Go-Lightly Footwear, Inc.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Go-Lightly Footwear, Inc. and Cindy L. Lais and Cathy C. Lindquist. Cases 3-CA-9112-1 and 3-CA-9112-2 August 12, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On April 22, 1980, Administrative Law Judge Stephen Gross issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.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 Respondent, Go-Lightly Footwear, Inc., Amsterdam, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. ' The Administrative Law Judge made two inadvertent factual errors in the section of his Decision entitled "Findings of Fact" First, he stated that Executive Vice President Robert Winig ordered the Amsterdam plant manager. Celso Vargas, o fire employees "Lindquist. Lais and Her- nandez" The third employee fired by Vargas was not named Hernandez but Nelda Gonzales Second, the Administrative Law Judge incorrectly related that Robert 'Winig visited the Amsterdam plant to check the time- cards of the employees fired Winig did examine the timecards of the em- ployees, but he did so at thie loversville plant. 'We hereby correct these errors We agree with the Administrative Lau Judge's finding that Respond- ent had knowledge of Lais and Lindquist's protected concerted activity In addition to the factors cited by the Administrative Law Judge in sup- port of his finding, we rely orn the admissions set forth in Robert Winig's affidavit, which was admitted into evidence at the hearing. In his affida- vit, Winig related the events of the first business day following the day of the protected concerted activity Winig stated that he was told about the employees' picketing and their leaving the plant without punching out prior to instructing Vargas to fire the employees: "After hearing this story [of the picketing and walkout] from Shea and having Brandt con- firm much of it I then pulled the timecards of the 3 employees Those timecards were at the Gloversville office I saw that none of the three employees had punched out I then immediately phoned Vargas It was about 11 30 a m. I instructed him to let go these 3 employees'" 2 Member Jenkins would award interest on the backpay due based on the formula set forth in his dissent in Ol(mpic Medical Corporation. 250 NLRB No 11 (1980). 251 NLRB No. 8 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge our employees be- cause they engage in a walkout or other con- certed activity for mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL make Cathy Lindquist and Cindy Lais whole for any loss of pay they suffered as a result of our firing them because they en- gaged in concerted activity for mutual aid and protection, plus interest. Go-LIGHTLY FOOTWEAR, INC. DECISION STATEMENT OF THE CASE STEPHEN GROSS, Administrative Law Judge: On June 20, 1979, Cindy L. Lais and Cathy C. Lindquist filed charges against Go-Lightly Footwear, Inc. (hereafter called Go-Lightly or the Company), claiming that Go- Lightly fired them for engaging in protected concerted activity.' Those charges formed the basis of a complaint, alleging violation of Section 8(a)(l) of the Act, that the Regional Director for Region 3 issued on June 26, 1979. Go-Lightly's answer admitted the complaint's jurisdic- tional allegations. But Go-Lightly denied that it had fired Lais and Lindquist because of their concerted activities or that the Company had otherwise violated the Act. I heard the case in Albany, New York, on November 26 and 27, 1979.2 FINDINGS OF FACT Go-Lightly manufactures footwear; shoes at a plant in Gloversville, New York, and slippers in Amsterdam, New York. Neither plant is unionized. Norbert Winig is the president of Go-Lightly. Robert Winig is executive vice president. Celso Vargas managed the Amsterdam plant for the Winigs during most of the period of February 1979 to September 1979. With the ex- ' The June 2(0 charges amended the charges filed by Lais and Lind- quist ton May 22, 1979 2 The General Counsel filed a unopposed motion to correct tran- script The motion is granted GO-LIGHTLY FOOTWFAR, INC. 43 ception of one 5-day period during those months, Orla Brandt supervised the work at the Gloversville plant. That 5-day period was May 14 through 18, when Brandt took Vargas' place at the Amsterdam plant while Vargas was away. (Actually Brandt's work at the Am- sterdam plant overlapped Vargas' slightly, since Vargas was away from the plant only 3 working days, May 16 through 18.) On May 16 one of the workers at the Amsterdam plant, Gladys Majewski, complained to Brandt about what Majewski felt was Brandt's unfair treatment. Ma- jewski was originally from Puerto Rico and she believed that Brandt's treatment stemmed from Brandt's prejudice against Puerto Ricans. Majewski said so to Brandt and then left the plant. When Majewski returned on Friday, May 18, she found a note on her timecard advising her that her "services [were] no longer needed." That led to another argument between Brandt and Majewski. Ma- jewski stalked out of the plant, promising to return. Brandt, taking that as a promise of bodily harm, got upset. At lunchtime on that same day, May 18-about noon-Majewski and a friend (who had not previously been connected with Go-Lightly in any way) appeared outside the factory with several poster-board placards that Majewski had made. While the exact wording of the placards is not altogether certain, it appears that the placards read: "Lincoln Freed The Slaves," "God Does Not Discriminate, Why Do You," "Go-Lightly Employs Scab Labor," "Go-Lightly Is Unfair To Minorities," and "Beware of Go-Lightly's False Promises." 