J. W. Microelectronics Corporation

J. W. MICROELECTRONICS CORPORATION 327 J. W. Mircroelectronics Corporation and Kathy R. We also agree with the Administrative Law Sudler and Janice Johnson. Cases 4-CA- Judge that Respondent violated Section 8(a)(1) of 10173-1 and 4-CA-10173-2 the Act by terminating employees Janice Johnson November 18, 1981 and Kathy Sudler.3 Contrary to the Administrative Law Judge, we find that Johnson is entitled to re- DECISION AND ORDER instatement. We adopt the Administrative Law Judge's find- BY CHAIRMAN VAN DE WATER AND ing that Respondent's contention that it discharged MEMBERS FANNING, JENKINS, AND MEMBERS FANNING, JENKINS, AND Johnson for her racial remarks was pretextual, 4 al- though in making this finding, the Administrative On September 30, 1980, Administrative Law Law Judge concluded that, because of her remarks, Judge Elbert D. Gadsden issued the attached Deci- Johnson was not entitled to reinstatement. He sion in this proceeding. Thereafter, Respondent and stated that the unlawfulness of her termination the General Counsel filed exceptions and support- could not serve to condone the irresponsible and ing briefs. inflamatory racial remarks uttered by Johnson Pursuant to the provisions of Section 3(b) of the during the April 24, 1979, employee-management National Labor Relations Act, as amended, the Na- meeting. tional Labor Relations Board has delegated its au- It is well settled, however, that not every impro- thority in this proceeding to a three-member panel. priety committed in the course of Section 7 activi- The Board has considered the record and the at- ty deprives the offending employee of the protec- tached Decision in light of the exceptions and tion of the Act. A line must be drawn between sit- briefs and has decided to affirm the rulings, find- uations where employees exceed the bounds of ings, and conclusions of the Administrative Law lawful conduct in a moment of exuberance or in a Judge only to the extent consistent herewith. manner not activated by improper motives and We agree with the Administrative Law Judge those flagrant cases in which the misconduct is vio- that the employees' work stoppage was concerted lent or of such serious character as to render the activity for the purpose of "mutual aid or protec- employees unfit for further service. Viewed in con- tion" within the meaning of Section 7 of the Act. text, we do not consider Johnson's remarks so It is undisputed that the work stoppage was to pro- egregious as to warrant denying her the Act's com- test the harassment suffered by night-shift employ- plete protection. 5 ees when they left work. The employees wanted to Thus, as indicated, Johnson and her fellow work- be assured that, when leaving work, they would ers had been the victims of repeated racially moti- not be subject to racially motivated heckling or vated attacks culminating with the April 20, 1979, threats to their physical well-being. The employees incident. On April 23, when she asked Respond- therefore had a specific demand related to their ent's president, Williams, to meet with the employ- conditions of employment. Their problem existed ees, he refused. Later that afternoon, while John- only because of their attendance at work. Furthermore, the employees' concerns were not In fact, Respondent's actions in response to the concerns raised by the beyond Respondent's control. The hecklers were employees' work stoppage tends to belie its claim that the employees' problems in this regard were outside its control. Thus. Respondent was able to carry out their harassment of Respondent's able to get The Singer Company's agreement to build a fence around the employees because they were allowed to congre- parking lot in order to keep out trespassers. Respondent also urged the gate in the parking lot area, on property rented by local transit authority to move the bus stop used by the employees to the gate in the parking lot area, on property rented by front of Respondent's plant. Respondent. ' And as the tenant of this property, ' The Administrative Law Judge also found, however, that their termi- Respondent could have had the hecklers removed. nations violated Sec. 8(a)(3) of the Act. The complaint does not allege that their terminations constituted an 8(aX3) violation. Nor was it argued As of the week of the work stoppage, however, that their work stoppage was in support of a union. We therefore do not Respondent's responses to the employees' com- adopt the findings that the terminations of employees Johnson and Sudler plaints had failed to secure the area.2 violated Sec. 8(aX3) of the Act and we shall modify the Administrative Law Judge's recommended Order and notice accordingly. Further, the complaint did not allege that any discharges-other than The incident of April 20. 1979, that precipitated the work stoppage, the discharges of Johnson and Sudler-were violative of the Act. Ac- began in the parking lot area, although it continued when the employees cordingly, we need not pass on the legality of other terminations effectu- walked towards the bus stop on Philmont Avenue. ated by Respondent. Also, as found by the Administrative Law Judge, from the summer of ' As the Administrative Law Judge noted, Walter Bond and Deborah 1978 until 1979. Respondent's employees had their automobile tires Charles, two other employees who had leadership roles in the work stop- slashed and were subjected to racial slurs, heckling, and harassment per- page activities, were terminated even though they did not make racially formed by members of the white community in the parking lot area. derogatory remarks. 2 In response to previous complaints, Respondent had called the police ' See, e.g., Coors Container Company. 238 NLRB 1312, 1320 (1978); As- and complained to its landlord, The Singer Company, about the problem. sociated Grocers of New England, Inc., 227 NLRB 1200, 1206-07 (1977) Respondent had also hired a full-time security guard who was to check Chairman Van de Water, in agreeing to reinstate Johnson, would not rely the parking lot area during its night shift. on the precedent cited herein. 