Interlink Cable Systems

304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Interlink Cable Systems and Lorraine Kilcbesty. Case 4-CA-15346 10 August 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 16 March 1987 Administrative Law Judge Irwin Kaplan issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision. 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 the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The General Counsel has excepted to some of the ,fudge'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. Member Johansen finds it unnecessary to adopt the judge's finding that the concerted activity was unprotected Margaret M. McGovern, Esq., for the General Counsel. Pershing N. Calabro, Esq., of Philadelphia, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge. This case was heard in Philadelphia on 16 October 1986. The un- derlying charges were filed by Lorraine Kilchesty, an in- dividual, on 2 October 1985 alleging that Interlink Cable Systems (Respondent) discharged Kilchesty and other in- dividuals employed by Respondent because they con- certedly refused to sign warning slips. These charges gave rise to a complaint and notice of hearing dated 26 June 1986 alleging that Respondent discharged employ- ees Rita Passaro and Theresa Palmer for engaging in protected concerted activities, namely, concertedly refus- ing to sign warning slips, and that Respondent thereby violated Section 8(a)(1) of the National Labor Relations Act. The Respondent filed an answer, conceding, inter alia, jurisdictional facts but denying that it discharged any of the employees in question or that it committed unfair labor practices. According to the Respondent, the em- ployees involved in this proceeding quit their' employ- ment rather than obey reasonable rules and regulations issued by the Employer. Based on the record as a whole, including my observa- tion of the demeanor of the witnesses, and after careful consideration of the posttrial briefs, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent, Interlink Cable Systems, a Pennsyl- vania corporation, is engaged in the manaufacture of wire cables at its facility at 2041 South 29th Street, Philadelphia, Pennsylvania. During the past year, in con- nection with the aforenoted business operations, Re- spondent sold and shipped products valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. The Respondent admits, the record disclosed, and I find that it is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events On 1 October 19851 two supervisors and three produc- tion employees were docked 15 minutes, as reflected on their timecards, assertedly for returning late to their work stations from lunch. According to Gaetan Simirig- lio, Respondent's vice president, these individuals had- punched their timecards that day at 12:54 or 12:55 p.m., but extended their lunch period instead of resuming work at 1 p.m., as required. The next day, 2 October, Simirglio spoke to this group about lateness and gave out warning slips under circum- stances as follows: while this group of supervisors and production employees were in the lunchroom taking their 10 a.m. break, Simiriglio stopped by and told them to wait for him to return because he had something to say. The group consisted of Lorraine Kilchesty and Donald Aros, both supervisors, and production employ- ees John McKinley, Rita Passaro, Theresa Palmer, and 'Caryn Fortuno. Shortly thereafter, Simiriglio returned, carrying the personnel folder of Jane Orem, a discharged employee and warning notices for each member of the group with the exception of Fortuno, a newly hired employee. Si- miriglio told the group that former employee Orem had wrongfully filed for unemployment compensation and had lied on her form about not receiving warnings. Thus, Simiriglio explained, he was issuing these "Employee Warning Notices" to protect himself from similar unem- ployment compensation claims. Each of these standard warning forms contained a list of nine company rule vio- lations with corresponding boxes. Simiriglio had checked the box for "lateness" on each of the warning slips and noted under the remarks section, "failure to obey verbal i All dates hereafter refer to 1985 unless otherwise indicated 285 NLRB No. 44 INTERLINK CABLE SYSTEMS warning." Various members of the group protested, de- nying that they were late. Further, they told Simiriglio that this action was not fair, pointing out that he had not given them any verbal warnings. Kilchesty and Aros told Simiriglio that as supervisors they should be exempt and in any event, the warning slips were "childish . . like being in Kindergarten again " Simirigho explained that lateness had been widespread and told Kilchesty and Aros that on "many occasions" he had warned them "to see that the other employees got back to work on time, let alone themselves." With regard to the extended lunch on 1 October, Simirigho told the employees that he had an employee of his brother's firm (located in the same building) confirm that they were late by having him punch a timecard showing 1:01 p.m, at which time Re- spondent's employees had not yet returned to their work stations Rita Passaro asked Simiriglio, "What would happen if I don't sign the slip?"2 According to Passaro, with cor- roboration from Kilchesty and Palmer, Simiriglio