Polytech, Inc.

POLYTECH, INCORPORATED 695 Polytech, Incorporated and Ronald Lawrence. Case 14-CA-6213 March 2, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 22, 1971, Trial Examiner Melvin Pol- lack issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a sup- porting 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 Trial Examiner's Decision in light of the exceptions and brief and finds merit in the General Counsel's exceptions. The Board has therefore decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent that they are consistent with its Decision below. The issue in this case is whether the five employees in the casting department who concertedly decided not to work overtime after 4 p.m. on April 5, 1971, were engaged in a protected concerted activity. The Trial Examiner found, in agreement with the Respondent, that their conduct was not protected and that their suspension for engaging in such conduct was therefore not violative of Section 8(a)(1) of the Act as alleged. We disagree for reasons set forth below. Facts As found by the Trial Examiner, the employee walk- out of April 5 and the Respondent's disciplining of the employees involved occurred in the following circum- stances: Respondent is engaged in the manufacture of trans- parent plastic sheets. The regularly assigned casting department's complement consisted of six employees as of April 5, 1971,'all of whom were told when they were hired that they were expected to do overtime work when called upon to do so.2 The employees had not refused, prior to April 5, to perform overtime work they were told or expected to do. None of Respondent's employees are represented by a union. Unless otherwise noted, all dates here described are in the year 1971. Employees were advised they would have to work overtime on a day-to- day basis depending on the work orders Respondent had to meet The overtime work included work on Saturdays, cleanup work scheduled at the end of the day, and work after the normal hours of a working day whenever it was necessary to complete the customer orders posted on the morning of that day. During the several weeks preceding April 5, the em- ployees in the casting department were expected to do increasing amounts of overtime work. They considered these overtime assignments to be both excessive and unduly burdensome inasmuch as the lifting of the glass molds used in the department was very heavy work, requiring two to four men for each mold; there was a shortage of personnel from time to time; and there was a lack of adequate ventilation. On April 5, the department was short one ex- perienced employee3 and it became evident to the other employees that in order to complete the orders posted by Respondent for that day's completion, it would again be necessary for them to work overtime. The absence of one of the regularly scheduled employees was particularly felt that day because the customer work orders posted that morning required the handling of more of the heavy molds than usual. At 2 p.m., the five employees met and decided they would not work overtime that evening. At or about 3:45 p.m. employee Kevin Meyer shut off his machine and the other four employees also began to make preparations to close down their work at the normal 4 p.m. quitting time. Mrs. Joyce McGowan, the Respondent's vice presi- dent, observed what was happening. She first ap- proached employee Kevin Meyer and 'questioned him as to why the machines were being shut down. Meyer replied that the menu were not going to work that night because they were all tired. Mrs. McGowan then ques- tioned the other four male employees individually as to whether they intended to work that night. Each replied that he did not. Mrs. McGowan then'asked the men to run the machines until the scheduled quitting time, and to this they agreed. Shortly thereafter she returned with her husband, Respondent's president, and again asked each employee individually' whether he intended to work overtime that, night. She received a negative re- sponse. Mrs. McGowan then notified each employee that there would be no work for him for the next 2 days. The five employees left the plant at 4., They returned to work on April 8, after their 2-day suspension. They had not and have not refused to work overtime on any other occasion.4 J Because of the absence of one of the employees, Respondent assigned Donald Iler, an employee regularly working in the mixing department to help out He, also, was expected to do overtime. There was, in addition, a sixth employee in the department who was a female and who was not expected to do heavy lifting. She was not involved in the walkout and was not, in fact, invited by the men to attend the meeting held in the plant to discuss the walkout. ' Iler, one of the five, testified that at the meeting the men intended not to work overtime only for the evening of April 5 and did not discuss or plan to refuse to work overtime in the future 195 NLRB No. 126 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion and Conclusions The holding in Swift, that the concerted refusal to In determining whether or not the above-described work stoppage was a protected concerted activity, we are guided, in the main, by the decision of the Supreme Court in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9. That decision held that when a group of un- represented employees spontaneously ceased work after reporting