259 NLRB No. 50 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son and other employees were outside the building 651 (1977). See, generally, Isis Plumbing & Heating preparing for their meeting with Respondent's per- Co., 138 NLRB 716 (1962).6 sonnel manager, they saw Williams leave the build- (b) Preserve and, upon request, make available to ing in a hurry. At this meeting, Respondent stated the Board or its agents, for examination and copy- that it did not have any solutions for the abusive ing, all payroll records, social security payment re- white community outside the plant. cords, timecards, personnel records and reports, Against this background, it is understandable that and all other records necessary to analyze the Johnson's remarks, although regrettable and not to amount of backpay due under the terms of this be condoned, may have been caused by frustration Order. and the emotional confrontation with Respondent. (c) Post at Respondent's place of business in Because we do not consider her conduct so egre- Philadelphia, Pennsylvania, copies of the attached gious as to render her unfit for further service with notice marked "Appendix."7 Copies of said notice, Respondent, we shall order that Johnson be rein- on forms provided by the Regional Director for stated. Region 4, after being duly signed by Respondent's authorized representative, shall be posted by it im- ORDER mediately upon receipt thereof, and be maintained Pursuant to Section 10(c) of the National Labor by it for 60 consecutive days thereafter, in con- Relations Act, as amended, the National Labor Re- spicuous places, including all places where notices lations Board hereby orders that the Respondent, J. to employees are customarily posted. Reasonable W. Microelectronics Corporation, Philadelphia, steps shall be taken by Respondent to insure that Pennsylvania, its officers, agents, successors, and said notices are not altered, defaced, or covered by assigns, shall: any other material. 1. Cease and desist from: (d) Notify the Regional Director for Region 4, in (a) Discouraging employees from instigating and writing, within 20 days from the date of this Order, participating in a protected concerted work stop- what steps Respondent has taken to comply here- page or activities by terminating their employment with. or otherwise interfering with, restraining, or coerc- IT IS FURTHER ORDERED that the complaint be ing employees in regard to their tenure of employ- dismissed insofar as it alleges violations of the Act ment, or any term or condition of employment, be- not found herein. cause of their protected concerted activities. causeoftheirprotectedcocfrom participttiing in 6 In accordance with his dissent in Olympic Medical Corporation 250 (b) Discouraging employees from participating in NLRB 146 (1980), Member Jenkins would award interest on the backpay a protected concerted walkout or activities in pro- due based on the formula set forth therein. test of Respondent's discharge of fellow employees 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 by terminating their employment or otherwise in- Order of the National Labor Relations Board" shall read "Posted Pursu- terfering with, restraining, or coercing employees ant to a Judgment of the United States Court of Appeals Enforcing an in regard to their tenure of employment, or any Order of the National Labor Relations Board." term or condition of employment, because of their protected concerted activities. APPENDIX (c) In any like or related manner interfering NOTICE To EMPLOYEES with, restraining, or coercing employees in the ex- POSTED BY ORDER OF THE ercise of rights guaranteed them by Section 7 of NATIONAL LABOR RELATIONS BOARD the Act except to the extent that such rights may be affected by lawful agreements in accord with An Agency of the United States Government Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- After a hearing at which all sides had an opportu- sary to effectuate the policies of the Act: nity to present evidence and state their positions, (a) Offer to Kathy R. Sudler and Janice Johnson the National Labor Relations Board found that we immediate and full reinstatement to their former have violated the National Labor Relations Act, as positions or, if such positions no longer exist, to amended, and has ordered us to post this notice. substantially equivalent positions without prejudice WE WILL NOT restrain or coerce our em- to their seniority or other rights previously en- ployees in the exercise of their protected Sec- joyed, and make them whole for any loss of pay suffered by reason of the interference, restraint, and because they instigated and engaged in a con- coercion against them, with interest, in accordance certed work stoppage in protest of related certed work stoppage in protest of related with F W. Woolworth Company, 90 NLRB 289working conditions. (1950), and Florida Steel Corporation, 231 NLRB J. W. MICROELECTRONICS CORPORATION 329 WE WILL NOT discourage our employees In substance, the consolidated complaint alleges that from instigating, participating, or supporting a Respondent discharged the Charging Parties (employees) concerted protest work stoppage by terminat- because they engaged in concerted activities for purposes ing their employment, or otherwise interfering of collective bargaining or other mutual aid or protec- with, restraining, or coercing our employees in tOn. regard to their tenure of employment, or any On or about June 29, 1979, Respondent filed an answer denying that it has engaged in any unfair labor term or condition of employment, because of practices as alleged in the complaint. their protected concerted activities. The hearing in the above matter was held before me in WE WILL NOT discourage our employees Philadelphia, Pennsylvania, on December 18, 1979. Briefs from concertedly protesting the discharge of have been received from counsel for the General Coun- fellow employees by terminating their employ- sel and for Respondent, respectively, which have been ment, or otherwise interfering with, restrain- carefully considered. ing, or coercing our employees in regard to Upon the entire record in this case and from my obser- their tenure of employment or any term or vations of the witnesses, I hereby make the following: condition of employment because of their pro- FINDINGs OF FACT tected concerted activities. WE WILL NOT in any like or related manner I. JURISDICTION interfere with, restrain, or coerce our employ- ees in the exerie s and enjoyment of rights Respondent J. W. Microelectronics Corporation is, ees in dthem by Section 7 of the National rgt and has been at all times material herein, a Pennsylvania guaranteed them by Section 7 of the National corporation with an office and place of business in Phila- Labor Relations Act, except to the extent that delphia, Pennsylvania, where it is engaged in the manu- such rights might be affected by lawful agree- facture and nonretail sale of electronic component sys- ments in accord with Section 8(a)(3) of the tems and subsystem products. Act. In the course and conduct of its business operations, WE WILL offer Kathy R. Sudler and Janice Respondent has annually sold and shipped from its Phila- Johnson immediate and full reinstatement to delphia, Pennsylvania, facility products, goods, and ma- their former positions or, if such positions no terials valued in excess of $50,000 to points outside the longer exist, to substantially equivalent posi- Commonwealth of Pennsylvania. tions without prejudice to their seniority or The complaint alleges, the answer admits, and I find other rights previously enjoyed, and make that Respondent is an employer engaged in commerce them whole fr any loss pay suffered by within the meaning of Section 2(2), (6), and (7) of the them whole for any loss of pay suffered by Act reason of the interference, restraint, or coer- cion against them, with interest. 1I. THE ALLEGED UNFAIR LABOR PRACTICES All our employees are free to engage in, or refuse to engage in, protected concerted activities to protest a work-related problem, or to protest the Respondent J. W. Microelectronics Corporation is, discharge of fellow employees, or to engage in and has been at all times material herein, engaged in the other activities for mutual aid and protection, manufacture and nonretail sale of electronic component except to the extent that such rights may be affect- systems and subsystem products. ed by lawful agreements in accord with Section Respondent's Philadelphia facility is located near Fair- mont Park which is adjacent to Philmont Avenue. Also adjacent to its building is a parking lot which belongs to its landlord, the Singer Company. Some personnel of Re- J. W. MICROELECTRONICS CORPORA- spondent (particularly supervisory personnel) generally TION park on said parking lot during Respondent's second (night) shift. Also adjacent to the lot is a field (recrea- DECISION tion) which also belongs to the Singer Company. The park is several hundred feet away from Respondent's manufacturing facility. The Singer Company permits ELBERT D. GADSDEN, Administrative Law Judge: community groups to use the park for recreational pur- Upon individual charges of unfair labor practices filed on poses and the record shows that groups of community May 5, 1979, by Janice Johnson and Kathy R. Sudler, re- persons (white males) congregate in the park late at spectively, hereinafter called the Charging Parties, night drinking beer, smoking dope, and heckling and har- against J. W. Microelectronics Corporation, herein called assing the black employees of Respondent on the night Respondent, an order consolidating said cases and a con- shift as they leave the plant en route to their cars or to solidated complaint was issued by the Regional Director the public bus stop on Fairmont Avenue. for Region 4, through the General Counsel of the Na- Prior to April 20, 1979, Respondent had received sev- tional Labor Relations Board on June 18, 1979. eral complaints from its employees with respect to being 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD harassed and heckled by the unidentified white persons Over the weekend (April 21-22), Janice Johnson fur- from the community who congregated in the park during ther testified undisputedly that fellow employees Deb- late hours of the night. In response to such complaints orah Bass and others called her on the telephone. They Respondent had previously called the police on occasion agreed to request a meeting with Jesse Williams, presi- and had also complained to the Singer Company about dent of the Company, to discuss the incident which oc- the problem. Respondent had hired a full-time security curred on Friday night, April 20. Thereupon, Johnson guard 2 months prior to April 20, who was to check the called Williams on Monday morning (April 23) and told area of the parking lot during its second or nightwork him what had happened on Friday night as they left shift. Nevertheless, the record shows that the community work. She asked him if he could meet with herself and in which Respondent's business facility is located is a fellow employees on the night shift at 3 o'clock that substantially, if not totally, white community and its afternoon. Williams said, "No, he could not meet with presence there appears to have been against the wishes them at that time but that he would have Manager Steve of a large number of community residents. In any event, Aaronson to meet with them." the dispute presented for determination in this proceed- At 3 p.m. on Monday, April 23, Johnson, Kathy ing arose out of this sociological conglomerate of facts. Sudler, and other employees met outside the building in During the summer evenings of 1978-79, automobile preparation for a meeting with management. They ob- tires of Respondent's employees had been slashed and served President Williams come out of the building and said employees victims of racial slurs (niggers) accompa- leave in a hurry. nied by profanity when leaving work at 12 midnight. Plant Manager Steve Aaronson did not meet with The heckling and harassment were performed by mem- them but Personnel Manager Stan Muligan met with bers from the white community standing on the Singer them in the plant's cafeteria. Present with him were John Company's parking lot. Collier, night-shift foreman, and Vernol Jackson, produc- Finally, the record shows that the following named tion supervisor. After a heated discussion during which persons occupied the positions set opposite their respec- the employees informed management about the Friday tive names, and are now, and have been at all times ma- night incident, Supervisor John Collier said management terial herein, supervisors of Respondent within the mean- did not have a solution. Janice Johnson then said, in re- ing of Section 2(11) of the Act and agents of Respondent sponding to Collier, that if the Company did not have a within the meaning of Section 2(13) of the Act: solution, she suggested that the second-shift employees should not return to work until management found a so- Jesse Williams President lution. In the midst of all the yelling and shouting Wil- Vernol Jackson Production Supervisor liams ended the meeting. The second-shift employees left Stanley Mulligan Personnel Manager the cafeteria and met across the street in Fairmont Park Steven: (Steve) General Manager during where they discussed seeking outside help. Aaronson some period of time herein.' On the next day, Tuesday, April 24, Janice Johnson, B. Harassment by Some Members of the White her husband, and other employees on the night shift Community on April 20 and the Activities of the went to city hall and met with City Councilman Lucien Victimized Black Employees in Response Thereto Blackwell. Johnson continued to testify as follows: Respondent's plant operates a second or night shift Q. What did the second shift say to Mr. Black- consisting of about 30 employees. The night shift works well? from 3:30 p.m. to midnight and all except two of the em- A. We told him what had happened Friday and ployees are female. Just about all of said employees what kind of response we got from the President of except three or four are black. the company and that the police wasn't there. [H]e According to the undisputed testimony of Janice John- called the police commissioner in that district and son and Kathy Sudler, which I credit, they along with he said he wasn't aware of the problem that had fellow employees Walter Bond, Charlene Johnson, and happened on Friday and then he called Mr. Wil- others were leaving work at midnight on Friday, April liams, but they said he was out. So then he called 20, 1979.2 As they waited a few seconds for their ride on Tim Dougherty of the Philadelphia Tribune. the parking lot, and later proceeded to walk towards the A. That's a newspaper. A Philadelphia newspa- bus stop on Philmont Avenue, several (approximately 10) per. male members of the white community commenced fol- Q. Then you called up Mr. Dougherty and what lowing them and yelling, "Get those niggers." "Kill happened, if anything as a result of the phone call them m-f-ers." "Get them out of our neighborhood." to Mr. Dougherty? "We don't want them here"; and they proceeded to A. Mr. Dougherty came over and took a report throw bottles, rocks, and bricks at them (employees). In of what was being said. And, I did most of the talk- an effort to protect Johnson, Sudler, and other female ing. fellow employees, fellow employee Walker Bond and a male friend of his came towards them and became in- The report of Tim Dougherty described in General volved in a fight with the hecklers, in which scuffle Counsel's Exhibit 2 was published in the Friday, April Bond's male friend received a cut on the arm. 27, issue of the Tribune. After the meeting with Council- man Blackwell on Tuesday, Johnson and her fellow em- 2 All dates herein refer to 1979, unless specifically indicated otherwise. ployees returned to the plant and the day-shift employees J. W. MICROELECTRONICS CORPORATION 331 were sitting in the cafeteria. They wanted to know what Commission. During the meeting Kleit or Klink from the had happened at Blackwell's office at city hall. She pro- commission told employees that Respondent was going ceeded to tell the day-shift employees what had hap- to try to build a fence around the building and try to get pened on Friday night and also what happened at Black- the public bus rerouted. A representative from the police well's office. At that time Plant Manager Steve Aaron- department was also present. son and Supervisor Vernol Jackson walked into the cafe- Subsequently, Williams then told employees that they teria and announced there was no work for the night went over his head by going down to city hall. Janice shift on Tuesday, April 24, and that he was not sure Johnson then told him that she personally requested a about the rest of the week. He said some of them would meeting with him and he said, "No," and designated be put on the day shift. Johnson replied, "[T]hat would lower management personnel (Steve Aaronson), who did not solve the problem because you know how those not meet with them. Williams, nevertheless, asked em- Caucasians are, if they do it at night, they'll do it in the ployees to return to work but the employees advised that day time." they were tired from the long day's meetings, that some Johnson continued to testify as follows: of them had not come dressed to return to work, and that some had to make babysitting arrangements, etc. Su- Q. Did he say anything else to you? pervisor John Collier then asked the employees for a A. He said that-yes, he said that we would be show of hands for returning to work, but all the employ- paid for the time that the company had allowed ees decided to go home. Johnson said at that time, she us-for the days that the company had gave us off, noticed President Williams had a piece of paper in his we would be paid for it and he also said at this hand on which he had written and underlined the names point, he wasn't sure if we had to work the rest of of Janice Johnson and Walter Bond. the week. Thereafter, all of the employees on the night shift re- Q. Did he say anything about the Monday night ported to work the next day Thursday, April 26, and as meeting or the Monday afternoon meeting? Janice Johnson went to punch her timecard, she noticed A. Yes. He was not told about the meeting on that it was not there. Janice Johnson's testimony with re- Monday that Mr. Williams did not tell him about spect to all of the meetings was corroborated by fellow the meeting on Monday and that was why he employee Kathy Sudler, Johnson continued to testify as wasn't there. follows: Q. Okay, what, if anything was going to happen the next day? Q. When you arrived at work, what did you A. He also told us that if anyone was interested find? that Mr. Williams had arranged a meeting at 9:00 A. Well, when I got to work it was early. So, I with the Commissioner of Human Relations down went to punch my timecard in and to see that it was at city hall with Clarence Farmer. not in its place. So, I went to the office and I met Vernol Jackson in the hallway and he walked to the Johnson further testified that as they left the building office with me. And when I started to ask the secre- they met members of an organization called the House of tary what happened to my timecard, Stan Mulligan Umoja, which works with gangs to avoid violence. It is said, "Janice Johnson, we have terminated you. a security force and its members asked to meet with Here is your check and could we please have our them, so she and about 15 other fellow employees went badge." And at that time, I left the building. to the home of employee Walter Bond for a meeting. Q. Let me ask you this first. Did anybody know They decided to select six employees to speak for the you were fired or did you just leave work? night shift (Janice Johnson, Kathy Sudler, Deborah Bass, A. Well when I had left out the building Thurs- Carolyn Knight, Deborah Charles, and Walter Bond). day, there was an employee that worked on the day Then they selected two of the employees (Janice John- shift. I told her, would you go back in the building son and Walter Bond) to speak for the six designated em- and tell Kathy Sudler I had been fired so they ployees. The group agreed that if one employee was could tell the rest of the employees because we fired by Respondent all of them would walk out. were all supposed to walk out. She told Kathy On the next day, Wednesday, April 25, 20 plus em- Sudler and Kathy Sudler, Charlene Johnson, Annet- ployees from the night shift attended the meeting at the tie McDaniels, Ricki Exume, Linda Banks and Human Relations Commission at 9 a.m. Present were Brenda Merrell walked out the building. President Williams, Lucien Blackwell of the commission, Farmer, and members Umoja. Blackwell met privately Likewise, Kathy Sudler reported to work on Thurs- with President Williams and they came out and an- day, April 30, and punched in. After she was informed nounced that it would provide two plainclothesmen and by employees that Janice Johnson and Walter Bond were two uniformed police in marked cars. Janice Johnson fired, she proceeded to remind the employees of their then asked President Williams if the night-shift employ- agreement to walk out if any employee was fired. At this ees were going to be compensated, and he said they juncture, Supervisor John Collier appeared and Sudler would discuss that in a meeting at the plant at 3:30 p.m. continued her testimony as follows: She and other employees attended the 3:30 p.m. meeting (April 25) and present at that meeting were President A. I was in the back talking to the employees. Williams and Kleit or Klink from the Human Relations And he came up to me and said, "What are you 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing back here" and I told John Collier Janice Manager Mulligan further testified that employees Johnson had been fired. And we all said if anyone Kathy Sudler, Charlene Johnson, Nettie McDaniels, and had been fired, we all were going to stick together. Brenda Merrell were terminated for walking off the job. Q. What did he say about that? He said Respondent's employees' handbook provides, at A. He said, "Kathy, are you going to stay or are pages 38 and 39, for termination of employees for partici- you going to punch your card?" I said, "I'm going pating in or agitating a work stoppage, slowdown, or to punch my card." any other work curtailment. (G.C. Exh. 8.) Q. Did you? On cross-examination, Manager Mulligan testified that A. Yes. Respondent has about 190 employees and that at one Q. Did anybody go with you? time five employees used to be selected as employee of A. Yes. the month. Prior to February 1979, Kathy Sudler had Q. Who went with you? been selected such an employee. He further testified that A. Charlene Johnson, Ricki Exume, Brenda Mer- Respondent's personnel records do not show a reason for rell, Linda Banks and Annettie McDaniels. Kathy Sudler's departure on April 26, but its records Q. Did all these people punch out with you? marked Ricki Exume as AWOL, and that Exume, Linda A. Yes. Banks, and Nettie McDaniels walked out with Kathy Sudler on April 26. The reason for Sudler's discharge However, she says she does recall Collier telling the was insubordination or refusal to carry out work assign- employees there would be police protection at the plant ments. In doing so, the employees willfully counter- and that Respondent had contacted the Singer Company, manded orders of management. He acknowledged that its landlord, and was working to get security for the Brenda Merrell did not report for work on April 27 and parking lot, a fence, and changing the parking area. She that no comment is on her timecard. said Mulligan did not tell her why she was being termi- Respondent produced Juanita Pegues as a witness who nated. testified that the Friday night incident occurred about Kathy Sudler further testified, without dispute, that on two city blocks from the plant. Pegues further testified the next day, Friday, April 27, she joined Janice John- that on Friday, April 20, the hecklers jumped two fences son, Walter Bond, and Charlene Johnson in securing in order to get to the employees. They jumped the fence signs with which they picketed the plant, and also dis- of the Orkin Company and also the Singer Company and tributed handbills (G.C. Exh. 3). The handbills were a she was on Philmont Avenue going towards Busteton replica of the signs which bore the writings "Strike Avenue to catch the bus. At that point the hecklers start- JWM as unfair labor practice," "unfair management so ed throwing bottles and yelling racial slurs. honor our strike"; "We were fired for the concern we Manager Mulligan's testimonial account of the Tues- had for our fellow workers, etc. not only ourselves"; day meeting was as follows: "Strike." "Strike unfair labor practice, strike"; "Manage- ment unfair please help protect our rights, strike"; and A. I walked into the meeting along with Vernol "Strikeperson fired for protecting rights"; "You need Jackson. At that time, he was trying to explain your jobs, we need ours to" and "unfair labor practice"; what were the actions we had taken to secure their "Strike unfair management at J.W.M. Corp., strike." safety. There was general chaos among the employ- (And the last sign said, "strike J.W.M. Corp. unfair labor ees. There was a lot of shouting, trying to shut practice, strike.") people down as such. Steve Aaronson came in On the following Monday, April 30, Kathy Sudler said during the meeting and then tried to also do the she received a letter (G.C. Exh. 4) from Respondent ad- same thing, at that time, that particular time, I had a vising that she was terminated for refusing to work. She lieutenant from the local office, police lieutenant, stated that Charlene Johnson received a like letter of ter- from the local police department in my office. And mination on April 30, also. Steve was trying to explain to them the things that Stanley Mulligan, personnel manager for Respondent we were doing and had done to secure their safety. since February 1979, stated that he first learned about And he said, "You know if you like, you don't have the Friday night incident on Monday, April 23. He said to take my word for it, you can ask Stan. Stan tell he expressed concern about the safety of the employees them." I said, "A policeman is in my office now" and in essence corroborated the prior testimony of the and that's when Janice, who was standing on her contents of the several meetings in which management feet, jumped up. She jumped up in between and she and employees were present. He denied that employee shouted at the other employees as she was banging Janice Johnson was terminated because she agitated a her hand on the table. "Why should we listen to work stoppage but instead, stated that he received a these people. We know all caucasians are animals." letter from President Williams (G.C. Exh. 5) dated April With that, Steve just threw up his hands and he sort 26, asking him to investigate. He sent a letter of report of wandered off a little bit. The night shift left, the (G.C. Exh. 6) to President Williams. In response thereto, entire night shift. President Williams in his letter (G.C. Exh. 7) directed Mulligan to terminate of Janice Johnson. Thereupon he Mulligan denied Steve Aaronson said there would be terminated Johnson on April 26. Thereafter, Deborah no work because work was available. He said Aaronson, Charles called and resigned on April 26 before he had an who is white, left Respondent's employ a couple of days opportunity to terminate her as he intended to do. thereafter. J. W. MICROELECTRONICS CORPORATION 333 Mulligan further stated that although Williams ordered to an understanding of the issue is the right of the em- the discharge of Johnson, Bond, and Sudler, he did not ployees to complain, protest, and engage in other activi- know about their leadership among the employees. ties for the mutual aid and protection of fellow employ- Manager Mulligan further testified that on Friday, ees, even if the source of their grievance or concern is April 27, employees Rickie Exume and Linda Banks re- remote to the employer and the jobsite. turned to work and were hired by Respondent because As counsel for the General Counsel points out, the Su- Exume called in the previous day and said although she preme Court in Eastex, Inc. v. N.L.R.B., 437 U.S. 556, walked out the day before, she had done so because she 563 (1978), "held that the Section 7 right to engage in was genuinely concerned about her safety. She asked to concerted activities for the purpose of . . . mutual aid report to work pursuant to the directive of Supervisor and protection," was intended by Congress to protect John Collier. The other four workers, Nettie McDaniels, such activities in the broader purpose, as well as the nar- Kathy Sudler, Charlene Johnson, and Brenda Merrell, rower purpose of "self organization" and "collective bar- were sent letters of termination for refusal to work. gaining." The Board has given Section 7 a broad inter- Linda Banks was allowed to return to work, but he does pretation as enunciated by the Supreme Court in not know why she was permitted to return. N.L.R.B. v. Peter Callier Kohler Swiss Chocolates Co., Manager Mulligan testified that Janice Johnson made Inc., 130 F.2d 503 (2d. Cir. 1942), Bethlehem Shipbuilding racial remarks and she and Walter Bond were abusive to Corporation Ltd., et. al. v. N.L.R.B., 114 F.2d 930 (Ist management in their Tuesday meeting. Cir. 1940), and others. It is therefore clear that the con- ditions against which Janice Johnson and other employ- ItI. ANALYSIS AND CONCLUSIONS ees protested by engaging in a work stoppage was pro- A. The Work Stoppage tected activity under the Act and the above cited au- thorities. The issues presented for determination in this proceed- ing are as counsel for the General Counsel sets forth as B. Discharge of Janice Johnson follows: 1. Was the employees' work stoppage concerted activi- Although Respondent did not have direct control over ty protected under the National Labor Relations Act? the events which took place after the second-shift em- 2. Was Janice Johnson terminated because she instigat- ployees left the plant, a crucial question raised by the ed the work stoppage? evidence is whether Respondent's termination of Janice 3. Was Kathy Sudler terminated because she engaged Johnson was in any way motivated by her work stop- in a concerted work stoppage to protest the discharge of page activity. fellow workers Janice Johnson and Walter Bond? Respondent contends it terminated Janice Johnson for The work stoppage which occurred as a result of the making racially inflammatory statements about manage- instigation of Janice Johnson and other employees' pro- ment during the employees-management meeting on test of the racially motivated heckling and harassment April 23 when, among other things, Janice Johnson in they experienced from some male members of the white effect said in reference to a white supervisor: "Why community appears to be well established by the evi- should we listen to these people ... and their lies . . . dence. The threats of violence, heckling, and harassment We know all caucasians are animals." Since there were by which Janice Johnson and fellow black employees other negative remarks made by other employees during were victimized occurred after working hours and after the meeting, President Williams asked Personnel Man- they left the immediate premises of Respondent. ager Stanley Mulligan to investigate and give him a Respondent had no managerial control over the heck- report on the conduct of employees during the meeting. lers and was not responsible for their conduct. The Mulligan's report gave information upon which Mulligan record indicates that initially Respondent intimated that said President Williams terminated Janice Johnson, the problem was one for which it was not responsible Walter Bond, and Deborah Charles. The latter three em- and one which was above and beyond its control. This is ployees were charged with telling the employees man- so, because President Williams appeared reluctant to agement was not doing anything to help them with their meet with the employees when he was first requested to problem. Johnson, Bond, and Charles were also charged do so by Janice Johnson. Secondly, when management with making inflammatory statements at the meeting, but officials were first apprised of the problems on Friday, Bond and Charles were not charged with making any ra- April 20, their response was "we have no solutions." cially derogatory remarks. Nevertheless, Bond and Notwithstanding, Respondent thereafter took several ini- Charles were also terminated. tiatives to protect the employees. It spoke to its landlord, Hence, it is readily apparent that Walter Bond and Singer, which also owned the subject parking lot and Deborah Charles, who did not make racial remarks, park on which the hecklers would come to carry out were terminated because of their advocacy for and par- their harassment of the employees. Respondent also ticipation in the work stoppage activity, which activity is called the police on several occasions, contacted the protected by the Act. Since Janice Johnson was the first public bus company in an effort to have the bus rerouted one discharged along with Bond and Charles, it becomes to stop in front of its plant, considered building a fence obvious that she was part of a lot (Bond, Charles, and around the lot, and secured a meeting with the Human Johnson) which Respondent wanted to elimfnate from its Relations Commission. While all these exemplary things employ. Thus, Respondent's discriminatory motive for were done by Respondent, it should be noted that a key Johnson's discharge is thereby revealed. Corresponding- 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, Respondent's contention that it discharged Janice Personnel Manager Stanley Mulligan gave the Compa- Johnson for her racial remarks is exposed, partially as a ny's account of Sudler's discharge since Collier did not supplementary reason, and obviously as a pretext to con- testify herein. Manager Mulligan contended that Re- ceal its other reason. Nevertheless, since Johnson's dis- spondent (presumably Collier or other managerial per- charge was in part motivated by her protected leadership sonnel) did not know why Kathy Sudler and other em- role in the work stoppage activities, Respondent's dis- ployees walked off the job on April 26. However, the charge of her was discriminatory and violative of Sec- evidence contradicts this contention by the credited testi- tion 8(a)(3) and (1) of the Act. mony of Sudler, who advised Supervisor Collier why However, this does not go to say that Janice Johnson's she and other employees were walking off the job. racially, derogatory, and inflammatory rcmarks did not Moreover, Sudler and other employees picketed the also constitute a valid reason for her termination. 418 plant commencing at noon on the following day, April Geary, Inc. d/b/a Stage Deli and Theater Lounge, 238 27. They wore signs which protested the termination of NLRB 276, 279, fn. 10 (1978); Diocese of Fort Wayne- fellow employees for engaging in the protest against South Bend Inc., 230 NLRB 267; and Charles Edwin racial harassment. I was not persuaded that none of Re- Laffey, d/b/a Consolidated Services, 223 NLRB 845 spondent's managerial staff or employees in favor of (1976). However, the above finding does not condone management did not observe Sudler and other employees the irresponsible and inflammatory racial remarks uttered picketing the plant on April 27. Hence, Respondent's by Janice Johnson during the Tuesday employees-man- denial of knowledge of the whereabouts of Sudler on agement meeting. As the record shows one white super- April 27 is not convincing, in view of the fact that visory employee left the employment of Respondent 2 Sudler advised Supervisor Collier that she and other em- days later. The record does not specifically show why ployees were walking off the job in protest of the dis- said employee left the employment of Respondent and charge of fellow employees Johnson and Bond. The Respondent did not offer any evidence in this regard. picket signs clearly indicated that the employees were Nevertheless, such language by Johnson was certainly protesting the terminations of their fellow workers. excessive and was deemed damaging to employee-man- Hence when Collier decided to terminate Sudler and the agement relations, as well as to race relations among em- other employees on April 27, he did so with knowledge ployees. It would be interesting to know what demands of their purpose as stated to him by Sudler on April 26, Janice Johnson would have exacted of management had as well as by their participation in the picket line on management publicly made racially derogatory remarks April 27. Therefore, Respondent's contention that it dis- in reference to black persons. Thus, it is clear that Re- charged Sudler and other employees for failure to report spondent also had cause to discharge Johnson even to work on April 27 because they left work early on though such cause was coupled with an unlawful motive April 26 is pretextual to conceal its real reason for termi- (Johnson's protected concerted activities). Consequently, nating them for protesting the discharge of fellow em- although I will recommend that Respondent make John- ployees Johnson and Bond. son whole for the discriminatory discharge I will not It is well established law that Section 8(a)(1) of the recommend that she be reinstated by Respondent. Act protects the right of employees to protest the dis- charge of other employees, even if such other employees C. Respondent's Termination of Kathy Sudler were discharged for lawful reasons. Auto-Truck Federal Credit Union, 232 NLRB 1024 (1977), Associated Cleaning On Thursday, April 26, Kathy Sudler learned from Consultants & Services, Inc., 226 NLRB 1066 (1976), and employees in the plant that Janice Johnson and Walter Roemer Industries, Inc., 205 NLRB 63 (1973). Bond had been fired. In keeping with the employees' Based on the foregoing conclusions, findings, and legal agreement to walk out if Respondent fired any of the authority, I conclude and find that Respondent's termina- protesting employees, Sudler proceeded to inform em- tion of Kathy Sudler and other employees who protested ployees on the second shift that Respondent had fired the termination of Johnson and Bond with her violated Janice Johnson and Walter Bond and reminded them of Section 8(a)(1) of the Act. their agreement to walk out. As she was in the process of doing this, Production Supervisor John Collier walked IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES up and asked Sudler what was she doing back there. UPON COMMERCE Sudler told him Janice Johnson had been fired and that all the employees were going to stick together. Collier in The activities of Respondent set forth in section effect told Sudler she should leave work if she was going above, occurring in close connection with its operations to continue her protest. He also asked her if she was as described in section I, above, have a close, intimate, going to stay or punch out. Sudler said she was going to and substantial relationship to trade, traffic, and com- punch out and she did in fact do so, along with fellow merce among the several States and tend to lead to labor employees Charlene Johnson, Annettie McDaniels, disputes burdening and obstructing commerce and the Ricky Exume, Linda Banks, and Brenda Merrell. Super- free flow of commerce. visor Collier did not testify in this proceeding and I credit Sudler's testimony that she informed Collier that she and other employees were sticking together (walking Having found that Respondent has engaged in unfair out) in protest of Respondent's termination of Johnson labor practices warranting a remedial order, I shall rec- and Bond. ommend that it cease and desist therefrom and that it J. W. MICROELECTRONICS CORPORATION 335 take certain affirmative action to effectuate the policies CONCLUSIONS OF LAW of the Act. It having been found that Respondent interfered with, 1. J. W. Microelectronics Corporation is an employer restrained, and coerced its employees in the exercise of engaged in commerce within the meaning of Section 2(6) their Section 7 protected rights in violation of Section and (7) of the Act. 8(a)(1) and (3) of the Act, by discriminatorily terminating 2. The second-shift employees work stoppage protest employees Janice Johnson and Walter Bond for engaging to management about racial and physical harassment by in protected concerted protest activities on April 23 white male hecklers from the community as the employ- through 26; and that it discriminatorily terminated the ees leave the plant en route home, constituted protected employment of Kathy Sudler, because she along with concerted activity under the Act. fellow employees Charlene Johnson, Annettie McDan- 3. By discriminatorily terminating Janice Johnson's iels, Brenda Merrell, Ricky Exume, and Linda Banks employment for engaging in protected concerted activity walked off the job on April 26, 1979, to protest the ter- in instigating the work stoppage in protest of the em- minations of Janice Johnson and Walter Bond, the rec- ployees' problem of racial harassment, Respondent vio- ommended Order will provide that Respondent cease lated Section 8(a)(l) and (3) of the Act. and desist from engaging in such unlawful conduct. 4. By discriminatorily terminating the employment of Because of the character of the unfair labor practices Kathy Sudler because she engaged in a protected con- herein found, the recommended Order will provide that certed work stoppage to protest Respondent's discharge Respondent cease and desist from in any other manner of fellow employees Janice Johnson and Walter Bond, whatsoever interfering with, restraining, or coercing em- Respondent violated Section 8(aX1) and (3) of the Act ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. N.L.R.B. v. Enrwistle Mfg. Co., 120 5. The aforesaid unfair labor practices affect commerce F.2d 532, 536 (4th Cir. 1941). within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact and upon [Recommended Order omitted from publication.] the entire record of this case, I make the following: