J. P. Hamer Lumber Co.

J. P. HAMER LUMBER COMPANY J. P. Hamer Lumber Company, Division of Gamble Brothers, Inc. and United Furniture Workers of America, AFL-CIO. Case 9-CA-11541 March 29. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 26, 1978, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief and the General Counsel filed an answering brief to Respondent's ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified, and hereby orders that the Respondent, J. P. Hamer Lumber Company, Division of Gamble Brothers, Inc., Burnside, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph (b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made b. the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge, at fn. 31 of his Decision, cites Advance Industries, 220 NLRB 431 (1975), enforcement denied in part and granted in part 540 F.2d 878 (7th Cir. 1976), for the proposition that a unilaterally established grievance procedure does not provide a sufficient basis for deny- ing employees the protection of the Act. Member Penello agrees with the Administrative Law Judge's finding that Respondent violated the Act. inas- much as the concerted walkout herein is clearly distinguishable from the plant takeover and seizure of the means of production in Advance Industries, supra, wherein Member Penello dissented in part. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we participated, it has been found that we have violated the National Labor Rela- tions Act, as amended, in certain respects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE WIt.L NOT interfere with, restrain, or coerce employees by discharging or in any other man- ner discriminating against them for striking, par- ticipating in a concerted work stoppage, or en- gaging otherwise in concerted protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Billy Haynes, Paul McMullin, Mike Hayes, Gerald Cook, Everett Simpson, Owen Bunch, and Rexel Gregory immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make each of them whole, with interest, for any loss of earnings suffered. WE WILL rescind and remove the personnel files of each of the above-named employees, and from any of our other relevant records, any refer- ence to the written notices of discharge issued to them in connection with their respective refusals to work an additional hour on June 3-4, 1977, and make provisions that these notices shall not be used as grounds for further disciplinary action against these employees. J. P. HAMER LUMBER COMPANY, DIVISION OF GAMBLE BROTHERS, INC. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in Somerset, Kentucky, on November 14 and 15, 1977.' Pursuant to a charge filed by the United Furniture Work- ers of America, AFL-CIO, on July 8, a complaint was is- sued b the Acting Regional Director for Region 9 on Sep- tember 8. The complaint alleges that J. P. Hamer Lumber ' All dates hereinafter are in 1977 unless otherwise stated. 241 NLRB No. 100 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Division of Gamble Brothers, Inc., herein the Respondent. terminated and refuses to reinstate seven of its employees, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, because they engaged in a protected concerted walkout. The Respondent, in answer- ing the complaint, denied the commission of unfair labor practices. All parties were given full opportunity to participate, to produce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Briefs, which have been care- fully considered, were filed by the General Counsel and the Respondent. Upon the entire record of this case,2 and from my obser- vation of the witnesses and their demeanor, I now make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Kentucky corporation, is engaged in the processing and manufacture of laminated flooring, fur- niture stock, and trailer truck forms at its Burnside, Ken- tucky, facility. During the 12-month period immediately preceding the issuance of the complaint herein, a represent- ative period, the Respondent sold and shipped goods and materials valued in excess of $50,000 from its Burnside fa- cility directly to points outside the State of Kentucky. Upon the foregoing uncontested facts, I find that the Re- spondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.' 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The General Counsel contends that the Respondent, on June 7 and 8, unlawfully terminated seven employees, Billy Haynes, Paul McMullin, Mike Hayes (McMullin's step- son), Everett Simpson, Gerald Cook, Rexel Gregory, and Owen Bunch, from its second shift for having concertedly walked off the Respondent's premises about 12:30 a.m. on June 4, I hour before the scheduled end of their shift, to protest the number of hours they were being required to work. The Respondent, in turn, argues that the employees were lawfully discharged for misconduct and insubordina- tion after they had left work early without permission or reasonable excuse. The Respondent, although disputing 2 Certain errors in the transcript have been noted and are hereby cor- rected. Although the charge herein was filed by the Union in its representative capacity, the complaint does not allege that the discharges herein had been caused by union activities on the part of the employees involved or that they were otherwise union-related. that the walkout was concerted, asserts that even if the em- ployees had been acting in concert their terminations would not have been unlawful, as their purpose in so doing never had been communicated to the Respondent and as there was an established grievance procedure available to the em- ployees. The Respondent is principally engaged at its Burnside, Kentucky, plant in the manufacture and distribution of laminated board to be used in the production of truck trail- ers. The Respondent employs approximately 102 produc- tion employees on two shifts. The first shift was scheduled on Mondays through Saturdays from 7 a.m. to 3:30 p.m., and, prior to April 28, the second shift worked the same 6 days from 3:30 to around 12:30 a.m.4 When the events herein took place, Harry E. Quillen was plant superinten- dent, John Maynard was assistant superintendent, and Robert (Blackie) Carrender was foreman of the second shift.' In April Andy Mercer, a second-shift production em- ployee, gave Superintendent Quillen a petition signed by 25 of the approximately 32 employees on his shift to the effect that the second-shift employees wanted to work longer weekday hours, from 3:30 p.m. to 1:30 a.m., and thereby not have to work on Saturdays. On about April 28, Assistant Superintendent Maynard, at Quillen's instruction, conducted a meeting attended by Foreman Carrender and about 20 second-shift employees for the purpose of conducting a vote to determine their views on the changes suggested in Mercer's petition. The meeting began shortly before the start of the shift., Maynard told the assembled employees that the Com- pany had to have a certain amount of production from their shift but that as long as the required work was performed it did not matter if the workweek was 5 or 6 days. Certain employees present, including Paul McMullin and Carol Branscum, testified that Maynard had told the group that the hours thereafter would be changed so that the second shift would work from 3:30 p.m. to 1:30 a.m. on the shifts that began on Mondays through Wednesdays and from 3:30 p.m. to 12:30 a.m. on shifts beginning on Thursdays and Fridays. After brief discussion a vote was taken, and, by show of hands, the employees unanimously approved the new schedule proffered by Maynard. While Maynard was in the upstairs office seeking Quillen's approval of the voted schedule change, most of the employees remained in the file room and further considered the proposition. Shortly thereafter Maynard, having received Quillen's ap- proval, was asked to return to the file room where most of ' The events herein related focus on the work hours of the second shift. The Respondent's position is that the nature of its operation, which requires working to close tolerance and making extensive use of glue, which could harden on the machines, in the context of the need to timely complete orders, necessitates an almost continuous work effort involving long hours. A work- week of 48 to 50 hours on the second shift was deemed standard. Overtime work was frequent and mandatory and, in spite of scheduled hours, second- shift employees worked until notified by the foreman's whistle that it was time to go home. 5 In accordance with the stipulation of the parties at the hearing, I find that at all times material herein Carrender was a supervisor within the mean- ing of the Act. 6 The representation election in Case 9 RC- 11963, which resulted in the Union's certification as bargaining representative, took place on the day preceding the meeting. 614 J. P. HAMER LUMBER COMPANY the employees were still assembled. Maynard was told that the employees had reconsidered, and rather than work odd hours they would prefer to work one steady shift all week. After further discussion it was agreed and again unani- mously voted that the employees would work on Mondays through Fridays from 3:30 p.m. to 1:30 a.m. Maynard again conveyed the results of this poll to Quillen and that day posted the following notice, over Quillen's signature, on the bulletin board: DUE TO OUR SHIPPING SCHEDULE WE HAVE TO OPERATE THE PLANT ON 48 HOURS-WEEKLY; DAY SHIFT--7:00 A.M. TO 3:30 P.M.; 6 8-1/2 HOUR SHIFTS; NIGHT SHIFT- 3:30 P.M. TO 1:30 A.M.; 5 9-1/2 HOUR HIFTS;7 SHIP- PING-AS REQUIRED. Although I find from the record as a whole that the above notice was posted on about April 28, following the second employee vote taken that date, and that the notice remained on the bulletin board for some time thereafter, it also is clear, whether or not justified, that an ambiguity existed on the part of certain employees as to exactly what were the working hours of the second shift. All the dis- chargees herein who testified believed that the shifts which began on Thursdays and Fridays should properly have ended at 12:30 a.m. Mike Hayes and Paul McMullin both testified that they had left the meeting before the second vote was taken, and Billy Haynes and Paul Gregory related their unfamiliarity with the 1:30 a.m. quitting time on those nights. Admittedly, none of these employees had been at- tentive to the bulletin board, but a basic reason for uncer- tainties as to when work was supposed to end on Thursdays and Fridays was the varying hours actually worked, as in the weeks that followed April 28, the second-shift employ- ees on those nights continued to work to differing times. During the payroll period ending April 30, employees on the relevant shift averaged 47-1/2 hours, working 8-1/2 and 10-1/2 hours, respectively, on Thursday and Friday of that week. In the week ending May 14, the employees averaged a total of 48 hours, working 10 hours on both Thursday and Friday. The employees totaled an average of 47 hours for the week ending May 21, putting in 8-1/2 hours on Thurs- day and 10 hours on Friday. The total for the week ending May 28 was somewhat in excess of 50 hours, with shifts of from 10 to 10-1/2 hours from Monday through Thursday of that week and from 10-1/2 to 11 hours on Friday. On the last relevant week, which ended June 4, Monday was a compensated holiday, Memorial Day, for which the em- ployees received 9 hours' pay, although thereafter that week they were assigned to work 10 hours each night from Tues- day through Friday.' 'The 9-1/2 hour shifts referred to on the notice, by the Respondent's interpretation, included a 30-minute unpaid lunchbreak. Employees nor- mally were required to be on the Respondent's premises for at least 10 hours, including the meal recess. However, employees who finished eating and were back at work within 15 minutes were paid for the full half-hour. Quillen explained that this represented a liberalization of the former policy of not paying for any part of the half-hour lunchbreak and served to encourage the employees to return to work before the glue they were using hardened. IQuillen explained that unless sent home early because of equipment breakdown all second-shift employees were expected to be on the premises for at least 10 hours. Where company records indicated that employees worked for less than 10 hours on a given night, equipment failure could be Accordingly, while I accept the Respondent's position that as the result of Mercer's petition and the votes which followed on April 28, the work schedule for the second shift was formally changed in conformity with the above-de- scribed posted notice, I also accept the testimony of the dischargees that, whether or not warranted, they did not understand that the formal ending time for their shift on Thursdays and Fridays was 1:30 a.m.9 Quillen testified that the shift that began on Friday, June 3, 3:30 p.m., was scheduled to work until 1:30 a.m., June 4. However, on June 4, about 8 a.m., he received a call from Carrender, who reported that the above-named seven em- ployees from the second shift, without permission, had punched out and left at 12:30 a.m. Carrender did not know why they had done so. Quillen told Carrender to leave these employees' timecards on his desk. Carrender also had in- formed Quillen, either during that weekend or on the fol- lowing Monday, that second-shift employees Carol Bran- scum, Jack Daniel, and Lester Loveless, had reported that certain of these seven men on the night in question had asked them to leave with them but that they had refused. They, too, did not know why the seven had left.' 0 Quillen, on June 5, received a further report of what had occurred when Carrender related that he had asked Billy Haynes to run the press for Kenneth Perry" during the last hour of the shift but that Haynes had replied that he, too, was going to leave. Carrender informed Quillen that he had not taken Haynes' response seriously, as the latter fre- quently made such remarks. Carrender also told Quillen that when the employees left he was preoccupied at the rear of the plant in attempting to clear a lumber jamup then blocking production. While Carrender was working on the problem with several other employees he could not see the timeclock. Carrender later discovered that although Mike Hayes had been working with him until about 12:30, Hayes was among those who had left without saying anything to him. Carrender testified that about I p.m. Carol Branscum asked if they were all going to quit for the night at 12:30 a.m. When Carrender replied that he had not heard a thing about it, Branscum told him that some of the men had said that they were leaving at 12:30. Branscum did not identify the employees who were going to leave early, and Carren- der did not ask who they were. According to Carrender, only Haynes and Branscum, as noted above, had men- tioned that employees might leave work that night before quitting time. About 12:40 a.m., just when the lumber jam was corrected, Carrender was approached by Branscum, presumed to be the reason. While employees were expected to be available for at least 10 hours' work, pursuant to company policy, they received only 9 hours' holiday pay. 9 In determining whether the seven employees were terminated unlawfully for having concertedly protested the number of working hours specifically assigned for June 3 4, the matter of whether they then knew the extent to which the work schedule had been changed would not be controlling. 0 Quillen testified that on Sunday, June 5, he received a like report di- rectly from Jack Daniel. It Kenneth Perry, another second-shift employee, had received permission from Carrender to leave at 12:30 a.m. on June 4, for dental reasons. Perry's brother, Robert. also employed on that shift, was released with him, as the two rode to work together. The record reveals that the Perrys, perhaps jeer- ingly, had told other employees that they were going to leave early, appar- ently irking some of those who had to remain. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Loveless, and Daniel, who told him that they could not operate as the seven employees had gone home. They iden- tified the departed employees as Cook, Bunch, Haynes, Hayes, McMullin, Gregory, and Simpson, stating that they did not know why the seven had left. Carrender went to the front of the building and examined the timecards. All seven had punched out between 12:32 and 12:33 a.m. As noted, later in the morning on June 4, Carrender made his initial report of the incident to Quillen. On Monday, June 6, 10 a.m., having been summoned by a call from Quillen's secretary, Haynes. McMullin. Hayes, Gregory, and Cook reported to the anteroom of Quillen's office. Although a message was left for Bunch, he did not come in that day. Simpson, who appeared that afternoon. was interviewed in the same manner and by the same com- pany officials as were the others. The employees were called into the office one at a time to meet with Quillen, Maynard, and Carrender. During each of these interviews, Quillen had before him personnel forms called "Employee Records Report," pre- pared for each of those to be interviewed. On each of these forms, Quillen had had typed that the respective employees had left the job I hour early without their supervisor's per- mission and the following five questions, with blanks for the answers: I. Was your reason an emergency? If yes, what? 2. Why did you leave? 3. Did you request permission from foreman? 4. Did you talk to anyone else about leaving? If so, why? 5. Did anyone else talk to you about leaving at 12:30? In conducting the interviews, Quillen asked the respec- tive employees the questions on the form, writing their re- sponses on the form. Quillen related that McMullin, when interviewed, denied that his early departure had been prompted by an emer- gency, stating that he had left because Kenneth and Robert Perry had done so. McMullin testified that although he had told Carrender that he was going to leave, he had not spo- ken to anyone else, nor had anyone spoken to him about leaving early.' Mike Hayes, McMullin's stepson, also denied that he had left early on the night in question because of an emergency or that he had discussed his departure with anyone before leaving. He told Quillen that he had gone home because Kenneth Perry had done so, and, as McMullin provided his transportation to work, he had left with McMullin.'3 Cook, similarly interviewed, told Quillen that he had gone because of a headache, without permission and without having spo- ken to anyone else about leaving. Quillen testified that Billy Haynes, when asked, stated that he had left because he wanted to. Haynes conceded 12 McMullin testified that he did not refer to the Perrys at the interview merely in the context of their having left early, but that their absence meant that there would not be enough men to operate the saw. He related that he earlier had told Carrender he was leaving because he had worked 9 hours and, at the interview, had told Quillen that the Company was working the men to death. i3 Respondent's account of the interview with Hayes is not disputed. that he had left without permission but stated that he had told Carrender that night that he was going home early.' 4 Rexel Gregory, according to Quillen, stated during his interview that he had left because he wanted to. When asked if anyone else had told him to he could leave, Greg- ory, a large man, retorted that no one told him what to do, Quillen or anyone else. They could ask, but they could not tell him what to do. Gregory then began to use foul lan- guage and was immediately discharged.'5 Quillen testified that Everett Simpson, during his inter- view, stated that he had left early because he had to attend a funeral the next day and wanted to get some sleep. In response to Quillen's further queries, Simpson, although de- nying that he had received permission to leave on the night in question, did explain that I or 2 days earlier he had asked Carrender if he could go to the funeral. Simpson de- nied having spoken to any employee about leaving early.'6 All the above employees thus interviewed on June 6, ex- cept Gregory, who was terminated immediately, were told that they were subject to discharge and were instructed to report to the office the next morning to learn what action the Respondent planned to take. The employees came back on June 7 as directed and were separately informed by Quillen of their immediate discharges. They each received a copy of their "Employee Records Report" showing that they had been terminated for "misconduct and insubordi- nation." The remaining participant in the walkout, Owen Bunch,' called Quillen on Wednesday, June 8. When Quillen asked why he had not come to his office for a hearing, Bunch replied that he had heard that Quillen had pulled his card and assumed that he was fired. Quillen testified that he then told Bunch that Carrender had reported that he had clocked out early on June 3-4 without a valid reason. Ac- cordingly, Bunch was told that he was fired and to come in for his pay. When Bunch appeared, Quillen, as with the others, gave him a copy of his "Employee Records Report," which showed that he, too, had been discharged for "mis- conduct and insubordination." During the afternoon of June 6, after the employees un- der discipline had been interviewed, Quillen summoned em- 14 Haynes initially testified that, when called into Quillen's office, he re- sponded to the questions asked by declaring that the men had gone home early because they had worked their hours and were tired of working, that it was his belief that a man did not have to work all the time. To this, Quillen had replied that the men would work to any "damn time he told them." However, on further examination, Haynes was certain only that when Quil- len opened their conversation by asking if he had taken the notion to go home he had said yes. Haynes could not recall whether he also had stated that the men were tired of working all the time. In view of Haynes' uncer- tainty, I credit Quillen's account. ' Gregory testified that at the start of the interview Quillen told him that their meeting was on the subject of being fired. Gregory had replied that others could come and go anytime and nothing was said. In response to Quillen's questions, he declared that he had left because Kenneth Perry had been laughing and joking about leaving and because he had worked his 9 hours. Gregory stated that both he and Quillen had cursed at each other and that when Quillen handed him his check, telling Gregory that he did not want to see him on the Respondent's property any more, Gregory had told Quillen "to shove it up his tail." 16 Simpson did not testify at the hearing. 7 Bunch, who also did not testify at the hearing, had first been employed by the Respondent on October 3, 1976, and, for various infractions, had been terminated by the Respondent twice before, in November 1976 and Febru- ary 1977. He had begun his most recent employment with the Respondent on May 13. 616 J. P. HAMER LUMBER COMPANY ployees Carol Branscum, Lester Loveless, Kenneth and Robert Perry, and William Decker to his office, where he met with them one at a time, again in the presence of May- nard and Carrender. These employees related that at least one of the seven discharged employees had asked each to leave with them at 12:30 a.m. Loveless told Quillen that he had been approached by Bunch, Hayes, and McMullin but had refused to go with them. Branscum related that on the night in question she had been asked to leave at 12:30 by Haynes, Cook, McMullin, and Simpson but had refused. Decker and the Perrys also stated some of the seven em- ployees had invited them to leave but that they, too, had declined, the Perrys having received permission to leave early that night. Quillen testified that he arrived at the decision to termi- nate the seven employees after discussing the matter further with Maynard and Carrender early on the morning of June 7 and that the discharges were consistent with measures taken in the past as to employees who had left work before the end of their shift without valid explanation or permis- sion.8 As requested, while this case was in the investigatory stage, Quillen wrote a letter, dated July 25, to the Regional Director, setting forth his reasons for having discharged the seven employees, noting their early, unauthorized depar- tures and the various employee interviews conducted on June 6 with employees who had participated in the walkout and those who had refused to take part. Quillen, in his letter, quoted a passage from the employee handbook, "Your Job And Ours," which required that em- ployees who felt unavoidably obliged to attend to personal matters during working hours request permission from their supervisors, who, depending upon the urgency of the re- quest, would determine when the employee could best be spared.9 Quillen stated in his letter that Gregory had been termi- nated on June 6 for having used "abusive language and obscenities" to his supervisor in violation of one of the Company's posted work rules, whereby employees were subjected to discharge for insubordination. The other six employees, it was explained, were terminated because of their attempts to persuade other employees to leave with them, in violation of another rule, providing for the dis- charge of employees who instigated or counseled others to engage in a work stoppage or slowdown. As noted, those dischargees who appeared and testified, Hayes, Haynes, McMullin, and Gregory, related that they had left the April meeting where the work schedule had been changed with the belief that the hours established af- ter the first vote would be those effectuated and, accord- ingly, that the work hours on Mondays through Wednes- days would be from 3:30 p.m. to 1:30 a.m. and on Thursdays and Fridays their shift properly should be re- leased at 12:30 a.m. "Quillen recalled that he had refused requests to reinstate Bunch and Haynes after the) were terminated. '9 Quillen presumed that the employee handbook and its predecessor had been distributed to all employees but was not certain that this was being done continuously or that the affected employees actually had received cop- ies. However, certain portions of the handbook. relating to rules for disci- pline, also referred to in his letter, had been reproduced and posted on the bulletin board. Billy Haynes testified that after the work hours were re- scheduled in April he continued to complain to Carrender two to three times a week about the number of overtime hours he was being compelled to work, to no effect. Haynes related that on Friday, June 3, before the start of the shift, Carrender had told him that they were going to work 9 hours that night and conclude the shift by 12:30. However, at around 10 p.m., Carrender went around the plant and told Haynes and other employees that they would have to work longer. Haynes related that he and others on the shift were angered by this news and began to talk among them- selves about going home at 12:30 anyway when their 9 hours were up. During a break, Haynes spoke to employees Wayne Genoe, "Little Red" Strunk, Rexel Gregory, and one or two others about leaving at 12:30, telling them that he was tired of working so long. Genoe, at that time, had agreed to leave with Haynes but ultimately did not. During another break, Haynes also spoke to employee John Chan- ey about leaving, but Chaney, stating fear of discharge, had refused to go along. That night Haynes also discussed leav- ing work at 12:30 with Simpson, Hayes, and McMullin. Haynes related that at about 10 that night he told Car- render that he was going home at 12:30 because his 9 hours would then be up. Carrender replied that if he did he would be fired. At midnight Haynes told Carrender that he and McMullin were going home when their 9 hours were up, at 12:30. Carrender's response was that he had better not go. At about 12:30 a.m., Haynes saw Simpson, McMullin, and Hayes punch out and leave. Haynes then did the same, departing with Gregory. Haynes thereafter was interviewed on June 6, as described above, and told of his termination on the following day. 0 Paul McMullin testified that at about 10 p.m. on June 3. during a break with other employees, including Haynes, Bunch, and Gregory, the long working hours required by the Respondent were discussed, and some of those present decided that when their 9 hours of work that night were completed, at 12:30, they would go home. Also in the vicinity of 10 p.m., while in the file room, McMullin told Carrender that he was leaving at 12:30, as by then he would have put in the 9 hours he was supposed to work. Carrender did not reply. Later that night, Simpson asked McMullin if he was going to go home at 12:30. When McMullin replied, for the above reasons, that he would, Simpson stated that he, too, was going to leave. On the night in question, McMullin had been operating the knot saw, which he cleaned before leaving. McMullin, too, was interviewed on June 6 and terminated the next day. Mike Hayes testified that he did not tell Carrender or any other management representative that he was planning to leave work early but related that during the course of the June 3-4 shift he agreed with his stepfather, McMullin, that they would leave after working 9 hours that night. Also, during their 10 p.m. break, Hayes had asked Gerald Cook if "I Approximately 2 weeks after his discharge, Haynes had a chance meet- ing with Carrender, who suggested that if Haynes went back and saw Quillen the latter would put him back to work. However, when Haynes did go to see Quillen at the plant, Quillen told Haynes that he did not want to see him, that he had a hell of a nerve coming back, and that before he would rehire Haynes. he would shut down the whole place. 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would join him and other employees in protesting the work hours. Cook said that he would. Another employee, Forrest McDaniel, also agreed to join the protest but ulti- mately remained on the job. Although at 12:30 he was working near Carrender in the rear of the plant, Hayes, without telling Carrender, then walked to the front of the plant, punched out, and left with McMullin and the oth- ers.2 Rexel Gregory 2 testified that on the night of June 3, while on break, he, Haynes, Simpson, and Hayes talked about working their 9 hours that night and then punching out. At around 10 p.m., Gregory, while working on the glue line, told an employee named Foster that he and some other employees were going to go home at 12:30 a.m. In response to Gregory's invitation to join them, Foster said that he, too, would go but later did not. At about 12:30, before leaving, Gregory called out to Carrender, then some 20 feet away, "Cut it off, we are going home at 12:30."3 Gregory left with the others and, as noted, was fired dur- ing his June 6 interview, a bit earlier than the others, having used strong language to Quillen. The record reveals that nothing was said by the employ- ees during their June 3 discussions as to what they would do about leaving work early in future weeks. Their talk merely had centered on their weariness and determination on the day in question. At no time before discharging them did the Respondent ask the affected employees whether they there- after would refuse to work until 1:30 a.m.; nor were any warned that a continued insistence on leaving early would lead to discharge. B. Discussion and Concluding Findings Administrative Law Judge Goerlich, in his Board-ap- proved decision in Oklahoma Allied Telephone Company, Inc.,2 set forth applicable principles in determining the ex- istence of concerted activity. Judge Goerlich noted that when an employee's activities are not solely by or on behalf of himself but are with or on behalf of other employees, and his relevant grievance is inextricably enmeshed with the complaints of other employees and could not be adjusted favorably without benefits from such adjustment flowing to the other employees similarly situated, the employee's ac- tions taken in furtherance of such a grievance are con- certed. The cohesiveness of concerted activity need not be more than a suggestion of group action. In fact, the exis- tence of a group need not be communicated to manage- ment.25 The Board has held that (210 NLRB at 920): "Even individual protests are protected as concerted activity if the matter at issue is of moment to the group 21 Approximately I month after his discharge on June 7, following his interview of the day before, Hayes, too, coincidentally encountered Carren- der, who told him that if he went to see Quillen the superintendent would put him back to work. However, when Hayes, following this suggestion, went to Quillen's office, he was told that the Company did not need anyone. :2 Gregory began his employment with the Respondent on April 15. 2' In view of the distance and intervening machinery in the plant, I credit Carrender's testimony that he did not hear Gregory shout that he was leav- ing. Gregory did not otherwise attempt to communicate his departure to Carrender. U210 NLRB 916 (1974). 25 Hugh H. Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1349 (3d Cir. 1969). of employees complaining and if the matter is brought to the attention of management by a spokesman, vol- untary or appointed for that purpose, so long as such person is speaking for the benefit of the interested group." Carbet Corporation, 191 NLRB 892; see also Hugh H. Wilson Corporation, 171 NLRB 1040; The Barnsider, Inc., 195 NLRB 754 and Guernsey-Muskin- gum Electric Cooperative, Inc., 124 NLRB 618. The undisputed testimony of the employees in the instant case establishes that they discussed among themselves the common problem posed by their many hours of overtime and what their responses should be. Many had done so more than once. These conversations, addressed to a shared problem, provided mutual assurance and affected the re- solve of these men to take the course they ultimately pur- sued. Although only two of the employees informed the Respondent that they would not work until 1:30 a.m., it could be concluded from the record herein, in the light of the foregoing principles, that no employee was alone either in his action or his interest. As in Oklahoma Allied Tele- phone Company, supra, the grievance of each was enmeshed with the complaint of the others, and all would have bene- fited from the adjustment of the matter. I therefore con- clude that the dischargees acted concertedly when they re- fused to work the additional hour and walked out. Noting the cohesive timing of the refusals by the employ- ees to work on the night in question past 12:30 a.m., as shown in the timecards, in the context of their common interest in the shared problem, I conclude that the Respon- dent knew of the concerted nature of the dischargees' con- duct when it took action against them. Their intent to leave had been brought to Carrender's attention in advance, and Carrender, admittedly, did nothing to check out the matter. I find his testimony that he did not know what was happen- ing that night to be incredible. Any lack of awareness by Carrender of the events developing around him was based on a deliberate disregard. Rather, I credit the testimony of Haynes and McMullin that they had told Carrender twice and once, respectively, of their intent to leave at 12:30 after 9 hours' work, as this is consistent with other undisputed evidence that Carrender had received notice of the walkout and comports with the general atmosphere in the plant at the time. Carrender also had known earlier of dissatisfaction with the long working hours, as Haynes credibly testified he had complained to Carrender on this subject an average of two to three times a week and McMullin, too, had made prior protest. Carren- der's knowledge in this area is imputable to the Respon- dent. Quillen, too, on the facts herein, including the as- cribed information, must or should have come to the same realization and recognized that the simultaneous departure of seven employees was more than coincidental? Certainly, by the following week, when the terminations were formal- ized, the Respondent had had sufficient opportunity for overview to have recognized the concerted nature and pur- pose of its employees' protest. The Respondent's disinclina- tion to do so does not constitute a defense. This conclusion is not altered by the dischargees' conduct 26 Except for Bunch, the Respondent offered no evidence that the dis- chargees had poor work records. 618 J. P. HAMER LUMBER COMPANY during the June 6 interviews when. individually confronted by Quillen. Maynard, and Carrender. with their positions in jeopardy, they generally vacillated and gave irrelevant rea- sons for their walkout. As found from the credited evidence, these employees' earlier concerted activity and its purpose were already known to the Respondent. Their activity did not lose any warranted protection because, in the circum- stances of the interviews, they tried to keep their jobs. In Polytech, Incorporated, 2 ' the Board distinguished John S. Swift Company. Inc.,'8 from N. L.R.B. v. Washington Alu- minum Company, Inc,2 and First National Bank of Omaha,10 upon which the General Counsel principally re- lies. In Washington Aluminum, supra, as summarized in Polv- tech, supra, the Supreme Court held that when a group of unrepresented employees spontaneously ceased work after reporting to their jobs because of their dissatisfaction with a condition in the plant, their concerted action was entitled to the Act's protection although the stoppage had occurred without any advance notice to the employer and there had been no prior demand for a change in the prevailing work- ing condition. In the subsequently arising First National Bank of Omaha case, supra, the Board held, with court approval, that a previously unannounced concerted refusal by a group of unrepresented employees to work overtime, inspired by their dissatisfaction with the employer's overtime policies, was presumptively protected concerted activity. The hold- ing made clear that the stoppage did not lose its protected nature because it was limited in duration to the overtime hours and was unaccompanied by any affirmative indica- tion as to what the employees intended to do in the future if the employer continued to maintain the existing overtime policies. In Swift, supra, the Board held that the concerted refusal by employees to work overtime was unprotected even though the employees had not previously engaged in such conduct. In that matter, the walkout occurred during bar- gaining negotiations and the employees had previously in- dicated to their employer that they would use the tactic of refusing to work overtime as a means of enforcing the em- ployer's concessions in bargaining. The employer thereupon notified each employee that he could not remain employed unless he expressed the willingness to comply with the em- ployer's orders in the future. The employees refused to fur- nish the requested assurances. As the Board noted in the Omaha and Polytech cases, Swift and other cases in its line are distinguishable from the situation subsequently pre- sented in First National Bank of Omaha in that in Swift the employees' refusal to perform the assigned overtime work was in affirmation of their previously announced intention of embarking on intermittent or recurring strikes as a bar- gaining tactic. Polvtech sets forth the reasoning in Swift (in which it was held that concerted refusals to work overtime were unprotected) as follows (195 NLRB at 696): "[W]hen employees engage in repeated work stoppages 27 195 NLRB 695. 696 (1972). 21 124 NLRB 394, 396 (1959). enfd. 277 F.2d 641 (7th Cir. 1960). 29 370 U.S. 9 (1962). 30171 NLRB 1145 (1968). enfd 413 F2d 921 (th Cir. 1969). limited to a portion of the working day, they are plainly unwilling to assume the status of strikers-a status contemplating a risk of replacement and a loss of pay ... employees cannot properly seek to maintain the benefits of remaining in a paid employee status while refusing to perform all the work they were hired to do." The Board, in Polytech, from its above analysis of the Washington Aluminum, Omaha, and Swift cases, found (195 NLRB at 696): . . . the existence of a presumption that a single con- certed refusal to work overtime is a protected strike activity; and that such presumption should be deemed rebutted when and only when the evidence demon- strates that the stoppage is a part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer. In the present matter, as in Washington Aluminum, Omaha, and Polytech, the employees are unrepresented and do not have the benefit of established procedures to protest undesirable working conditions.' As in Washington Alumi- num and Polytech, their work refusal was not preceded by specific demands upon their employer, and their rejection of the overtime assignment included no discussion with the Respondent of future plans. The evidence did not show that the refusal by these employees to accept the 10-hour shift on June 3-4 was part of a plan or pattern of intermittent action inconsistent with a genuine strike or performance by 1j The Respondent, citing Washington Aluminum. Polvtech, Incorporated N.L.R B v. Sen-Air, Inc. 401 F.2d 363 (lOth Cir. 1968); and Advance Indus- tries Division-Overhead Door Corporation v. N.L.R.B.. 540 F.2d 878 (7th Cir. 1976). contends that the walkout herein was unprotected, as the Respondent had published a grievance procedure through which the employees were bound to have pursued their complaint. The Respondent refers to a proce- dure it unilaterally had imposed before the advent of the Union whereby employees could bring complaints to management's attention through their supervisors. The final steps was a "hearing" in Quillen's office. In the Board's decision in Advance Industries Division-Overhead Door Corporation, 220 NLRB 431. 432 (1975). by which, of course, I am bound, it was found that "the existence of a grievance procedure unilaterally established by Respon- dent does not provide a sufficient basis for denying the protection of the Act to the ... employees." there distinguishing between that type of grievance procedure and one reached mutually through the collective-bargaining pro- cess. Although the court did not agree that the grievance procedure in Ad- vance Industries should be discounted as unilaterally imposed, the circum- stances are distinguishable, as the employees in that case had seriously compromised the Employer's property right by refusing to leave the plant, the court found no evidence that the grievance procedure was ineffective or sham and, in such circumstances, found that the employees could not justify their refusal to leave the plant on the grounds that no other method was available to present their grievance. In the present case, the employees' ac- tions were less extreme. The employees did not occupy the Respondent's premises but merely left work an hour early. In addition, the "hearing" in Quillen's office, which culminates the Respondent's grievance procedure, as the evidence establishes, is also associated with the Respondent's disciplinary procedure and symbolizes the Respondent's control. The other cases cited by the Respondent are not supportive. In Washing- ton Aluminum, Serv-Air. Inc., and Poly tech, Incorporated, the respective tribu- nals, in finding violations, cited that the employees had no bargaining repre- sentative and no established or structured grievance procedures. As in the Board's A4dvance Industries decision, a reading of these cases indicates that the referred grievance procedure means one established contractually by mu- tual agreement. 619 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the work normally expected of them, so as to rebut the presumption prescrbed in Polvech.32 I therefore conclude that the Respondent's discharge of the employees was violative of Section 8(a)( 1) of the Act."3 IV. THE EFFEECI OF THE UNFAIR LABOR PRACTICES UPON (C )MMERC E The activities of the Respondent set forth in section 111, above, occurring in connection with the Respondent's op- erations described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent violated Section 8(a)( ) of the Act by discharging Billy Haynes, Paul McMullin, Mike Hayes, Gerald Cook, Everett Simpson, Owen Bunch, and Rexel Gregory, I will recommend that the Respondent offer them immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and reimburse them for any loss of pay and other employee benefits they may have suffered. Backpay and interest thereon shall be computed in the manner described in F W. Woolworth Company 3 4 and Florida Steel Corpora- lion. '5 Upon the basis of the foregoing findings of fact, and upon the entire record in the case. I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Billy Haynes, Paul McMullin, Mike Hayes, Gerald Cook, Everett Simpson, Owen Bunch. and Rexel Gregory, the Respondent has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section IO(c) of the Act, I hereby issue the following recommended: 32 No merit is found in the Respondent's contention that Gregory's use of strong language to Quillen during the June 6 interview warrants denying him reinstatement. The burden to establish a basis for denial of reinstatement is upon the party seeking to block reinstatement. Big "G" Corporation, 223 NLRB 1349 (1976). The statements attributed to Gregory were nothing more than rough language by a man under stress of discharge, and there is no evidence that violence was intended or that it occurred. Asplundh Tree E.x- pert Company. 220 NLRB 352, fn. 2 (1975). Accordingly, the Respondent's burden in this regard has not been met. 13 Also see Florida Steel Corporation, 221 NLRB 554, 558-559 (1975). - 90 NLRB 289 (1950). 35 231 NLRB 651 (1977). See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER 36 The Respondent, J. P. Hamer Lumber Company, Divi- sion of Gamble Brothers, Inc., Burnside, Kentucky, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees by discharging or in any other manner discriminating against them for striking, conducting a work stoppage, or engaging otherwise in concerted protected activities. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) Offer Billy Haynes, Paul McMullin, Mike Hayes, Gerald Cook, Everett Simpson, Owen Bunch, and Rexel Gregory immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files the discharge notices to the above-named employees issued in connection with their protected concerted walkout in refusing to work additional overtime on June 4, 1977, and refrain from using them as grounds for further disciplinary action against these em- ployees. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Burnside, Kentucky, facility copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Re- gion 9, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 1e In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recoinmended Order herein shall, as provided by 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. "7 In the event that this Order is enforced by ajudgment 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." 620