act to continue to act concertedly but by electing to do so it does not follow that a negative infer- ence should be drawn against Respondent vis-a-vis his in- tentions. In view of the foregoing and under all the circum- stances I find that the credible evidence is insufficient to establish that Respondent discharged the individuals in- volved herein and further that they had no reasonable basis for concluding that they were discharged.8 Ac- In these circumstances, I find it unnecessary to determine whether Kathy Block, an admitted supervisor, would have been accorded protec- tion under the Act otherwise. cordingly, I shall recommend that the complaint be dis- missed in its entirety. CONCLUSIONS OF LAW 1. The Respondent, Pink Supply Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The General Counsel has not proved by a prepon- derance of the credible evidence that Respondent has violated Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in these proceedings, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 The complaint is hereby dismissed in its entirety. 9 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 find- ings, 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 he deemed waived for all purposes.