to their jobs because of unsatisfactory condition in the plant, their concerted action was enti- tled to the Act's protection-and this even though the stoppage occurred without any advance notice to the employer and there had been no prior demand for a change in the prevailing working conditions. In a case arising5 subsequently, the Board held, with court approval, that a previously unannounced con- certed refusal by a group of unrepresented employees to work overtime-one prompted by dissatisfaction with the employer's overtime policies-was a presump- tively protected concerted activity. The Board and the court6 made it clear that the stoppage did not lose its protected status because it was limited in duration to the overtime hours or was unaccompanied by any affirmative indication as to what the employees in- tended to do in the' future if the employer continued to maintain the existing overtime policies. The foregoing cases did not, of course, overrule the earlier decided Swift case, referred to by the Trial Ex- aminer, and the precedents on which that case rested. John S. Swift Company, 124 NLRB 394, 396, enfd. 277 F.2d 641 (C.A. 7). As noted by the Trial Examiner, the Board, in Swift, held unprotected a concerted refusal by employees to work overtime even though the em- ployees had not previously engaged in such conduct. However, the walkout occurred during bargaining 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 forcing the employer's concessions in bargaining; upon their use of bargaining tactic, their employer notified each of them that he could not remain employed unless he expressed a willingness to comply with the employer's orders in the future; and the employees refused to furnish the requested assurances. As was noted in the Omaha case, supra, what distinguished the Swift case and others similarly holding from the situation subsequently pre- sented in Omaha, was that the employees' refusal to work the overtime hours was significant only insofar as it affirmed the employees' previously announced inten- tion to embark on an intermittent or recurring strike as a bargaining tactic. 5 First National Bank of Omaha, 171 NLRB No 152, enfd 413 F.2d 921 (C.A 8) 6 First National Bank of Omaha, supra. work overtime was unprotected , reasons that when em- ployees engage in repeated work stoppages limited to a portion of the working day, they are plainly unwilling to assume the status of strikers-a status contemplat- ing a risk of replacement and a loss of pay. The princi- ple of these cases is that employees cannot properly seek to maintain the benefits of remaining in a paid employee status while refusing, nonetheless, to perform all of the work they were hired to do. The Trial Examiner found that this case was gov- erned by Swift. We do not agree. In his view, the failure of the men to explicate to Respondent what conditions they deemed unsatisfactory beyond mentioning the excessive overtime work and their saying they were "tired" and did not want to work that night , demon- strated their future intention to engage in similar unan- nounced walkouts at the end of their working day whenever they felt they had been working too much overtime, The Trial Examiner inferred, accordingly, that the men's future intentions were to engage in recurrent partial work stoppages . We find this infer- ence to be overdrawn . The fact, at best, provides no conclusive evidence one way or the other as to what the men would do in the future absent any change in the conditions which prompted their walkout . In this re- spect, the factual context of this case is not dissimilar to that of the Washington Aluminum and Omaha cases, supra: and in our view, these cases, rather than Swift, govern the instant case. Here, as in those cases, the question of whether a work stoppage of limited duration represented the employees' exercise of their protected right to strike is before us in a record barren of any evidence of previous engagements by the em- ployees in any work stoppages . Here, as in those cases, the employees are unrepresented and do not have the benefit of structured procedures to protest undesirable and fatiguing working conditions . Here, as there, their engagement in a work stoppage was not preceded by any specific demands upon their Employer for a change in working conditions ; and their decision to walk out was made for that single day and included no discus- sion of future plans. This analysis of the Washington Aluminum and Omaha cases demonstrated the existence of a presump- tion that a single concerted refusal to work overtime is a protected strike activity; and that such presumption should be deemed rebutted when and only when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action which is incon- sistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer. We find insufficient such evidence in this case and therefore find that the presumption has not been effectively rebutted. We thus conclude that Re- POLYTECH, INCORPORATED 697 spondent's disciplinary suspension of the employees was conduct violative of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, by suspending employees Donald her, Ronald Lawrence, Kevin Meyer, Terry Breck, and Donald Hatcher because they engaged in protected ac- tivities, we shall order that Respondent make these employees whole for any loss of earnings they may have suffered as a result of the unlawful action against them, by payment to them of a sum of money equal to what each of them would normally have earned as wages from the date of his suspension to the date Respondent reemployed him, less net earning during such period with backpay and interest thereon to be computed in manner prescribed in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Polytech, Incorprated is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By suspending Donald her, Ronald Lawrence, Kevin Meyer, Terry Breck, and Donald Hatcher for 2 days because they had engaged in protected activities, Respondent has interfered with , restrained, or coerced employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, and is 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. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Polytech, Incorporated, Overland, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing em- ployees by suspending or in any other manner dis- criminating against employees for striking or engaging otherwise in concerted protected activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Donald her, Ronald Lawrence, Ke- vin Meyer, Terry Breck, and Donald Hatcher for any loss of earnings each of them may have suffered by reason of the unlawful action against him in the manner set forth in the section in this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises at Overland, Missouri, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 14, after being duly signed by Respond- ent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' In the event that this Order is enforced by a Judgment of a UNITED States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees by suspending or discriminating against them in any other manner, for striking or for engaging in otherwise concerted, protected ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL make Donald Iler, Ronald Lawrence, Kevin Meyer, Terry Breck, and Ronald Hatcher whole for any loss of earnings they have suffered. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD POLYTECH, INCORPORATED (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice.or compliance with its provisions may be directed to the Board's Office, Room 448, 210 North 12th Boulevard, St. Louis, Missouri 63101, Telephone 622-4142. TRIAL EXAMINER'S DECISIONS STATEMENT OF THE CASE MELVIN POLLACK: This case was heard on August 23 and 25 and September 31, 1971, pursuant to charges filed on April 26 and May 26, 1971, and a complaint issued on June 24, 1971. The issue presented is whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by suspending five employees for 2 days because they engaged in a concerted refusal to work overtime. The General Counsel and the Respondent filed briefs after the close of the hearing. Upon the entire record, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Missouri corporation, manufactures trans- parent plastic sheets and related products at its plant in Over- land, Missouri. Its annual interstate sales exceed $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE UNFAIR LABOR PRACTICES A. The Facts Respondent employs 12 to 15 employees divided into fabri- cation and casting departments. Respondent schedules the casting of 73 transparent plastic sheets each working day. The casting is usually completed within the regular working day but sometimes requires overtime of an hour or so for comple- tion of the scheduled 73 sheets. Production is also occasion- ally scheduled for a Saturday to gain a workday. Cleanup work is also' regularly scheduled as overtime work. The casting work requires the lifting of heavy molds and is performed under hot and uncomfortable conditions. The casting employees worked 7 hours on Saturday, March 13, 1971,1 and 8 hours on Saturday, March 20. They also worked overtime 2 or 3 days in each of the following 2 weeks. Presi- dent Terence McGowan told the employees toward the end of March that he expected them to cast the scheduled 73 plastic sheets each day. Respondent employed 7 casting employees, including one woman, on April 5.1 One employee, Phil Cronin, was absent All dates hereafter are in 1971 unless otherwise stated Rosilee Engler at times helped carry glass sheets used to form molds but did not perform "heavy" work that day. Another employee, Terry Breck, was inexperienced. Production fell behind schedule and it was apparent that there would be overtime that night. After the morning "break," Donald Iler told leadman Ronald Lawrence that he was not going to work that night.' Lawrence said that "sounded fine" to him. At lunch, Lawrence and Iler spoke to Kevin-Meyer, Donald Hatcher, and Terry Breck about not working that night. The five men agreed at the 2 o'clock break that they would not work that night. The normal quitting hour is 4 p.m. At 3:40 p.m. Meyer started to close down the glass washer and the other men worked to complete the work in process. Vice President Joyce McGowan entered the casting room about,this time and asked Meyer why he was shutting down the glass washer, saying, "We are not done yet, we have more to come." Meyer answered that the men were tired of staying late "almost every night," that they were tired that day and had decided not to work that night. Mrs. McGowan told Meyer to run the washer until 4 o'clock. Meyer turned the washer back ,on and Mrs. McGowan walked out. She returned a few minutes later with Mr. McGowan. She asked the men if they were going to work that night. As each man answered "no," she said, "Well, we don't have any work for you, then, for the next two days." She asked the men what they were trying to prove. They replied they were not trying to prove anything, that they were tired that day and did not want to work. The men left the plant at 4 o'clock and returned to work on April 8.1 B. Analysis and Conclusions The General Counsel views the walkout on April 5 as a "single strike of limited duration" in protest against working conditions and the assignment of what the men considered excessive overtime. The Respondent contends that the men "were attempting to dictate their own terms and conditions of employment." The General Counsel relies principally on First National Bank of Omaha, 171 NLRB No. 152, affd. 413 F.2d 921 (C.A. 8), and the Respondent relies principally on John S. Swift Company, 124 NLRB 394, affd. 277 F.2d 641 (C.A. 7).5 In the Omaha case, employees protested against overtime work but failed to get adequate assurances that the bank would take action to reduce or eliminate overtime. Five employees walked out at, the end of the regular day to protest overtime work. They were discharged when they sought to return to work the next day. The Board found that nothing happened which could lead officials of the bank "reasonably to believe that continuous walkouts might be expected." In light of this finding, and the bank's failure to ascertain the intention of the employees on the working of overtime in the future, the Board further found that the employees "had not engaged in a partial, intermittent or recurrent strike such as would deprive their concerted action of the protection offered by Section 7' of the Act."6 Lawrence is paid 10-15 cents an hour more than the other employees. He is engaged in production work substantially the entire day. He directs the other employees in their work but this work is essentially routine He trains new employees and may be asked about the employees' work per- formance, but it does not appear that he initiates personnel action. I find that Lawrence is not a supervisor under the Act Iler left Respondent's employ that day. The precedent cases on employees who concertedly refuse to work the schedule imposed by their employer are analyzed in the Omaha case. The Eighth Circuit Court of Appeals sustained the Board on the ground that the employees had given the bank no reason to expect continuous walkouts. It noted, however, that the burden of proving the walkout pro- tected rested with the General Counsel was not shifted by the failure of the bank to inquire regarding the strikers' intentions for the future. POLYTECH, INCORPORATED 699 In Swift, employees informed their employer during a dis- pute over contract negotiations that they would not work overtime until the dispute was resolved.- They were dis- charged 2 weeks later when they refused to work overtime. The Board upheld the dismissals, holding that the employees' refusal to work overtime constituted an attempt to work on terms of their own choosing. I consider the present case governed by Swift rather than Omaha Meyers told Mrs. McGowan on April 5 that the men had been working overtime "almost every night" and were not going to work overtime that night because they were "tired." Mrs. McGowan's response was to the effect that they would be suspended for 2 days if they walked out without completing the scheduled work. She asked the men what they were trying to "prove" by the walkout. The men reiterated that they were tired. The work on April 5 was not markedly out of the ordinary. The employees completed the casting of heavy "cells" during regular hours and had comparatively light work to perform during the overtime period. Meyers' statement that the men would not work overtime that night because they had been working almost every night and were "tired," thus put Re- spondent on notice that the mem might walk out again if they felt that they had - been working too much overtime. The 2-day suspension was reasonably calculated to show that Re- spondent would not tolerate such conduct and was not such as to discourage the men from a legitimate protest against overtime work. In fact, Mrs. McGowan invited the men to tell her what the walkout was all about.' I find from their refusal to do so, and ,their insistence that they were "tired," that they evinced an intention to walk out whenever-they felt they had been working too much overtime. The walkout, accordingly, constituted an attempt by the employees to work overtime on their own terms rather than a limited strike in protest against Respondent's overtime policy or other work- ing conditions. I conclude that Respondent did not violate Section 8(a)(1) of the Act by suspending the casting employees for walking out on April 5 before they had completed the work scheduled that day. I shall therefore recommend that the complaint be dismissed. Upon the basis of the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. Polytech, Incorporated, is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The aforesaid employer had not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed. ' While the record shows that the men complained among themselves about defective equipment and shortage of personnel-conditions which led to overtime work-it does not appear that they ever took collective action to apprise the McGowans of their complaints.