Waco, Inc.

746 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD Waco, Inc. and United Steelworkers - of America, AFL-CIO-CLC and David L. White. Cases 5- CA-12951 and 5-CA-3122 -- 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 21 December 1981 and 20 December 1982 Administrative Law Judge William A. Gershuny issued the attached decision and supplemental deci- sion, respectively. The General Counsel filed ex- ceptions and supporting briefs to both the decision and the supplemental decision, and the Respondent filed briefs in opposition to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. • The Board has considered the decision and sup- plemental decision and the record in light of the exceptions and briefs and has decided to affirm - the judge's rulings, findings,' and conclusions and to adopt the recommended Order. The judge dismissed the General Counsel's com- plaint in its entirety. While we affirm certain of those dismissals, we reverse others and, in one in- stance, we affirm the dismissal on grounds different from those set out by the judge. 1.- The judge found, and we agree, that the Re- spondent lawfully discharged employee Dàvid White when he returned from an extended absence and failed to provide the doctor's excuse required by the Respondent's rules. We also agree that the Respondent did not violate the Act when it earlier photographed White wearing a large cardboard prounion sign on his person while working at -his machine, since the dangerous nature of White's conduct rendered it unprotected and the Respond- ent was entitled to document the event. Additional- ly, we agree, based on the judge's credibility reso- lutions, that the Respondent did not promulgate an unlawful no-solicitation/no-distribution rule, or -threaten employees with discharge for participating in union activities. 2. The judge further found that the Respondent did not violate Section 8(a)(1) of the Act when it discharged nine employees who refused to begin 1 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings work on the morning of 9 January 19813 For the reasons set forth below, we agree that this conduct of the Respondent was lawful. As more fully set forth by the judge, the nine employees in question arrived at work shortly before 7 a.m. on 9 January and found that certain other employees (not involved in this proceeding) had either been discharged or had quit under pur- portedly unjust circumstances. The nine employees gathered in the lunchroom and demanded that Faris, the manager of the fabrication department in which they worked, meet there with them as a group. The employees never stated a specific griev- ance or formulated any demands other than to have Faris meet with them in the lunchroom. As the judge found, although the Respondent was aware that the employees' concerns were probably work-related, Fans refused their demand for a mass meeting in the lunchroom. Fans came to the lunchroom about 7:45 a.m. and told the em- ployees that he would meet with any of them indi- vidually in his office but would not participate in a mass meeting. None of the protesters agreed to this agreement. Instead, they remained in the lunch- room until they were presented with their pay- checks and were discharged between 10:30 and 11 a.m. when they refused to work or leave the prem- ises. In dismissing the allegation that the discharge of these employees violated the Act, we note that, al- though employees who are unrepresented and are working without an established grievance proce- dure have a right , to engage in spontaneous con- certed protests concerning -their working condi- tions, the precise contours within which such activ- ity is protected cannot be defined by hard-and-fast rules. Instead, each case requires that many rele- vant factors be weighed. In the instant Case, the employees remained in the lunchroom for a period of at least 3-1/2 hours, most of which came after Faris had told them that he would not meet with them as a group and that they must choose either to get up and go back to work, in which case he would meet with them individually, or to punch out and leave the premises. In our view, by the time these employees were discharged, late in the morning, they had overstepped the boundary of a protected, spontaneous work stoppage, and were occupying the facility in a manner which was un- protected. The Respondent's decision to terminate them was not made precipitously, and the employ- ees had had ample time to consider the Respond- ent's demand that they choose between working and carrying on their protest, off the Respondent's 2 All dates herein are in 1981 unless otherwise noted 273 NLRB No. 101 WACO, INC 747 premises. The employees gave no -indication that they intended to accept either alternative, and, in fact, the employees' testimony indicates' that they had no plan to give up their occupation of the Re- spondent's lunchroom. Neither did they communi- cate to the' Respondent the particulars of their grievances so as to facilitate a discussion or-'possi- ble resolution of their concerns. In these circum- stances, we find that the discharge_ 'of these 'nine employees was not unlawful. 