Jasper Seating Co., Inc.

550, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jasper Seating Co., Inc. and Patricia Thompson and Kenneth Goodpasture. Cases 25-CA-17697-1 and 25-CA-17697-2 31 August 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 July' 1986 Administrative Law Judge' Burton S. Kolko issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, and conclusions and to adopt the recommended Order. The issue presented here is whether the Re- spondent violated Section 8(a)(1) of the Act by dis- charging employees Patricia Thompson and Ken- neth Goodpasture for walking off the job together in protest over perceived uncomfortably cool and breezy conditions in their workplace. In agreement with the. judge and contrary to our dissenting col- league, we find that the Respondent did violate the Act. As set forth fully in the judge's decision, temper- ature in the Respondent's woodworking shop had been the subject of continuing discussion in the spring of 1985. With the onset of warm weather, the practice there had been to open the shop's large exterior overhead door at the start of each day in order to let' in cool air. Alleged - discrimina- tees Thompson and Goodpasture worked at band- saw stations about 40 feet from this door. When the door was open, they felt too cold and exposed to drafts. Other employees farther from the door were comfortable. If the door was closed, Thomp- son and Goodpasture were satisfied, but not their too-warm coworkers. Throughout May, Thompson complained to management about the draft created when the door was left open. In early June Thompson told Fore- man Humbert that she had a sore throat which was aggravated by the draft and she was going home if the door remained open. After Thompson left work to receive medical attention from her doctor, Goodpasture complained to Production Manager Whitte about the cold draft. Sometime thereafter, Whitte called an employee group meeting to discuss the problem. Thompson claimed the draft made her sick and Goodpasture claimed it blew sawdust in his face while he was working. Whitte directed the placement of ther- mometers in the work area. A temperature reading above 68 degrees would mean that the door stayed open. In the next week, on the morning of 19 June, Thompson and Goodpasture again were bothered by what they felt-were chilly, drafty working con- ditions. Although the thermometers read 72 to 74 degrees, Thompson asked a maintenance man to close the door. He refused her request prior to as- certaining the desires of the other employees. Thompson and Goodpasture then decided to go home and told Whitte and other supervisors that they were leaving because it was too cold and drafty to work. Subsequently, the Respondent con- vened a management meeting and decided to dis- charge both employees for their walkout. The judge found that the walkout was concerted protected activity. As in NLRB v. Washington Alu- minum Co., 370 U.S. 9. (1962), the unrepresented employees had protested about plant temperature, a working condition of common concern. The judge rejected the Respondent's arguments that the em- ployees' conduct was unprotected because it in- volved unreasonable, personal griping about work- ing temperature preferences not shared by any other employee. He not only found the employees' concerns reasonable, but also referred to language in Washington Aluminum stating that reasonable- ness was irrelevant in determining the existence of a labor dispute.I He also found that the walkout was a reasonable means of protest in the unrepre- sented shop. Finally, he found no merit in the Re- spondent's claim that without the right to dis- charge here, it was confronted with an irreconcila- ble dispute among its employees. We agree with the judge's analysis. Contrary to the suggestion of 'our dissenting colleague, the Sec- tion 7 right to strike over employment conditions is a basic employee right and cannot be characterized as "thin." In addition, the fact that the protesting employees, represented an isolated minority did not justify the discharge action. The term "labor dis- pute" as defined in Section 2(9) of the Act includes any controversy concerning terms, tenure, or con- ditions of employment.2 The fact that the Respond- ent had made a good-faith effort to accommodate divergent employee interests likewise did not justi- fy discharge. In Washington Aluminum, the fact ' 370 U S at 16 2 We find no merit in the Respondent's argument that the discharged employees' walkout was unprotected because it was in contravention of the majority rule principle of Emporium Capwell v Western Addition Community Organization, 420 U S 50 (1975) This principle derives from the concept of exclusive collective-bargaining representation under Sec 9(a) It is irrelevant to the question whether concerted activity by unrep- resented employees is protected by the Act 285 NLRB No. 67 JASPER SEATING CO. that the company was already making every effort to accommodate the concerns of the unrepresented employees and had an established plant rule forbid- ding employees from leaving work without prior approval did not permit it to punish employees by discharging them for invoking their statutory right to walkout in furtherance of a labor dispute. We also reject the novel argument that the Re- spondent actually had no choice but to discharge or discipline the two employees. The Respondent could have exercised its lawful option to replace them without significant delay or disruption to business operations. Had Thompson and Goodpas- ture engaged in partial or repeated intermittent work stoppages or created a safety hazard by their precipitate walkout, which would have removed their protest from the Act's protection, the Re- spondent could then have lawfully discharged or disciplined them. In these circumstances, we conclude that the em- ployees' brief refusal to work for 1 day in protest of adverse working conditions is protected, con- certed activity and their discharge because of such activity violated Section 8(a)(1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jasper Seat- ing Co., Inc., Jasper, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order.3 CHAIRMAN DOTSON, dissenting. I do not believe that the Act was intended, to protect the conduct of the individual Charging Parties here. Employees Patricia Thompson and Kenneth Goodpasture walked out on their jobs in a fit of personal pique over their subjective discom- fort from working in the draft and "chill" of a 72 to 74 degree temperature. No other coworker shared their discomfort. Their disagreement here is with fellow employees, not their employer. Other employees had consistently opposed efforts by Thomspon and Goodpasture to raise the tempera- ture by shutting a large door at the entrance to the plant. After a group meeting to discuss this matter, the Respondent made a good-faith effort to accom- modate all interests by implementing specific tem- perature guidelines for the raising and lowering of the door. a Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S C. § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 551 The Section 7 rights involved in the two em- ployees' continued protests of discomfort were ex- tremely thin. Furthermore, they must be balanced against the Respondent's substantial interests in maintaining production and in assuring labor rela- tions stability through a working environment ap- parently acceptable to all other employees.' To hold, as the judge and my colleagues do, that the Act precludes disciplinary action against Thomp- son and Goodpasture gives the Respondent the Hobson's choice of doing nothing at all to end em- ployee discord or catering solely to the whims of two employees. Neither the circumstances of Thompson and Goodpasture's complaint, nor the principles underlying Section 7 require such an absurd, impractical result. I would dismiss the complaint. 1 See, e g , Business Services by Manpower v. NLRB, 784 F 2d 442 (2d Cir 1986) These remarks do not signify adherence to the Respondent's arguments that Thompson and Goodpasture were bound by the majority decision of its employees DECISION BURTON S. KOLKO, Administrative Law Judge. The Jasper Seating Company fired Patricia Thompson and Kenneth Goodpasture for walking off the job. Those two employees walked off the job to protest the outside doors being left open, which created a draft of breeze that was too cold and that blew sawdust. The General Counsel's complaint' alleges that the employees were en- gaging in activity that is protected under Section 7 of the Labor Management Relations Act.2 The Employer con- tends that the employees were engaging in conduct that is not protected under the Act. I agree with the General' Counsel, and I conclude that the Employer violated Sec- tion 8(a)(l) of the Act by discharging the two employ- ees. Discussion Jasper Seating is located with other wood working companies in Jasper, Indiana, in southern Indiana rough- ly on a line with St. Louis, Missouri, to the west and Louisville, Kentucky, to the east. The weather can be warm in June, but not unpleasant because the nights can be relatively cool. The Company's workday starts at 7 a.m. On 19 June 1985, when Thompson and Goodpasture took up their bandsaw stations at the start of the day, the shop's doors, about 40 feet from their 'workstations, were open to let in cool air. These doors framed an entryway with an interior sliding door and an exterior overhead door. Thompson was bothered by the draft, and she called to maintenance man John Warnsman to lower the exterior overhead door. Warnsman said that he would i The complaint issued on 28 January 1980, following the riling of charges on 14 December 1985 The hearing was held on I May 1986 in Jasper, Indiana Briefs were received on 20 June 1986 2 29 U S.C. § 157 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have to check with the other employees to see if that is what they wanted too Taking this as a refusal Thomp- son told Goodpasture that it was too cold and drafty to work, to which Goodpasture said, "Let's go home " They proceeded to do so, telling Foreman Humbert that it was too cold and drafty to work so they were leaving. Humbert preferred to stay out of such disputes, and said nothing. As they were leaving they encountered Produc- tion Manager Whitte and Personnel Manager Brang who were making their startup rounds of the workstations. Thompson told them that it was too cold and drafty in their work area and that they were going home, to which neither manager replied Goodpasture then asked Brang if he could use the office phone to call for a ride home, after which the two left the plant. Following the departure of Goodpasture and Thompson, Whitte pulled their timecards at Company President Mutchman's direc- tion. Mutchman told Whitte that employees who left the plant should be disciplined. Both employees returned to work the morning after they had left. After not finding their timecards they spoke with Foreman Humbert who told them that they had to see Mutchman. They did, and explained to him that they left because it was too cold and drafty in their work area. Mutchman told them to go home and that he would inform them of his decision about discipline the next day. Mutchman held a meeting with his managers and supervisors to discuss what discipline to prescribe. After hearing various opinions, Mutchman decided that they should be fired. The next day Mutchman tele- phoned Goodpasture that "the discipline had to stick." Goodpasture in turn called Thompson and told her of his call from Mutchman and that they had "got the axe." Analysis Employees may obtain the protection of the Act when they act in concert with conduct that is meant to invoke the rights that the Act gives them, so long as manage- ment knows about the conduct and its end and so long as the conduct is not so offensive as to overcome its worthy purpose. Meyers Industries, 268 NLRB 493 (1984); JMC Transport Y. NLRB, 776 F.2d 612 (6th Cir. 1985). Thus, we must determine whether Goodpasture and Thompson were acting in concert, whether their conduct was protected, whether management knew about the fact and aim of their protest, and whether they were fired because they were engaging in a protest. We do not dwell on the latter two elements because it is un- disputed that Mutchman knew about the walkout and its purpose and expressly fired the employees based on that knowledge. 1. Concerted action. Section 7 of the Act provides: Employees shall have the right to . . engage in . concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. There is no doubt that "concerted activities" are in- volved in this case. The temperature in the plant was a term and condition of employment, NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), that affected all the workers. This last is made clear by an episode in the plant a week earlier. Through the previous May Thompson had complained to management about the draft created when the double doors were left open. Brang, her fiance, was usually so- licitous and even when not asked would himself close a door. But this in turn antagonized other employees who worked farther inside the shop and who wanted the breeze to dispell the warm air in their area. Early in June Thompson told Foreman Humbert that she had a sore throat that she attributed to the draft, and she said that if the doors stayed open she was going home. They did, and she did. She went to the doctor, received antibiotics, and returned to work the next day. After Thompson left to visit the doctor, Goodpasture told Whitte that the open doors were a problem because of the cold draft of air that blew in. Whitte told him that he would call a meeting about the doors. That meeting was held in the week preceding the Thompson/Goodpasture walkout. Thompson argued that the draft from the doors caused her to, be sick, which cost her worktime and money. Goodpasture argued fur- ther that the draft blew wood sawdust into his face as he worked. Other employees argued that they were warm and wanted the relief from the breeze funneled in through the passage created by the open double doors. Foreman Humbert suggested 'that the doors be closed but that a fan be used for the warmer employees. In- stead, Whitte decided to place a thermometer in the work area; above 68 degrees the doors would be open, and below 68 degrees the doors would stay closed It is clear that those under Whitte's ultimate supervi- sion were concerned with the shop's temperature, and' that management was aware of this concern. Even if the rest of the shop could not care less, Thompson and Goodpasture were very much concerned, and two is all it takes. JMC Transport, supra. When they walked off the job to protest the adverse working conditions caused by management's failure to close the doors, they were en- gaging in concerted activity within the meaning of Sec- tion 7. 2. Protected activity. The Company argues that the walkout constituted action that is not protected by the Act for two reasons, that it violated an understanding among the employees, and because Thompson was insub- ordinate in leaving. We deal with the latter first, briefly as deserved because the Company has not pushed the point. On 19 June when Thompson asked Warnsman to close the door, he told her he would not do it until he knew that the other employees agreed or at least did not care. At some point, either before or after checking with others, Warnsman yelled at Thompson that the shop was run for the benefit of others beside Thompson. And at some point in this exchange Thompson yelled to Warns- man, "Fuck you, you son-of-a-bitch," and gathered her things to leave While this was rather unbecoming con- duct, it was not directed at a supervisor nor was it the basis for Thompson's discharge even if the remark were deemed insubordinate. Not having discharged her for that reason the Company cannot now claim that the foul JASPER SEATING CO. language taints her conduct to the point of rendering it unprotected, JMC Transport, supra, 776 F.2d at 619. Equally without merit is the Company's argument that "our case turns on Goodpasture and Thompson's insist- ence on their personal preference and does not involve personal safety." (Br. at 10.) While the Company puts much stress on the thermometer readings and the clothes worn by Goodpasture to paint a picture of warmth that belies the claims of a drafty breeze, all that is beside the point. It was the breeze, not the still air, that stirred this dispute (as well as the sawdust in Goodpasture's face), and one cannot say that as a matter of law those both- ered by that breeze were being bothered unreasonably. Moreover, even-if to others it would be unreasonable to make such a large point over a seemingly small bother, Washington Aluminum, supra, is to the contrary. The Court's language speaks directly to that point: "[assum- ing arguendo] that the conduct of the men in leaving was unnecessary and unwise . . . it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not." 370 U.S. at 16. Further, the Company implies that the remedy chosen, walking off the job, was unreasonable. But we have to remember that this was an unrepresented group of em- ployees. There was no grievance procedure to invoke. Nor had requests to Foreman Humbert or Manager Whitte produced results (except in those cases where Personnel Manager Brang interceded, and as the Compa- ny implies he did that because of his relationship with Thompson). So in the context of a labor dispute that these employees had with the Company over a condition of their employment that affected health and safety, a walkout in these circumstances is both reasonable and protected.3 The Company's response to this, and its principal point in arguing unprotectedness, is that "it put the employer in an untenable position in relation to the other employ- ees. How could the employer placate two and go against all the other employees who were similarly situated and preferred the door open?" (Br. at 8.) But the issue is not whether the Company should or should not keep the doors open. The issue is whether the Company should be allowed to discharge employees for invoking their rights to act concertedly in furtherance of a labor dispute. That is why they were discharged, and because "the employer expressly fired the employee[s] for the very behavior challenged as unprotected" the Com- pany's defense of unprotectedness is without merit and its action is found to be a violation of Section 8(a)(1) of the Act. JMC Transport, supra, 776 F.2d at 618. The Company has not exhausted its ability to accommodate the divergence of views among its employees to the point where it could argue a business justification for the discharges. 3 Brang testified that the doors had been an ongoing problem He re- called that employee Terry Davis also had complained about the cold when temporarily at the bandsaw location Davis' testimony confirmed this CONCLUSIONS OF LAW 553 1. By discharging Patricia Thompson and Kenneth Goodpasture because they protested their working con- ditions, Respondent violated Section 8(a)(1) of the Act. 2. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act.4 On these findings of fact and conclusions of law and on the entire record, ,I issue the following recommend- ed5 ORDER The Respondent, Jasper Seating Company, Inc., Jasper, Indiana, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Discharging employees because they protest the terms and conditions of employment or engaged in other protected concerted activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Patricia Thompson and Kenneth Goodpas- ture immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. In making ' them whole Respondent shall pay backpay with interest. See F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). (b) Remove from its files any reference to the dis- charge of Patricia Thompson and Kenneth Goodpasture on 21 June 1985, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel actions against them. (c) Post at its facility in Jasper, Indiana, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure 4 During 1985, in the course of manufacturing, selling, and distributing chairs and office furniture, Respondent purchased and received products, goods, and materials over $50,000 directly from places outside Indiana 5 If no exceptions are filed as provided by Sec 102 46 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 6 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the notices are not altered, defaced, or covered by any other material. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge employees because of their protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Patricia Thompson and Kenneth Goodpasture immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions without prejudice to their se- niority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their dis- charge, less any net interim earnings, plus interest. WE WILL notify them that we have removed from our files any reference to their discharge and that the dis- charge will not be used against them in any way. JASPER SEATING CO., INC.