The C. J. Krehbiel Co.

THE C. J. KREHBIEL CO. 383 The C. J. Krehbiel Company and Pam Smith, -and Karen A. McCain. Case 9-CA-10014-1 and 9- CA-10014-2 December 17, 1976 DECISION AND ORDER BY CHAIRMAN 'MURPHY AND' MEMBERS FANNING AND JENKINS On July 23, 1976, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 'and the attached Decision in light'-of the exceptions and brief and has 'decided to affirm the rulings, fmdings, and conclusions of the'Administrative Law Judge and, to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board- adopts as, its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that, the Respondent, The C. J. Kreh- biel Company, -Cincinnati, Ohio, -its-officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. - DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Cincinnati, Ohio, upon a consolidated complaint,' issued by the Regional Director for Region 9, which alleges that the Respondent, C. J_ Krehbiel Company,2 violated Section 8(a)(l) of the National Labor Relations Act, as amended. More particularly, the consolidated complaint alleges that the Respondent unlawfully discharged Pam Smith and Karen A. McCann because they engaged in the concerted protected activity of walking of the job to protest what they believed to be an unfair job, assignment. The Respon- 1 The principal docket entries in this case are as follows: Simultaneous charges filed in this case by Pam Smith and Karen A McCain on February 3, 1976, consolidated complaint issued on March 31, 1976; Respondent's answer filed on April 9, 1976; hearing held in Cincinnati, Ohio, on June 4 976; and briefs filed by the General Counsel and the Respondent on Jul;y 13, 1976 2 Respondent admits, and I find, that it is an Ohio corporation which maintains its principal place of business in Cincinnati, Ohio, where it is 227 NLRB No. 15 dent maintains that the Charging Partiesquit their employ- ment and-that their activity Was, in any event, unprotected. Upon these contentions the issues herein were joined. The Alleged Unfair Labor ,Practices Respondent operates a printing establishment in Cincin- nati, Ohio, where' it prints, binds, and ships various kinds of books and other publications. It employs about 100 persons on a two-shift operation. The night shift, which is involved in this dispute, works from 4:30 p.m. until 1 a.m., and is composed of about 25 employees. On the day shift, the bindery and the shipping departments are operated as separate departments. However, because of the reduced employee complement at' night, the two operations are combined under the direct- supervision of Night Foreman 'Charles Goforth.- Both Charging Parties have worked in the shipping section on the night shift for about 2 years. There is no dispute that- both are competent and qualified employees with good work records. On Friday evening, January" 30, they came to wark as usual and were requested, along with 'employees Joyce House and Georgia Walters, to work -on the'Wire-O section during4hat'evening. On the preceding days of thatweek, Mrs. McCain and Mrs. Smith worked a standup job in - the shipping department on the shrink -packing machine, a job which involved the lifting and wrapping of books. This was their normal work assignment. At the beginning of the Friday evening-shift, they were =first assigned to a machine in the Wire-O -section which binds printed "signatures"-which are large printed sheets contain- ing several pages. About 5:45 p.m. Goforth asked all four employees to work the 3-knife machine, which cuts "signa- tures" into a book form. Working the 3-knife machine is a team operation and, in the opinion of Mrs. McCain -and Mrs. Smith, is a job which requires them to work at a more intense pace than required- by other jobs then being performed in the- bindery by other employees. The two briefly discussed between themselves their displeasure at being assigned to what they believed to be a difficult job while others were working on other assignments at a more leisurely pace. - At the ' 6:30 p.m. break, they went to see Goforth in, his office. Mrs. McCain voiced their common displeasure at the work assignment. She told Goforth that she thought they were being treated unfairly and were going home. They did. not say that they were quitting. Goforth asked them how long they had felt-this way, and Mrs. Smith ,replied "a long time." Goforth's only response was that the employees did not pick their jobs. The nub of their grievance was the feeling that they had performed a difficult assignment all week and then were- transferred on the final day of the workweek to a difficult standup job while other bindery employees, who had received compara- tively easy assignments throughout the week, continued to engaged in the punting and binding of books. During the past calendar year, it shipped goods valued in excess of $50,000 from Cincinnati to points and places located outside the State of Ohio, and purchased at Cincinnati, from points and places outside the State of Ohio, goods and materials valued in excess of $50,000. Accordingly, Respondent is an employer within the meaning of Sec. 2(6) and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work at sitdown or more leisurely'paced jobs. In particular, they thought they should have been left in the Wire-O section or transferred to the plastics section. They told Goforth that they were going to punch out and did so, returning their timecards to his desk before they left the plant. Goforth wrote on their timesheets that they had quit. The two women returned to the plant the following Monday afternoon ready to go to work'and asked to see Charles Krehbiel, the president -ofthe Company. He was not available, so they were told to speak to Robert Krehbiel, the vice president and treasurer of the Company. Robert Krehbiel had not been informed previous to this time of the events of the preceding Friday evening. He was interrupted during a sales discussion by Day Foreman Michael Sponzelli, who told hun briefly what he knew of the Friday evening walkout. Sponzelli informed Krehbiel that Mrs. McCain and Mrs. Smith were,waiting to speak with him and then left. Krehbiel called Goforth into the office and the four of them began to discuss what had ,occurred. Goforth began the discussion by telling Krehbiel that the two, employees had walked off in protest of .the- work assignment which ,he had , given them. He reminded Krehbiel that he was responsible for production in the bindery on the night shift and insisted that, if these employees were going to refuse assignments which he gave them, they should not be permitted to return. Goforth admitted that they had.been good workers but stated that, if Krehbiel let those employees get away with what they did, he would lose supervisory control over the bindery. Mrs. McCain said she did not think she was getting away with anything. The employees voiced the objection that they had been working the shrink-packer machine during the entire week until Friday evening with insufficient help. They felt they were entitled to an easier assignment on Friday evening rather than see the easy assignments given to other -employees in. the bindery. Goforth maintained that he was fair in the manner in which he rotated jobs. After hearing Goforth's recommendation to Krehbiel, Mrs. McCain stated that, if that was how Goforth felt, she would like a good letter of recommendation. Krehbiel testified that he knew how Goforth felt and was backing him 100 percent. He told the employees that, "Charlie was running the bindery" and "he knows which is best." He denied that either he or Goforth ever used the words "fired," "dis- charged," or other words of similar import during the conference, but conceded that he could understand-how the Charging Parties could be led to believe that they were being discharged. I credit the testimony of both Charging Parties that in fact Goforth said during this conference that the two employees should be discharged or let go. Both left the plant immediately after the 'discussion ended in Kreh- biel's office and were not permitted to go to work. During that evening, Mrs. McCain's husband called Goforth at the plant and objected to his action in firing her. Goforth's reply was that she was not fired but had walked off the job. Mrs. Smith also called Goforth to ask him why he had told Mrs. McCain's husband that they had quit. She said they did not quit. Goforth's reply was, "Well, you walked off the job." Mrs. Smith replied that they would not have showed up for work on Monday if they had quit. Goforth told her that he had not expected to see her on Monday. On the following day, Mrs. Smith, acting upon advice of counsel, called Goforth and asked to get her job back. Goforth spoke with both of the Krehbiels and informed her that they had no change in attitude and that she could not come back. On that evening, Mrs. McCain called Krehbiel and asked him if she could come back to work. Having received no definite answer, she called, back and was told by Krehbiel that she could not come back since she had a personality conflict with Goforth. Some 10 or 12 weeks later, the Respondent restored both the Charging Parties to duty in positions which the General Counsel acknowledges are equivalent to the positions from which they were terminated. Analysis and conclusion The only issue of any significance in this case is whether Mrs. McCain and Mrs. Smith quit or whether they were discharged on February 2. Goforth treated their departure on the evening of January 30 -to be a voluntary quit as of that time, but such is not the Respondent' s legal -position before the Board. Respondent's formal position is'that both employees quit on the afternoon of February 2 in the course of the conference with Krehbiel and Goforth. The General Counsel maintains they were discharged at the time. The test of whether an employee quit or was discharged is whether the statements and action of the employer at the time of the termination would reasonably lead him to believe that he had been discharged. N.LR.B. v. Hilton Mobile Homes, 387 F.2d 7' (C.A. 8, 1967). The fact that the Respondent's employees received ' no formal -notice - of discharge in accordance with the Employer's normal practice is immaterial if they could logically infer that their employment status had been terminated by the Employer. N.LR.B. v. Comfort, Inc., 365 F.2d 867 (C.A. 8, 1966). I have credited the testimony of both Charging Parties that, in the course of the Monday afternoon interview, Goforth recommended to Krehbiel that they be discharged. While Goforth denies using any special words connoting dis- charge, an inference can and should be drawn from his admitted remarks that he was making such a recommenda- tion. When Goforth stated to Krehbiel that Mrs. Smith and Mrs. McCain should not be allowed to get away with what they did, the clear import is that Krebiel should terminate them. Krehbiel admits in his testimony that he was backing Goforth "100 percent" and further admits that he could understand- how the two employees might have thought they had been discharged'. Their action in showing up on Monday ready to go to work, taken together with their immediate and repeated protests after arriving home from the conference, clearly indicate no intention on their part to quit. The only straw that the Respondent can seize upon to support its contention of a voluntary quit on their part is the statement of one (but not both) employees that, "if this is the way Charlie felt," she wanted a, good letter of recommendation. Such a statement is not an indication of a voluntary quit but a response to a situation in which she believed she had already been fired. Accordingly, I con- clude that on February 2 , 1976, Respondent terminated Mrs. Smith and Mrs. McCain by its own act and deed. THE 'C. J. KREHBIEL CO. 385 It can hardly be denied that the reason for the discharge was the fact that both employees walked off the job on the preceding Friday °to protest a job assignment. The reason for the protest was brought to Goforth's attention before the-women left and was the entire subject of the discussion on Monday preceding the discharge. It is established beyond peradventure that- a walkout of employees to protest job conditions is activity protected by the Act. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962). It is of no moment whether the nature of the grievance is legitimate or frivolous, or whether the protest is wise or unwise. N.L.RB. v. E. A. Holcombe, etc., d/b/a Holcombe Armature, 325 F.2d 508 (C.A. 5, 1963). Indeed, the Board is in no position to pass upon the merits of employee grievances. It is sufficient to invoke the protection of Section 7 of the Act if the grievance was job-related and if the protest sparked by the grievances was the concerted action of two or more employees. The Friday evening incident contains all of the elements of protected concerted activity on the part of the two protesting employees. As they were discharged for engaging in such activity, the discharge violates Section 8(a)(1) of the Act. I so find and conclude. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent The C. J. Krehbiel Company is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Karen A . McCain and Pam Smith on February 2, 1976, Respondent violated Section 8(a)(1) of the Act. 3. The unfair labor practice found herein affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent herein committed certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take other actions designed to effectuate the purposes and policies of the Act. Since the violation of Section 8(a)(1) involves a discharge for engaging in concerted protected activities, it goes to the heart of the Act. Accordingly, I will recommend a so-called broad 8(a)(1) order designed to suppress any and all violations of that section. J.C. Penney Co., Inc., 172 NLRB 1279, fn. 1 (1968); Adam and Eve Cosmetics, Inc., 218 NLRB 1317 (1975); Thermo Electric Co., Inc., 222 NLRB 358 (1976). Since the Respondent has already reinstated both discharged individuals to the same or substantially equivalent employment, I will not include in the proposed order the usual reinstatement language since it would be meaningless under these circumstances. I will recommend that the Respondent be required to make whole Karen A. McCain and Pam Smith for any loss of pay which they have suffered because of the discharge in question, to be computed in accordance with the Woolworth rule 2 with interest thereon at six percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I will also recommend that the Respondent be required to post the usual notice, notifying its employees of their rights and of the remedy in this case. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to -Section 10(c) of the Act, 1 make the following recommended: - ORDERS Respondent, The C. J. Krehbiel Company, Cincinnati, Ohio, its officers, agents, supervisors, successors, and assigns, shall: 1. Cease and desist from interfering with, coercing, or restraining employees in the exercise of rights guaranteed them by Section 7 of the Act by discharging them or by any other means. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Make whole Pam Smith and Karen A. McCain for any loss of pay they have suffered by reason of the interference by Respondent with their Section 7 rights, as found herein, in the manner described in the section of this decision entitled "The Remedy." (b) Post at its Cincinnati, Ohio, plant copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 F W. Woolworth Company, 90 NLRB 289 (1950). 3 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 recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 4 In the event the Board's Order is enforced by a Judgment of the 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 " 386 DECISIONS OF 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 discharge employees for the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act, nor will we interfere with, restrain, or coerce employees by any means in the exercise of such rights. These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted protected activities for their mutual aid and protection. WE WILL make whole Karen A. McCain and Pam Smith for any loss of pay which they suffered by reason of their discharge, with interest thereon computed at 6 percent per annum. THE C. J. KREHBIEL COMPANY