3 - - 3. Five days' after the lunchroom protest,- picket- ing at or near the entrance to the Respondent's premises commenced. Between' 14 and 16 January, picketers carried signs listing a litany of grievances against the Respondent. The :picketers consisted of five of the lunchroom protesters and two former einployeeS previously terminated for 'reasons un- known. On the second day of the picketing, Fabri- cation Department Manager Fans took an un- known number of photographs , of .the picketers. The Respondent's asserted justificatiOn for the pho- tographing is that it wanted "to find out what was on the signs and take pictures of them." The Respondent does not contend that these pickets either engaged in, or gave the appearance that they might engage in, any form of picket line misconduct, or that their presence interfered with ingress . or egress at the plant entrance or that they caused any traffic disturbance. Yet, besides photo- graphing, the Respondent had police observe the picketing. The pickets were never asked to move, although Fans asked them if they. were represent- ed, and, if so, by whom. The complaint alleges that the Respondent vio- lated Section 8(a)(1) of the Act when Fans photo- graphed this picketing activity. The judge dis- missed the allegation on the grounds that the Re- spondent's conduct was "noncoercive, nonthreaten- ing, and unaccompanied by other unlawful activi- ty" on the Respondent's part. The judge offered no explanations why this conduct was "noncoercive 2 Cases relied on by the General Counsel are distinguishable In GF Business Equipment, 215 NLRB 872,(i974), enfd 529 F 2d 201 (8th Cir 1975), the employees, during their' first work stoppage, made known to the company, prior to stopping work, the specific complaints which gave nse to their protest While the company gave the employees the choice of returning to work or punching out, they were also told,that, if they punched out, they might be subject to discipline We note the' work stop- page there lasted no more than 1 hour During the second work stop- page, the employees were again told to work or punch out but, if they punched out, they were again told they might be subject to discipline Also, the second stoppage lasted only 15 minutes before a number of em- ployees were discharged In Pepsi-Cola Bottling Co of Miami,' 186 _NLRB 477 (1970), enfd 449 F 2d 81,4 (5th Or 1971), cert denied 407 US 910 (1972), there was no showing, as here, that the employer agreed to meet with the employees, and the employees were discharged only shortly after their work stoppage began Member Hunter does not agree with the rationale of these cases and accordingly finds it unnecessary to distinguish them here and nonthreatening." We disagree with his dismis- 'sal of this allegation. It has long been held that "[i]n the' absence of proper justification, the photographing' of pickets violates the Act because it has a tendency to in- - timidate." 4 Photographing lawful, peaceful picket- ing tends to implant fear of future reprisals.5 In the particular circumstances of this case, we are convinced that the Respondent's conduCt rea- sonably- tended to restrain the employees from en- gaging in what was undisputedly protected con- certed activity. The Respondent had no reasonable -basis for anticipating picket line 'rniseonduct, since, both On the day of the lunchroom' protesters' dis- charge and at all times during this picketing, the employees were orderly and peaceful. Such photo- graphing by their former supervisor reasonably ' tended to coerce and restrain the picketers" by "cre- ating a fear among them that the record of their concerted activities might be used for some future reprisals," e.g., a refusal to consider them for rehire or a possible "blackball" of them with other employers. Unlike the situation in U.S. Stee1, 7 the picketers did not seek their own media coverage nor did the Respondent have a history of photo- graphing picketing unaccompanied by employee re- prisals. Photographing the picketing employees could reasonably tend to coerce them not to take further protected concerted action to voice their grievances concerning events at the Respondent's •plant. Accordingly, we find that, by photographing ' the picketers, 8 the Respondent violated Section 8(a)(1) of the Act. 4. The complaint also alleges that the Respond- ent ' violated Section 8(a)(1) by admonishing em- ployees not to discuss their wages among them- ' selves. The . judge noted that it was undisputed that Fans and other supervisors engaged in such con- duct, but he found, on the basis of his credibility -resolutions, 'that the , Respondent had made no threats to discharge or discipline employees for Kallmann v NLRB, 640 F 2d 1094 '(9th Cir 1981) See also Flambeau . Plastics Corp, 167 NLRB 735 (1967), enfd 401 F 2d 128 (7th Cir 1968) 5 See NLRB v Colonial Haven Nursing Home, 542 F 2d 691 (7th Cm 1976), Captain Nemo's, 258 NLRB 537 (1981), Cutting, Inc , 255 NLRB 534 (1981) • , 6 NLRB v Colonial Haven Nursing Home, supra 7 US Steel Corp v NLRB, 682 F 2d 98 (6th Cir 1982) 8 The fact that' these employees were no longer employed by the Re- spondent does not stnp them of their Sec 7 rights It is well settled that employees are not protected merely for activity within the scope of their - employment relationship, but may engage in other activities for mutual - aid or protection Eastex, Inc v NLRB, 437 U S _556 (1978) The Act provides in Sec 2(3) that "The term 'employee' shall Include any em- ployee, and shall Include any individual whose work has ceased as a con- sequence of, or in connection with, any current labor dispute Thus, we have held that a discharged employee remains a statutory em- ployee entitled to the full protection of the Act Little Rock Crate & Basket Co, 227 NLRB 1406 (1977), and cases cited therein 748 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD violating this instruction. The judge particularly noted that no employee testified that this instruc- tion inhibited him from engaging in protected ac- tivity. The judge concluded, without discussion of precedent, that the instruction was lawful. We dis- agree. In some circumstances, it may be lawful for an employer to bar its employees from discussing cer- tain information concerning wages. For example, in International Business Machines Corp. (IBM), 265 NLRB 638 (1982), we held that, although employ- ee rights were adversely affected by the company's policy prohibiting . employees from distributing wage data, which it had compiled and classified as confidential, that policy was not unlawful. , The issue was whether the Company had substantial and legitimate business interests which supported its policy and which outweighed the employees' in- terests in making use of the data compiled by the company. In that case, we noted that employees were not precluded by the company from discuss- ing their own wages with each other, but only from having access to or distributing the information which the company had compiled for its own inter- . nal use. We concluded that the company's business justification outweighed the employees' interest in having free access to the disputed wage data. In the instant case, however, unlike IBM, supra, the Respondent forbade its employees . to discuss their own wages among themselves. Further, it did so without establishing a- substantial and legitimate business justification for its policy; indeed, the Re- spondent offers no argument whatsoever that justi- . fication exists, relying instead, as did the judge, on the lack of showing that any employee felt inhibit- ed by the Respondent's rule. In assessing the lawfulness of the Respondent's rule, we are not concerned with the subjective impact of the rule on particular employees. 9 In- stead, we must determine whether the rule reason- ably tended to coerce employees in the exercise -of their Section 7 rights, and, if so, whether the em- ployees' Section 7 rights are outweighed by any le- gitimate and substantial business justification for the rule.'° There can be little question that the Respond- ent's rule prohibiting employees from discussing their wages constitutes a clear restraint on employ- ees' - Section 7 right to engage in concerted activi- ties for mutual aid and protection concerning an undeniably significant term of employment. il Since -J 9 Daniel Construction Go, 264 NLRB 569 (1982) 1 ° IBM, supra 11 Jeannette Corp. 217 NLRB 653 (1975), enfd , 532 F 2d 916 (3d Cir 1976), Mona Industries, 245 NLRB 1258 (1979) the Respondent has failed to establish any business justification for this restraint, it follows that its rule is unlawful. 5. In his supplemental decision, the judge found that the Respondent had not violated Section 8(a)(1) of the Act when Faris required that em- ployee .White remove a union sign he had posted on the wall outside the plant lunchroom. The sign invited employees to talk with White if they were interested in forming a union. The judge found that the Respondent had permitted other ,employee no- tices to be posted on the wall,. and that the Re- spondent's treatment of White's , posting was dispar- , ate. The judge further found, however, that, under all the circumstances at this faCility, "including the fact that '700 of its, 750 employees are organized"; the fact that the incident' was isolated and not com- municated to or known by other employees; and that the Respondent's action was free of union animus, the Respondent's conduct constitutes a de minimis violation and need not be remedied by -the posting of a Board notice. Again, we disagree. Initially, we 'note that, contrary ,to the judge, the Respondent employs only about 50 employees at this facility and that they are not organized: The Respondent' does have approximately 700 employ- ees Who are represented-by a union, but those em- ployees 'Work at other jobsites, not at the fabrica- tion plant involved here. As the Respondent itself states in its brief, "Wacb's employees who work at the Newport News facility are not members of any bargaining unit." - Secondly, the legal standard applied by the judge in dismissing this allegation was eribneous. Union- animus is an element in 8(a)(3) case, but generally is -not an element in 8(a)(1) cases. "It is too well, settled to brook dispute -that the test of in- terference, restraint, and- coercion under Section 8(a)(1) of the Act does not depend on an employ- er's motive nor on the successful effect of the coer- cion.' -Rather, the illegality of an employer's con- duct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act." 12 Accordingly, the absence of union animus on the part of the Respondent, assuming this to be shown by the record, would be irrelevant to the issue of whether the Respondent violated Section 8(a)(1), and it was error for- the judge to. rely on this factor. Finally, we do not agree with the judge's finding that the incident was so isolated as to vitiate the need for a Board notice. As noted above, the plant employed far fewer employees than the judge " Daniel Construction Go, supra WACO, INC 749 found. Further, the sign which White was told to remove invited employees to begin discussions con- cerning the possibility of forming a union. Its re- moval had the effect of interfering not only with White, but also.with other employees in the depart- ment whom White was lawfully attempting to reach with his message. Moreover, we have found that the Respondent violated Section 8(a)(1) in at least two other respects, and, in all these circum- stances, we reject the judge's characterization of this misconduct as "isolated." 13 Accordingly, we shall order that this unfair labor practice be reme- died by the posting of an appropriate notice.14 THE REMEDY Having found that the Respondent unlawfully interfered with, restrained, and coerced its employ- ees in the exercise of their Section 7 rights, we shall order it to cease and desist therefrom, and to post an appropriate notice. CONCLUSIONS OF LAW L Waco, Inc. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO- CLC is a labor organization within the meaning of Section. 