3 Brandt did not go outside during the lunchbreak. But an employee-Go-Lightly's chief mechanic-told her that Majewski was outside with placards and that one of the placards said, "Go-Lightly Employs Scab Labor." When Brandt went to a window to look, she could indeed see Majewski, but could not read the placards from that distance. Meanwhile, during the lunchbreak, at least three employees asked Majewski if she needed any help with her campaign: Cindy L. Lais, Cathy C. Lind- quist, and Nelda Gonzales.4 Majewski said that she did not then need any assistance but might want it later on. None of the plant's employees remained with Majewski when the lunchbreak erded. An hour or so later, however, a newspaper reporter appeared on the scene, apparently having been contacted by Majewski. At that point Majewski asked her friend to have Lindquist, Lais, and Gonzales join her. Majewski's friend did that by going into the factory building and motioning for Lindquist to get the other two and to come out. Lindquist, Lais, and Gonzales left their work stations and joined Majewski openly, without attempting to hide their departure from Brandt, who in fact watched the three employees leave. In leaving the plant the three vio- s As to the claimed "false promises," there is no dispute that the Winigs had told at least some of the workers at the Amsterdam plant at the time they were hired that the employees there would be covered by medical insurance But the arrangement the Winigs were counting on fell through and. on May I I, the employees all received letters advising that medical coverage would not be provided until some future time: See GC. Exh. 4 4 Gonzales did not file a charge and is not referred to In the complaint lated two plant rules. They left their machines without getting permission to do so and they left the plant with- out punching out. Go-Lightly has no written set of plant rules. But the testimony at the hearing makes it clear that all employees knew of and generally obeyed both of these rules. Once outside, Lindquist, Lais, and Gonzales talked to the reporter for awhile "about Gladys [Majewski] being fired and what we felt was favoritism shown in the mill and about what we thought was false advertising in the paper concerning jobs," carried placards for awhile and, apparently, just talked among themselves (with Ma- jewski) for awhile. They concluded that they should speak directly to Norbert Winig about what they saw as Brandt's unfair supervisory practices. But they dropped that course of action when a union organizer arrived and instead talked over the matter with her. After that talk Gonzales and Lindquist returned to work at the plant, at or about 2:30. Lais went home. Meanwhile, inside the plant, word had spread that Ma- jewski had a gun. That completely unnerved the already tense Brandt, so that Go-Lightly's chief mechanic, rather than Brandt, undertook to call Norbert Winig and, subse- quently, the police about the matter. The activities by Majewski and her associates were completely peaceful, however, and there is no evidence whatever that Ma- jewski had a gun, much less contemplated using one. That evening Brandt met with Norbert Winig while she was still badly scared and upset. She told Winig that she felt endangered by the situation at the Amsterdam plant and refused to go back there. She did not mention any placards, picketing, newspaper reporters, or even the absence of Lindquist, Lais, and Gonzales. Then, on Sunday, Norbert Winig advised Robert Winig of what Norbert knew of Friday's circumstances, a narrative limited to matters about Brandt's concerns for her physical safety and about an ex-employee possibly carrying a gun outside the plant. On Monday, Vargas returned to the plant. Vargas no longer works for Go-Lightly and did not testify. But ac- cording to the testimony of Lais and Lindquist, which I credit, they told him that they walked out because Ma- jewski was fired and because of Brandt's favoritism. Ac- cording to Robert Winig, he and Vargas did discuss Fri- day's events on Monday, but that Vargas limited the dis- cussion to the fact that Lindquist, Lais, and Gonzales had left the building without getting permission to do so and without clocking out. Vargas also mentioned that a number of other employees were angry that the three seemed to be getting away with those violations of the rules. Winig visited the Amsterdam plant, checked the ti- mecards, and ordered Vargas to fire Lindquist, Lais, and Hernandez. As far as Robert Winig was concerned, "we always had a precedent that if people walked off the job, it was automatic, in my mind, that they quit their job." Later that day, Go-Lightly's chief mechanic amplified Vargas' description of Friday's events, mentioning, among other things, that there had been some signs "that some people had been walking around with out front" and that one of the signs said, "Go-Lightly Employs Scab Labor." He also told Robert Winig that he saw GO-LIGHTLY FOOTWEAR, INC 43 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lais, Lindquist and Gonzales with Majewski, talking to a reporter. 5 Meanwhile Vargas followed Winig's order to fire the three workers and the resulting discharges led Lindquist and Lais to file the charges that led to this proceeding. THE PARTIES' POSITIONS The General Counsel argues that the above facts rep- resent a clear case of the Company firing three employ- ees because of the employees' participation in activity that is protected by the Act. The Company argues that: (1) the General Counsel should have called as witnesses such relatively disinter- ested persons as the newspaper reporter and a police of- ficer who visited the picketing site and that the General Counsel's failure to present this "best evidence" ought to be reflected in the Board's findings of fact; (2) the em- ployees were obligated to bring their complaints to the Winigs before walking out since the Winigs kept them- selves available to Go-Lightly's employees; (3) there was no showing that the three employees' activity was ad- dressed to work-related complaints or grievances, or that it furthered a group purpose; (4) it was not shown that Go-Lightly had any knowledge of the nature of the three employees' activities; (5) the three employees were fired solely for leaving the plant without permission, and not because of their picketing or other such activity; and (6) focusing on Lais, in particular, she did not return to the plant even when the others did. ANALYSIS, CONCLUSIONS, AND FURTHER FINDINGS OF FACT The activity in question was concerted, obviously, and did relate to wages and working conditions. The plac- ards were not models of clarity. But they are not re- quired to be. And a walkout in support of a discharged employee, plus picketing outside a plant with placards refering to unkept promises by the employer, to scab labor, and to unfairness to minorities, reasonably relates to matters protected by the Act: See, e.g., Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215, 1217 (1977). Nor is there any requirement that Gonzales, Lais, and Lindquist had to undertake less drastic forms of pro- test before walking off their jobs: See N.L.R.B v. Wash- ington Aluminum Co., 370 U.S. 9, 14-15 (1962); Audio Systems, Inc., 239 NLRB 1316 (1979). Finally, as regards the employees' conversations with a reporter, the reporter was advised of the placards (and took photographs of them), and was told about Go- Lightly's alleged favoritism and misleading employment advertisements. That too adds up to protected activity since employees do not lose the Act's protections merely because they choose to use "channels outside the imme- diate employer-employee relationship": Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565 (1978); see also Allied Avi- ation Service Co., 248 NLRB 229 (1980). The three employees did violate company rules when they walked out during working hours without punching out and without notifying their supervisor. But activity 5 General Counsel argues that the chief mechanic was a Go-l.ightly supervisor. But the evidence does not show that to be the case. that is otherwise protected does not lose that protection because of violations of those kinds of work rules: e.g., Ontario Knife Co., 247 NLRB No. 168 (1979). Had the employees engaged in a series of short-term walkouts, or even if they had planned to do so, the existence of those rules could be significant: See, e.g., Polytech, Inc., 195 NLRB 695, 696 (1972). But there was only one walkout here and no evidence of any plan to undertake any more. As to the company's claimed lack of knowledge of the three employees' activities, it is true that ordinarily a showing of knowledge by the employer of the concerted activity in question is a necessary element in finding a violation of the Act: e.g., Diagnostic Center Hospital Corp., supra , 228 NLRB at 1216. But that does not help Go-Lightly since the Company did have that knowledge. Lais and Lindquist described their activities to Celso Vargas, an admitted supervisor, before the Company fired them. Further, no more than a few hours after the three employees were fired, and perhaps before they were, Robert Winig was told about the employees' pick- eting. And finally, Brandt, whom I find to be a Go- Lightly supervisor, knew about Majewski's picketing and saw Gonzales, Lais, and Lindquist leave together.6 How- ever upset Brandt may have been, the protection the Act would otherwise accord the three employees can hardly be denied in these circumstances because of Brandt's un- willingness to look out the window. I have considered the Company's claim that Lais should not be entitled to the protection of the Act given her decision to go home, rather than back to work, after the events outside the plant ended. But as I add up the evidence, that decision was an integral part of Lais' pro- test about the conditions of employment at the Go-Light- ly plant. Thus, Lais' refusal to work for the rest of the day was protected activity. In any case, Go-Lightly fired all three employees, not just Lais. And the Company made no distinction between how it should react to Lais' activities when she was acting directly in concert with her fellow employees and how the Company should react to her departure for the remainder of the day. Since the Company did not distinguish at the time it fired her between these two facets of Lais' behavior, it can not properly do so now. Finally, as to the General Counsel's failure to call as witnesses a reporter and a police officer who were pres- ent at the picketing, the General Counsel had no obliga- tion to do that. Accordingly, no presumptions should be made because he did not. Neither person is or was em- ployed by the General Counsel or was otherwise shown " The Company admits that Brandt was a supervisor of employees at the Gloversville plant. Go-Lightly claims, however, that she did not have supervisory authority at the Amsterdam plant. But a distinction of that kind makes no sense when the issue is one of the employer's knowledge of an event. Moreover, since Brandt had been asked by the Winigs if she "would take over the [Amsterdaml plant while [Vargas] was gone" and had done so, she was a Go-Lightly agent for purposes of keeping track f personnel matters for the Winigs Finally. Brandt was a supervisor in her work at the Amsterdam plant. She replaced Vargas. an admitted supervi- sor; if Brandt were not a supervisor it would mean that during most If the period in question a plant of 60 workers would not have had a super- visor present; Hrandt assigned work to employees and rdered correc- tions; and the Amsterdanm employees clearly thought 1f her as a supervi- sor and representative of management GO-LIGHTLY FOOTWEAR, INC. 45 to be under his control. The Company was in as good position to subpena the two as was the General Counsel. Since it chose not to, it may not now complain about the lack of testimony from those two witnesses. CONCLUSIONS OF LAW 1. Go-Lightly Footwear, Inc., is an employer within the meaning of Section 2(2) and Section 8(a)(1) of the Act. 2. Go-Lightly terminated its employment of Cindy L. Lais and Cathy C. Lindquist because Lais and Lindquist engaged in concerted activity for the purpose of mutual aid and protection. 3. Go-Lightly accordingly interfered with, restrained, and coerced employees in the exercise of the rights guar- anteed to employees in Section 7 of the Act, an unfair labor practice in violation of Section 8(a)(l) of the Act. 4. That unfair labor practice affected commerce, within the meaning of Section 10(a) of the Act. THE REMEDY The recommended Order will require Go-Lightly to cease and desist from interfering with employees in the exercise of their Section 7 rights by discharging employ- ees who engage in concerted activity for the purpose of mutual aid and protection. 7 The recommended Order will also require Go-Lightly to make Lais and Lindquist whole for any loss of earn- ings they suffered as a result of their discharge by Go- Lightly. Loss of earnings shall be computed as pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora- tion, 231 NLRB 651 (1977). 8 Finally, Go-Lightly will be required to notify its em- ployees of the action being ordered by the Board. Upon the foregoing findings and conclusions, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER9 The Respondent, Go-Lightly Footwear, Inc., Amster- dam, New York, and its officers, agents, successors, and assigns, shall: I will recommend that Go-L.ightl) also be required to cease and desist from violating the Sec. 7 rights of employees in any like or related manner: See Hicknmon FWod. Inc., 242 NLRB 1357 (1979). ' Following the filing of the charges that led to the institution of this proceeding. Go-Lightly offered Lindquist and Lais reinstatement effec- tive July 30. 1979 Lais returned to Go-Lightly Lindquist did not. 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- I. Cease and desist from: (a) Discharging any employee by reason of the em- ployee's concerted activities for the purpose of mutual aid or protection. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make Cindy L. Lais and Cathy C. Lindquist whole for any losses they may have suffered by reason of their discharge by Go-Lightly, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other documents nec- essary to analyze and compute the amount of backpay due under this Order. (c) Post at its Amsterdam, New York, facility copies of the attached notice marked "Appendix."'° Copies of said notice, on forms to be provided by the Regional Di- rector for Region 3, after being duly signed by Go- Lightly's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Go-Lightly shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Go-Lightly has taken to comply with this Order. ings. conclusions. and recommended Order herein shall. as pros ided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I' In the event that this Board's Order is enforced bh a Judgment of the United States Court of Appeals, the words in the notice reading "Posted bh 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" GO-LIGHTLY FOOTWEAR, INC 45