told the group, "If we didn't sign [the warning slips], to pick up our paychecks and leave." According to Simiriglio, he merely stated, "You can't go back to work yet." Si- miriglio asked the employees to let him know what they were going to do and left the room. After Simiriglio had departed, Kilchesty told the other members of the group that she would not sign because she had not been verbal- ly warned and in any event denied that she had been late. The other members, as a group, also refused to sign for the same reasons and McKinley gathered the un- signed warning slips and went into Simiriglio's office According to Kilchesty, she and the other members of the group returned to their work stations to collect per- sonal belongings on the assumption that they had been fired. In Simirigho's office, McKinley told Simiriglio that no one was going to sign a warning slip and although McKinley was inclined to do so, he did not want to cause any problems with the group. Simiriglio told McKinley to tell the group that they could not go back to work until they sign. This directive was then passed on by McKinley to the members of the group, but they still refused to comply. When Simiriglio learned that the group was adamant about not signing he told McKinley to tell them to punch out and go home 3 The following morning, 3 October, McKinley told Si- miriglio that he was willing to sign the warning slip, did so, and was permitted to return to work. The other members of the group have not signed and have not re- turned. 2 I credit Passaro, although both Kilchesty and Palmer testified that Passaro used the plural pronoun "we" when she inquired of Simiriglio regarding the consequences for failing to sign the warning slips I ques- tioned Passaro on this point and her response was consistent with her earlier testimony and categorical vis-a-vis the pronoun "I " However, as I am persuaded (for reasons discussed infra) that the group acted con- certedly, I do not deem the conflict material on this issue a The record is somewhat in dispute whether Simiriglio also told the employees to pick up their paychecks as testified by the General Coun- sel's witnesses or whether the employees asked for their paychecks, as testified to by Simiriglio B Discussion and Conclusions 305 The essence of the General Counsel's case is that em- ployees Rita Passaro and Theresa Palmer concertedly re- fused to sign warning slips and, as this action was work related and undertaken for their "mutual aid or protec- tion" within the meaning of Section 7 of the Act,4 they (Passaro and Palmer) were, absent other misconduct, immune from discipline. Here, the discipline allegedly in- volved unlawful terminations. According to Respondent, these employees had "quit" and were not "fired." More- over, Respondent denied that the action in question was concerted and/or protected. As noted by the General Counsel, "these elements are independent requirements and both must be present, if the action is not undertaken in concert, it is not protected by the statute." See gener- ally Meyers Industries, 281 NLRB 882 (1986). In agreement with the General Counsel, I find that the record clearly established that employees Passaro and Palmer acted in concert with each other, as well as with Supervisors Kilchesty and Aros and employee McKinley and that Simiriglio understood that all these individuals acted as a group.5 Thus, it is undisputed that on 2 Octo- ber, at the time Simiriglio handed out written warnings to the aforenamed five individuals, he confronted them as a group about their lateness Further, when the entire group protested the justification for this action and Si- miriglio was asked about the consesquences for refusing to sign the warning notices, he left these individuals to deliberate by themselves as a group and to advise him of their decision. Simiriglio had conveyed to the members of the group that they had to sign before they could resume working. In Simiriglio's absence, all five individ- uals collectively decided that 'they would not sign and the unsigned warnings were then collected and given to McKinley to turn over to Simiriglio along with the group's negative response. While McKinley was transmitting the group's decision to Simiriglio, in the latter's office, the other members of the group began to gather their belongings just before punching out and leaving the facility. Kilchesty, Passaro, and Palmer testified that they understood Simirigho's message to mean that they either had to sign or leave the premises because they were discharged. McKinley, for his part, expressed reservations about not signing, but de- cided to stick with the group's decision, at least as of 2 October. Finally, it is noted, that Simiriglio's testimony is inter- nally consistent with the notion that Passaro and Palmer as well as the other members of the group acted in con- cert. As testified by Simiriglio. "They were always in a group, they always acted as a group." In these circum- stances, and on the entire state of this record, I am per- 4 Sec 7 in pertinent part provides Employees shall have the right to self-organization to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection [Emphasis added ] 5 The General Counsel represented that Kilchesty and Aros were not named in the complaint because as statutory supervisors they are denied protection under the Act and that employee McKinley elected not to be involved 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suaded and find the General Counsel has clearly estab- lished that Passaro and Palmer as well as the other mem- bers of the group acted in concert when they refused to sign the warning slips. Whether this concerted action was protected poses a more difficult question. The record disclosed that Respondent has long main- tained a general policy of issuing written warnings for various infractions of company rules including lateness. The employees were expected to sign this notice indicat- ing, "I have read this notice and understand it." (G.C. Exh. 2.) This policy was not uniformly disseminated nor enforced On 2 October Simiriglio became more agres- sive in implementing this policy. According to Simirig- lio, lateness was widespread and a recently discharged employee, Jane Orem, had lied on her claim for unem- ployment coverage by denying that she had e%er been warned. This was all explained to the group by Simirig- lio on 2 October when he issued the disputed written warnings He told the group on that occasion that he was issuing these warnings to protect himself from future claims similar to that filed by Orem. In particular, Simir- iglio told the employees that these warning notices were based on their lateness in returning from lunch on the previous day. Earlier that morning, 2 October, when the employees reported for work, they discovered that their timecards reflected that they would be docked 15 min- utes for an extended lunch period. Thus, in addition to being docked in pay for lateness, the employees now re- ceived written warnings that Simirglio wanted signed. As noted previously, the employees denied that they were late and contended that these warnings were unfair. The record tends to support, and I find, that the em- ployees were late in returning from lunch on 1 October as contended by Simiriglio. Thus, Simiriglio credibly tes- tified that the employees were still in the lunchroom at 1:01 p.m. at which time they began to walk back to their work stations, although their cards were punched at 12:54 or 12:55 p in. Simiriglio's testimony is largely con- firmed by General Counsel's witness Kilchesty, who ad- mitted that after she and the other members of the group had punched out at 12:54 and 12:55 p.m., they did not immediately go back to their work station, but returned to the lunchroom for a few minutes As the timeclock and lunchroom are some 200 feet away from the employ- ees' work stations, I find it highly unlikely that they had returned from lunch to their work station on time at 1 p.m. It may be said that docking employees 15 minutes pay, if only 1 minute late, by itself, is unduly harsh, let alone issuing and then requiring these employees to sign warn- ing slips for the same infraction. However, the witnesess or fairness of such measures are not in issue. In Bird En- gineering, 270 NLRB 1415 (1984), employees concertedly ignored, as unfair, a newly established company rule, ef- fective immediately, prohibiting them from leaving Re- spondent's facility during their work shifts. Prior to this time, employees had followed a practice of punching in and out from lunch when leaving and returning to the facility One of these employees complained to the Re- spondent that the rule was unfair and noted that he did not have his lunch inside the plant (presumably because the new rule was announced that day). The employees ignored Respondent's warnings, clocked out in protest, and were discharged. In finding that the employees acted concertedly but were unprotected in the manner they elected to defy the new rule, the Board reasoned, in per- tinent part, as follows: These employees did not engage in a strike, with- holding of work, or other permissible form of pro- test to demonstrate their disagreement with the Re- spondent's rule Instead they simply chose to ignore the rule in direct defiance of the direction and warnings of management. By treating the rule as a nullity and following their pre-rule lunchtime practice they did not participate in a legitimate protected exer- cise but rather engaged in insubordination . These em- ployees were attempting both to remain on the job and to determine for themselves which terms and conditions of employment they would observe. [Emphasis added ] It is well settled that unrepresented employees who are without the benefit of an established grievance proce- dure, as in the instant case, have a right under Section 7 of the Act, to give expression to their concerted protest over terms, tenure, and conditions of employment. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). At the same time, however, it must also be noted that Section 7 does not protect all concerted activities. Wash- ington Aluminum , supra at 17 The parameters delineat- ing permissable concerted activity that is protected from impermissible forms of concerted protest are generally determined by a plethora of factors on a case-by-case basis. As noted by the Board "the precise contours within such activity (concerted protest concerning work- ing conditions) is protected cannot be defined by hard- and-fast rules. Instead , each case requires many relevant factors be weighed ." Waco Inc., 273 NLRB 746 (1984); see also Bird Engineering, supra. On one hand , in the circumstances of Washington Alu- minum , supra, employees walked off the job to protest the cold conditions in the plant and were protected; on the other hand, in Waco Inc., supra, a concerted work stoppage was unprotected when employees remained in Respondent's lunchroom for some 3 - 1/2 hours in protest of other employees who were discharged or forced to quit under purportedly unjust circumstances . In Waco, the employees also demanded that their manager meet with them as a group but he refused on that basis. In- stead , he indicated a willingness to meet them individual- ly in his office. The manager told the group they must choose either to return to work , in which case he prom- ised to meet with them individually , or to punch out and leave the premises. The employees remained in the lunchroom for a substantial period giving no indication that they were going to accept either alternative and, fi- nally, later in the morning they were discharged. The Board found, inter alia, that "they [the employees] had overstepped the boundary of a spontaneous work stop- page and were occupying the facility in a manner which was unprotected " In the instant case, the circumstances present a hybrid- like situation . The employees never spoke of or engaged INTERLINK CABLE SYSTEMS in a strike, work stoppage, or some other form of self- help, where, absent misconduct or unusual circum- stances, such conduct is protected 6 Instead, the group's self-help consisted solely of defying Simirigho's orders. In effect, the group attempted to dictate for themselves which of Simiriglio's orders or terms of conditions of employment it would observe. The group left the facility only when Simiriglio ordered them to punch out and leave and only after they had an opportunity to deliber- ate and make clear to their employer that they were not going to sign.? According to the General Counsel's witnesses, signing the warning is tantamount to an admission . This percep- tion was not communicated to Simirigho . Rather, the members of the group denied that they had been late (a denial found herein to be inconsistent with the admitted facts), and they complained that it was unfair. Simiriglio, on the other hand, asserted, with some documentary sup- port, that the signature represents merely an acknowl- edgement that the employee has received a warning and understands it The warning notice itself makes no refer- ence to any admission, but states, "I have read this notice and understand it." It is also noted that the notice pro- vides substantial space under the heading "Remarks" for an employee to state his or her position As no employee signed "under protest" and as the matter had not been raised, I need not speculate regarding the consequences of doing so. The composition of the group (two of the five mem- bers were supervisors) presented an additional challenge to Simiriglio, This challenge was compounded when the two supervisors told Simiriglio, in the presence of the other employees, that the warning slips were "childish . . . like being in kindergarten again ." Further, as credi- bly testified by Simiriglio, without contradiction, they appealed to him to exempt them from the slips on the basis of their supervisory status. Simirigho refused , point- ing out that he expected them to ensure punctuality from their subordinates no less the fact that they too were late. In the total, circumstances of this case, I am persuaded that the group 's refusal to sign the warning slips, without more, falls short of protected self-help, when weighed against Respondent's right to maintain overall discipline by imposing rules, even if newly established or invoked. In short, I find that the concerted activities of Rita Pas- saro and Theresa Palmer are unprotected by the Act. Having found that these concerted activities were not protected, a fortiori, Respondent was free to invoke dis- ciplinary measures including discharge. See NLRB v. Electrical Workers IBEW Local 1229, 346 U.S. 464, 477 (1953) ("The legal principle that insubordination, disobe- dience or disloyalty is adequate cause for discharge is plain enough"); see also Waco, Inc., supra; Bird Engineer- 6 Compare Johnnie Johnson Tire Co, 271 NLRB 293 (1984) (a brief work stoppage was protected that involved employees leaving their work stations to complain to Respondent about reduction in pay before return- ing to work), Douglas Aircraft Co, 260 NLRB 1354 (1982) (a protected employee distributed literature to fellow employees in protest over a manager's institution of new rules) 7 Simiriglio noted that while the employees were on the premises with- out clocking out and defying his orders , they were still on company time 307 ing, supra. Still, I find, for reasons noted below, that the record falls short of establishing that the employees were discharged as alleged. Thus, assuming arguendo, the ac- tivities were protected, I find that the General Counsel has not demonstrated by a preponderance of the credible evidence that Simirigho discharged Passaro and Palmer. It is undisputed that none of the employees expressly stated that they were "quitting"; nor did Simiriglio tell any of them that they were "fired," "discharged," or "terminated " the test, in such circumstances, is whether Simiriglio's