2(5) of the Act. 3. By photographing employees as they lawfully and peacefully picketed outside the Respondent's Newport News, Virginia facility; by requiring the removal of an employee's poster relating to the for- mation of a union from the wall outside the lunch- room at the facility, contrary to its past practice of permitting employees to post material at the loca- tion; and by telling employees that they were not to discuss their wages with each other, the Re- spondent has interfered with, restrained, and co- erced employees in the exercise of their Section 7 rights and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 13 In his initial decision the judge found this issue was also untimely raised We disagree While the General Counsel did not raise the Issue as a separate violation until his posthearing brief, it was clearly raised as an element of White's alleged unlawful discharge, it was fully litigated, and it sufficiently relates to other timely raised allegations under consider- ation It could thus be considered by the judge 14 In his discussion of this Issue, as elsewhere, the judge improperly relied on courts of appeals decisions' instead of initially considering rele- vant Board decisions on the issues presented And, on one issue, the judge relied on the dissent ,of a single Board member rather than on the Board majority in that decision We emphasize that It is a judge's duty to apply established Board precedent which the Supreme Court has not re- versed Iowa Beef Packers, 144 NLRB 615, 616 (1963) It is for the Board, not the judge, to determine whether that precedent should be varied ORDER The National Labor Relations Board orders that the Respondent, Waco, Inc., Newport News, Vir- ginia, its officers, agents, successors, 'and assigns, shall 1. Cease and desist from (a) Engaging in surveillance by photographing employees as they lawfully_ and peacefully picket outside the Respondent's facility. (b) Telling employees not to discuss their wages with one another. (c) Requiring employees to remove posters relat- ing to the formation of a union or other protected concerted activity from areas in which employees are permitted to post other types of notices. (d) In any like or related manner interfereing with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post , at its facility in Newport News, Virgin- ia, copies Of the attached notice marked "Appen- dix." 15 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representa- tive, shall be posted ,by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 'where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the' Regional Director in writing Within 20 days from the date of this Order what steps the' Respondent has taken to comply. MEMBER DENNIS, concurring in result. I agree that the Respondent lawfully discharged the nine employees who engaged in the lunchroom sit-in, but I do not rely on my colleagues' rationale. The judge found that the employees in question gathered in the plant lunchroom instead of report- ing to their work stations and demanded that Fab- rication Department Manager Faris meet with them. Faris declined to meet with the group and, most significantly, gave the employees the option of returning to work or clocking out and leaving the premises. The employees chose neither alterna- tive and continued to occupy the lunchroom until they were discharged. 15 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although this case lacks the violence that marked the . sitdown strike in NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), the princi- ple the Supreme Court established in Fansteel is equally applicable here: the Act does not protect 'employee refusals to yield possession of an employ- er's property. Once the employees were informed that they must work_ or leave the premises, they could no longer continue their lunchroom sit-in with immunity from employer discipline. On this basis, I concur in the dismissal of the complaint al- legation that the nine employees were unlawfully discharged. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the. National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT 'engage in surveillance of employ- ees by photographing them as they lawfully and peacefully picket outside our plant. WE WILL NOT tell employees that they cannot discuss their wages with each other. WE WILL NOT require employees to reniove signs or posters concerning the formation of a union from he wall .outside the lunchroom or any other area where employees are permitted to post notices. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the-Act. WACO, INC. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge. A hearing was held on October 19-20, 1981, in Newport _News, Virginia, on 'complaints issued. March ,23 and April 27, 1981, alleging violations of Section 8(a)(1) and (3) of the Act. At issue principally is whether Respondent unlawfully discharged nine employees on January 9 and one em- ployee on March 17, 1981. On the entire record, including my observation of the witness' demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS,OF LAW I. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent, engaged in the- manufacture of insula- tion materials with annual shipments of goods interstate in excess of $50,000, is an employer engaged in com- merce within the meaning of the Act.' II. LABOR ORGANIZATION INVOLVED The United Steelworkers of America, which through its Local Union 15051 represents 700 of Respondent's employees some of whom are assigned to Respondent's Newport News facility, but which represents none of the employees involved in these cases, is a labor organization within the meaning of Section 2(5) of the Act. III UNFAIR LABOR PRACTICES A The January 9, 1981 Discharge of Nine Employees Respondent is engaged in the manufacture and installa- tion of insulation materials. Its 700 employees, some of whom are assigned to Respondent's Newport News facil- ity, are represented by the United Steelworkers It em- ploys approximately 50 unrepresented production and clerical ,employees at its Newport News facility. In- volved in this case are nine of the 12-14 employees of the fabrication department at that plant. At the time, the plant was engaged in the production of material for the 'Government under a contract which had a penalty clause for late delivery Interruption Of fabrication would affect the operation of the rest of the plant. On January 9, 1981, between 10:30 and 11 a.m., nine fabrication department employees were discharged for refusing to work or leave the plant. The events preced- ing the discharges are brief, occurring between 7 and 11 a.m , and essentially are not in dispute. When several of the employees reported to work that morning for the 7 a.m shift, they became aware that one coemployee had been discharged for failure to have a medical slip and two others apparently had quit. There is no allegation or contention in this case that these termi- nations were violative of the Act. More than nine fabri- cation department employees gathered in the plant lunchroom to discuss their dissatisfaction with manage- ment Some of the employees were called away from their work stations by others who went directly to the lunchroom after clocking in. The credible evidence is that all fabrication department employees were to report to their last work station at the beginning of each shift to await any new assignment by their supervisor. They were not to await the assignment in the lunchroom, as testified to b9 one or two of the employees. The employees told Dimowski, their immediate super- visor, they wanted to meet -with Fans, manager of the fabrication department. At 7 . 10 a.m., Fans was informed at home of the sit-in, came immediately to the -plant, looked into the lunchroom, and, went to his office. About 7:45 a.m., when Fans returned to the lunchroom the em- ployees told him they wanted to meet with him in "our WACO, INC 751 office," the lunchroom. He declined to meet with the group, but, according to his testimony which I credit, of- fered to meet with them in his office one-on-one or, with one or more spokespersons "to discuss wifitever prob- lems that they might have" (Tr. 261), adding that "they had a choice of to get up and go to work or punch out and go home, leave the premises. And, if they went back to work, that my door was "open and I would be happy to meet with them one-on-one" .(Tr. 260, 299-300). I find, based on my observation of the witnesses, the manner in which their testimony was given, and their words used and my reading of the transcript, that at all times the employees were aware they were being given the option of returning to work with an opportunity then to meet with Fans or clocking out and leaving the plant. Faris then returned to his office and shortly thereafter one or two of the employees approached him again with a request for a meeting with the group in the lunchroom, but were told that his earlier offer stood. Nine of the employees continued to occupy the lunch- room, their intent was best described by one of their spokespersons, Peggy King. "We were just going to sit there and thought Mr. Faris would change his mind and come to listen to what we had to say" (Tr. 349). She tes- tified that, even after the employees had been sitting there for several hours and Faris continued in his refusal to meet with them en masse in the lunchroom, they gave no thought to what they would do next. At approximately 10:30 a.m., when Faris and General Sales Manager Robbins found the employees still occu- pying the lunchroom, the employees were discharged, were given their regular payroll checks which had been received from company headquarters in Richmond for distribution at the plant later that day, and were told to leave the premises. They did so peacefully. After requesting and obtaining the name and address of the Company president, they drove to Richmond and met as a group with President Walker at approximately 3 p.m. He inquired whether they' would return to work with the "right attitude" and, when he received an af- firmative answer, called the Newport News plant only to be informed that Fans, who had full authority, had indeed discharged the employees and already had re- placed them by transferring employees from other shifts. Walker immediately arranged for checks to be issued to the nine employees for the current payroll period and they left peacefully The lunchroom is a small room set aside in the plant for all salaried and hourly employees of the clerical, fab-.- rication, and warehouse departments. It contains food vending machines, a'large table, and 12 chairs. Employ- ees regularly use the room during rest and lunch breaks. While the fabrication 'department employees occupied the lunchroom on the morning of January 9, no other employees attempted to use it. I credit the testimony of Fans and Robbins that em- ployees in the lunchroom were sitting on the table, were laughing, joking, and talking at the same time,' appeared to be disorganized and without a spokesperson, and never specifically identified their problem because of their inability to reach agreement with Fans on ground rules for a meeting. Admittedly, however, Faris and Robbins were aware that their concern related generally to their employment. Finally, there is no evidence that the employees other- wise interfered with the Employer's ability to obtain re- placements or to transfer other employees to operate the fabrication department machinery. Nor is there evidence of the existence of a written grievance procedure for fab- rication ,department employees. No work areas other than the lunchroom were occupied and no other plant employees were asked or encouraged to join in the sit-in. There is, of course, no question whatever that the fab- rication department employees on the morning of Janu- ary 9 were engaged in concerted activities within the meaning of Section 7 of the Act and that Respondent knew that the employees had a work-related grievance or grievances. The real issue is whether those activities were protected. It is, of course, elemental labor law that a "concerted work stoppage and walkout by unrepresented employees for their mutual aid and protection is protected by Sec- tion 7 of the Act" and that "the employees had a right to protest the discharge of their fellow employee by appro- priate means, including a strike." United M & M v. NLRB, 554 F.2d 1276 (4th Cir. 1977). Similarly, it is fun- damental Board law, "dissatisfied employees cannot strike and maintain their pay status at the same time." Morris, The Developing Labor Law (1971). , Cone Mills Corp. v. NLRB, 413 F.2d 453 (4th Cir. 1969), is wholly dispositive of the issue here. In Cone, as here, certain employees were protesting an unrelated dis- charge of a fellow employee. In Cone, as here, the em- ployees declined to use the established procedure for communicating their grievances. That the grievance pro- cedure in Cone preexisted the work stoppage, while the one here was announced at the onset of the work stop- page, has no relevance. In Cone, as .here, the employees gave no indication whatever when their work stoppage would terminate or when they would vacate the plant. Indeed, the employees here had no plans but to continue with their sit-in. In this respect, the employees main- tained a defiant, and rebellious attitude, seeking to estab- lish for themselves the terms and conditions of employ- ment. And, finally, in Cone, as here, .a number of the pro- testing employees returned to their machines when re- quested to do so and were not discharged or otherwise disciplined for participating in the protest. On the particular facts of this case, the views of Chair- man Miller in dissent in Pepsi-Cola Bottling Co., 186 NLRB 477 (1970), are especially applicable: "[U]nder our Act, an employer is [not] precluded from ordering employees to leave the plant if they wish to protest rather than to work and from disciplining employees who, after warning, refuse to comply." Accordingly, I conclude that, in discharging the nine employees of the fabrication department, Respondent did not violate the Act. B. The March /Z 1981 Discharge of David White On March 17, 1981, fabrication department employee White was terminated for excessive absenteeism. The General Counsel, contends that the discharge was be- 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of White's efforts to build employee interest in a union. Published company policy concerning absenteeism, in relevant part, requires an employee to call his supervisor before working hours if "you have a need to be absent or late for any reason" and to have a "doctor's excuse" if "out sick for more than 1 full day." Company rules warn that "excessive absenteeism or tardiness may be reason for dismissal" and "THE PENALTY FOR BREAKING ANY OF THE ABOVE RULES CAN BE. IMMEDI- ATE DISMISSAL OR HAVING A REPRIMAND SHEET PUT INTO YOUR RECORD. THREE OF THESE SHEETS COULD BE CAUSE FOR DISMIS- SAL." (G.C. Exh. 2). On Tuesday, March 3, 1981, White, with permission of his supervisor, left work early due to illness. He was treated at a hospital emergency room on Thursday, March 5, and received a doctor's slip indicating he could return to work on Monday, March 9 On that day, how- ever, he telephoned his supervisor saying that he "wouldn't be in" (Tr:220); on Tuesday, he again told his supeivisor he "still wouldn't be in" (Tr. 220); on Wednesday, March 11, he was treated at the emergency room and so informed the CompanY; on Thursday, March 12, he did not feel well and told his supervisor he was going to consult with his family dOctor; on Friday, March 13, he called - in to the plant and went to his family doctor who gave him an appointment ' for Monday, March 16;. on that day, after calling in to the plant, he kept his medical appointment, but, according to his testimony, was refused treatment due to nonpayment of prior bills; and on Tuesday, March 17, when he re- ported to work, he was discharged 'by Fabrication De- partment Manager Faris for "excessive absenteeism." At this point, there is a conflict in the testimony. White tes- tified that he told Faris he had doctor's -slips with him and that Fans said there was no need for them. Faris, on the 'other hand, testified that White said he had such slips in his hand, but would not show them. This conflict need not be resolved, however, for the reason that, admitted- ly, the only slips White had Were-two: One, dated March 5, with a March 9 return-to-work date; the 'other, dated March 11, indicating treatment on that date,' but nothing as to a return-to-work date. White had- no doctor's slip accounting for his absences from work on Thursday, March 12; Friday, March 13. ; and Monday, March 16. Faris testified that White missed more time than he worked and that White received more than one warning concerning his attendance. His personnel file, however, contained no written warnings; but, on the other hand, there was no evidence to indicate that written warnings were a part of the Company's regular procedures. White denied 'receiving any warnings, written or oral. In the fall of 1980, Faris had discharged White for refusal to perform an assigned job, bin immediately rescinded the action when, at his urging, White reconsidered and per- formed the work. White did not dispute this incident. In an attempt to show disparate treatment of White, the General Counsel introduced evidence 'that another employee, Claud, received only a written warning for lost time "because of illness." However, this proffer does not indicate the relevant circumstances or whether Claud violated the company rule requiring a doctor's excuse for medical absences. On the other hand, the General Coun- sel, in connection with the evidence relating to the Janu- ary 9, 1981 sit-in, offered evidence that another employ- ee, Crismon,-had been discharged for failure to provide a doctor's excuse. On March 3; the day White left early due to illness, he engaged in activity claimed to be protected concerted activity. More precisely, he had put up on the wall out- side the lunchroom one or two hand-printed cardboard signs requesting coemployees to talk , with him during the lunchbreak if they were -interested in joining a union. There is a conflict in the testimony as to the number of signs that White had posted. White's account of two is not borne out by the photograph (G.C. Exh. 7) which shows only one. However, it is not important, for pur- poses of this case, to resolve-that conflict. Later, during a meeting with Fans, which White requested to discuss a pay raise, Faris asked whether he or White was going to remove the sign from the wall. White stated that he would do so and, 'thereafter, the sign was removed and kept near White's work station. After lunch, White taped the sign to his chest. About 3-p m., Robbins and Fans photographed White and the sign and ordered him to remove it from his person. Faris took the sign and left. --White's activities were undertaken entirely on his own. He had not contacted any particular union and there is no evidence whatever that he consulted with any other employee concerning the posting of his sign or that he dismissed a union with any employee either before or after the' sign was posted. Respondent took no discipli- nary action against White expressly based on the posting or wearing of the sign. Other material, unrelated in subject matter, was put up on the same wall by other employees: A picture of a frog, by a supervisor; a notice of a lost wallet; and fare- well notes to outgoing . employeei. There were no com- pany rules -proscribing the posting of notices on the wall and such postings did not interfere with the operation of the plant. The evidence clearly indicates, and I find, that White's wearing of a cardboard sign on his chest while at his work station, interfered with the performance of his work and constituted a clear safety hazard. As the pho- tograph indicates (G.C. Exh. -7), the cardboard sign is a rigid one, extending from midchest to groin. White's job entails bending to unpack cartons of material and feeding the material into moving equipment where it is consoli- dated and heat-treated. Had the cardboard sign become entangled in the machine, iiersonal injury and property damage could have resulted. Company rules require em- ployees on this operatien to wear fitted Clothing and the photograph indicates White was wearing a long-sleeved shirt with sleeves pushed up to his elbows. Assuming without deciding that White's activities on March 3 constituted concerted activity within the mean- ing of Section 7 of the Act, I nevertheless conclude that such activities were not to any degree • a motivating factor in the. March 17 decision to discharge White. I conclude that the sole and exclusive reason for the dis- charge was White's' admitted violation of the company rule concerning absenteeism. •WACO; ,INC- - 753 A number of factors compel this conclusion. First, White was discharged immediately upon his return from , an extended absence with no medical excuse. Second, al- though the Employer had ample time to do so during the period of March 3 to 17, it made no effort to discharge or otherwise discipline White as a result of the incident of March 3. Third, there is absolutely no evidence of any disparate treatment of employees. And, finally, there is absolutely no evidence of any _antiunion sentiment on,the part of, the Employer. Indeed, , as already pointed out, this Employer has a long bargaining history with a union which represents more than 93 percent of its employees. - Accordingly, I conclude that the March ,17, 1981 dis- charge of David White did not violate the Act. C. Photographing Pickets , On January 14 through 16, 1981, 5 days after , they were discharged, some of the nine discharged employees picketed at or near the entrance to the Newport News plant. They were joined by at least twO nonemployees. The evidence as to this alleged violation is undisputed. .. The picketing was peaceful at all times and the pickets carried signs relating generally to employment griev- ances. Fabrication Department Manager Faris spoke with the pickets, asking them if they were represented and, if so, by whom. He also called the police, Which thereafter observed the pickets, but did not interfere with their activities. On one occasion, Fans photdgraphed the pickets. At no time were the pickets asked to move. Nor were they threatened, arrested, or otherwise interfered with. After 3 days, the pickets Ceased their activities of their own accord. The photographing of pickets by an employer does not constitute a per se violation of the Act. Where, as here, the photographing was noncoercive, nonthreatening, and unaccompanied by other unlawful activity on the part of the Employer, no violation is established. In this respect, it is significant that the complaint does not allege and the General Counsel does not contend that Fans' questioning of the pickets or his calling for the presence of police is violative of the Act. The only assumption to be drawn is that such conduct, like that of photographing, was noncoercive under the circum- stances. D. Warnings not to Discuss Wages The complaint alleges and the undisputed evidence es- tablishes that, on a number of occasions in the fall of 1980, long before the January 9, 1981 discharge of the nine employees and the March 17, 1981 discharge of White, Fabrication Department Manager Fans and other supervisors told employees not to discuss their individual wages with one another. The reason for the instruction: The earnings of each fabrication department employee were different, due to differences in seniority and the Company's policy of considering pay raises on an indi- vidual basis. I find that Respondent made no threats to discharge or otherwise discipline employees for a viola- tion of this instruction and, in this connection, I cannot credit King's testimony to the contrary, as it is unreliable and unsupported by the testimony , of any other employee who gave testimony on this subject. Under the circumstances here, such instructions are not violative of the Act. No employee testified that the instruction inhibited them in the exercise of protected ac- tivity. Indeed, they had no such inhibitions on January 9, 1981, when they engaged . in a sit-in at the plant. Apart from the instructions, the record is free of any antiunion sentiment on the part 'of the employer, as noted above. E. Postheanng Motion to Amend In a footnote to his posthearing brief filed more than 4 weeks after the close of the record in this case, the Gen- eral Counsel seeks to amend the complaint to allege a violation of Section 8(a)(1) of the Act based on Respond- ent's admitted instruction to David White to remove a sign he posted on the wall outside the lunchroom and further seeks that a violation be found by me. Admitted- ly, the complaint alleges no such violation, despite the General Counsel's full knowledge of the facts at all rele- vant times. Neither I nor Respondent was aware that the General Counsel offered evidence relating to the sign in support of an independent violation of the Act. On the contrary, it was obvious that the evidence was offered to establish the "real" 'motive, for White's discharge. Of course, Re- spondent did not brief the issue of an independent viola- tion. Under the circumstances of this case, where there is a total absence of antiunion sentiment on the part of the Employer and where the violation, if found, would be a technical, isolated one at best, the requests will be denied. F. Photographing White with Sign The General Counsel contends that the photographing of White while wearing the rigid, cardboard sign on his chest while at his work station constituted a violation of Section 8(a)(1) of the Act, likening this case, remarkably, to one involving the wearing of a union insignia. Bearing in mind always that the protection of concerted activities in the workplace enjoys equal—but not paramount— status with the goals of industrial safety, this allegation must be dismissed for the reason that White's taping a cardboard sign to his chest, under the circumstances, constituted a clear hazard both to his personal safety and to the Respondent's equipment. [Recommended Order for dismissal omitted from pub- lication.] ORDER IT IS ORDERED that the complaint be dismissed. SUPPLEMENTAL DECISION WILLIAM A. GERSHUNY, Administrative Law Judge By Order of December 3, 1982, the Board directed that the findings set forth in my decision of December 21, 1981, be supplemented in the two following respects. 1. Paragraph 4(b) of the complaint in Case 5-CA-13122: The relevant credible facts surrounding these allegations 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are set forth at pages 6 (LL. 30,' et seq.) and 7 (LL. 1-10) and will not be repeated here. Throughout, in my decision of December 21, 1981, and here, I _have credited the testimony of Faris over that of the employees. Based on my observations of the demeanor of all the witnesses during the course of this 2- day hearing, as reflected in trial notes contemporaneous- ly made, I was of the opinion that Fans, whose testimo- ny was clear and convincing, reported the events most accurately. On the other hand, White and other employ- ees left with me the clear impression that their recall of events was, to a large extent, tailored to meet the litiga- tion. I was neither impressed with their testimony, nor convinced that it portrayed_ the events accurately. Thus, I am unable to find that Fans said anything niore of sub- stance than "who would take down the signs, you or me." More specifically, I find that there was no discus- sion between Faris and White concerning the distribution of literature, the conduct of meetings or discussions with other employees during lunch break. Moreover, I find that there was no threat of discharge or discipline. That leaves only the Faris request that White remove the signs from the wall, while permitting, on a limited number of occasions, other employee notices of a person- al or humorous nature. Board precedent is clear that such disparate treatment is violative of the -Act. Midwest Stock Exchange, 244 NLRB 1108, 1116 (1979); Stanley Furniture Co., 244 NLRB 589 (1979). • However, considering the circumstances at this plant as a whole, including the fact that 700 of its 750 employ- ees are organized—and even taking into account dissimi- lar violations which occurred 6 years earlier on another unrelated jobsite, NLRB v. Waco Insulation, 567 F.2d 596 (4th. Cir. '1977)-1 find the March 3 incident relating to the posting of the signs to be an isolated and minimal one, not communicated to, or known by, other plant em- ployees and free of union animus. In my opinion, effec- tuation of the purposes of the Act, under the circum- stances here, does not require the posting of a notice. Cf. NLRB v. Brooks Cameras, 691 F.2d 912 (9th Cir. 1982). 2. The conflicting testimony of Faris and White concern- ing medical excuses: The relevant credible facts are set forth on page 6 (LL. 1-5), but the conflict was not re- solved there. For reasons set forth in paragraph 1, above, I credit the testimony of Fans that ,White refused to show him the medical slips which White said he had in his hand. There is yet "another reason why I am compelled to reject his testimony in this regard: it is highly unlikely that White would have produced the excuses since he knew (a) they did not in fact account for his absences on the 3 workdays immediately preceding his return to work and (b) he was in violation-of the Respondent's ab- sentee policy and subject to immediate discharge there-- under.' As indicated in' the Board's Order of December 3, 1982, Sec 102 46 of the Board's Rules and Regulationsshall be applicable following serv- ice of this Supplemental Decision