statements and action would reasonably cause employees to believe that they had been dis- charged. C. J. Krehbiel Co., 227 NLRB 383, 384 (1976); Pink Supply Corp., 249 NLRB 674, 679 (1980). The record disclosed that when it became clear that the employees were not going to sign the warnings, Si- mirigho told the employees to punch out and leave the facility.8 Simiriglio testified that they had to clockout be- cause they were on company time in the lunchroom. A short time earlier, Passaro had asked Simiriglio about the consequences and the latter insisted that they sign or punch out and leave the premises. According to the General Counsel , Simiriglio's statement was tantamount to a discharge. Given the total circumstances, for reasons noted below, I cannot concur. The record revealed certain significant facts that tend to militate against the discharge allegation or that em- ployees reasonably believed that they were discharged. First, as testified by Kilchesty, after Simiriglio told the group of the consequences they faced for refusing to sign (in response to Passaro's inquiry), he asked them to let him know of their decision. Clearly, if they were already discharged, there would be no reason for Simiriglio to be further advised Rather, I find that Simiriglio by his statements and action merely withheld permission to the group to resume working unless they signed the warning slips. Simiriglio's condition in that regard was unambig- uous. However, the group remained adamant in their re- fusal to comply. As testified to by Kilchesty, they had already punched out and gathered their belongings while employee McKinley was transmitting the groups nega- tive response. Also militating against the discharge allegation is the experience of McKinley the following morning. On the morning of 3 October, McKinley told Simiriglio that he was willing to sign the warning slip, did so, and resumed working immediately. The record is devoid of any evi- dence tending to show that had any other member of the group taken the same action that he or she would have been treated differently. On the contrary, McKinley's 8 According to the General Counsel's witnesses, Simiriglio also told them to pick up their paychecks Simirigho, on the other hand, testified that the employees requested their paychecks before leaving the premises and he merely accommodated them In crediting Simiriglio over the General Counsel's witnesses, it is noted , inter alia, that largely on the bases of logistics, I had previously found that the General Counsel's wit- nesses had not testified credibly whether they were actually late on 1 Oc- tober as testified to by Simirigho Moreover, it is noted that Kilchesty and Palmer testified that Passaro asked Simiriglio what would happen if "we" did not sign the slips whereas Passaro insisted that she used the sin- gular pronoun "I " This conflict tends to cast further doubt on the over- all credibility of the General Counsel's witnesses 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD compliance and return to work, admittedly known to at least Kilchesty, tends to belie any notion of futility, yet, neither Kilchesty, nor any other member of the group, inquired of S1mlriglio about their employment status. As noted previously, the group never spoke of a strike or work stoppage. In the circumstances of this case, without more, Respondent's contention that the employ- ees "quit" has some appeal. Compare Daniel Construction Co, 277 NLRB 795 (1985) (each employee who had left the premises stated an intent to return the following day). It may be that here the employees quit, but also hoped that Simiriglto would countermand his disputed orders and urge them to return. In any event, I need not make that finding as the burden is clearly on the General Counsel to establish, prima facie, that the emloyees rea- sonably believed that they were discharged. See Pink Supply, supra (burden not met even though employees expressly communicated to their employer that they were not quitting). On the basis of the foregoing and on the entire state of this record,9 I find that the General Counsel has failed to 9 While not dispositive of the discharge allegations or related issues, I have noted that the unemployment compensation claims of Theresa Palmer and Rita Passaro were denied by the Commonwealth of Pennsyl- vania, Department of Labor and Industry, Office of Employment Secun- ty on the basis that these individuals had voluntarily terminated their em- establish by a preponderance of the credible evidence that Palmer and Passaro were discharged as alleged. Having previously found that the concerted activities of Rita Passaro and Theresa Palmer are unprotected by the Act, I shall recommend that the complaint be dis- missed in its entirety. CONCLUSIONS OF LAW 1. The Respondent, Interlink Cable Systems is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The General Counsel has not established by a pre- ponderance of the credible evidence that the Respondent violated Section 8(a)(1) of the Act.On these findings of fact and conclusions of law and on the entire record, I issue the following recommended' 0 ORDER The complaint is dismissed in its entirety. ployment (R Exhs 2, 3(a)-(b)) Western Publishing Co, 263 NLRB 1110 fn 1 (1982) io If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses