Serta Simmons Bedding & Subsidiaries

372 NLRB No. 115 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Serta Simmons Bedding, LLC and William Beato, Juan Santana, and Severino Felix. Cases 04– CA–266838, 04–CA–267718, and 04–CA– 268125 August 4, 2023 BY MEMBERS KAPLAN, WILCOX, AND PROUTY DECISION AND ORDER On December 17, 2021, Administrative Law Judge Robert A. Ringler issued the attached decision. The Gen- eral Counsel and Respondent each filed exceptions, sup- porting briefs, answering briefs, and reply briefs. The National Labor Relations Board has delegated 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,1 and conclusions, to amend the remedy, and to adopt the judge’s recommended Order as modified and set forth in full below. INTRODUCTION This case involves an employer’s response to an in- plant work stoppage by some of its unrepresented, long- term employees. We adopt the judge’s findings, for the reasons set forth in his decision, that the Respondent vio- lated Section 8(a)(1) of the Act by (1) threatening to fire employees for engaging in protected concerted activity;2 (2) informing employees that they were fired because of their protected concerted activity; and (3) summoning po- lice to have employees removed from the cafeteria for en- gaging in protected concerted activity. Finally, for the rea- sons stated below, we adopt the judge’s finding that the Respondent violated Section 8(a)(1) by firing 13 employ- ees for engaging in a protected in-plant work stoppage.3 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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 reversing the findings. In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. THE DISCHARGE OF THE 13 EMPLOYEES A. In the spring of 2020,4 the Respondent suspended oper- ations and laid off its workforce in response to the emerg- ing Covid-19 pandemic. On June 1, it resumed operations and recalled workers. Shortly thereafter, the Respondent informed its employees in group meetings that, in order to attract new hires, it had decided to raise its starting wage for new hires from $15 per hour to $17 per hour. The Re- spondent further informed its employees that any incum- bents earning less than $17 per hour would be raised to that rate, and anyone already earning more than that would receive between 25 to 35 cents more per hour based on service time. This upset some of the employees because it meant that some incumbent employees would receive the same pay as new hires and the pay differential between the long-term employees and new hires would shrink. William Beato, a first-shift employee who had worked for the Respondent for approximately 15 years, was one of the employees who received the smaller 25-cent-per- hour raise. In mid-July, Beato, accompanied by two coworkers who waited outside Operations Manager Charles Hoover’s office door, told him that he was there on behalf of his coworkers and that the employees were unhappy with the raises they had received. Beato asked if Hoover could do something, and Hoover replied that he was going to try but needed to consult with his corporate superiors. About 2 weeks later, after not hearing back from Hoover, Beato saw Hoover walking through the plant. In the presence of approximately 15 other employ- ees, Beato and a coworker asked Hoover whether they would be getting the raises they had requested. Hoover replied that there was no money for a raise. On August 3 at about 9 a.m., a group of about 40 first- shift employees including Beato walked off the job, en- tered the office hallway, and asked to speak with Hoover about their pay. Hoover was on a conference call and did not come out into the hallway. When HR Business Partner Sharon Lauck entered the hallway, the employees said they wanted to speak to Hoover about their pay. Lauck 2 In adopting the finding of this violation, we find merit in the General Counsel’s exception to the judge’s finding that Safety Officer Geury Hernandez corroborated HR Business Partner Sharon Lauck’s denial that she made the threat. In fact, Hernandez testified that he did not find out about the employees’ protest until the employees were already in the caf- eteria, which was after Lauck uttered the threat in the hallway, and that he was not present when Lauck initially spoke to employees in the hall- way. 3 We also correct the judge’s inadvertent error in finding that dis- charged employee Roberto Perez returned to work in 2021. This error does not affect the findings of violations in this case. 4 All dates are in 2020 unless otherwise noted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 told the employees to “go back to work or you are fired,” whereupon about half the group returned to work. The remaining protestors then went to the cafeteria to wait for Hoover. At some point thereafter, Lauck told the protes- tors in the cafeteria that they should go home.5 The judge found that later that morning, during an 11:15 a.m. conference call involving Hoover, Lauck, Regional VP Greg Schnipke, Chief Human Resources Officer Dan- iel Goldblatt, Senior HR Vice President Dana Caustinson, and others, the Respondent decided to discharge the pro- testors for refusing to return to work. Through a transla- tor,6 Hoover then told the protestors in the cafeteria that the Respondent had decided to fire all of them, but that they had one last opportunity to return to work. A handful of employees then returned to work, and the remaining 13 protestors were terminated. The remaining protestors then asked for termination let- ters. After the protestors received letters stating that they were fired for refusing to return to work, Lauck said she was going to call the police if the employees did not leave. The employees did not leave and repeated their demand to speak about their wages. Thereafter, at about 11:30 a.m., Lauck contacted the state police. A police officer arrived at about noon, told the employees to leave, and the em- ployees left the facility without incident. Applying the analysis set forth in Quietflex Mfg. Co., 344 NLRB 1055 (2005) (“Quietflex”), the judge found that the employees’ work stoppage did not lose the protec- tion of the Act, and their termination for engaging in the work stoppage violated Section 8(a)(1). As explained be- low, we agree that the work stoppage was protected and that the terminations violated the Act as alleged. B. The Section 7 right to engage in concerted activity for the purpose of mutual aid or protection is “afforded equally to nonunion employees and union employees.” NLRB v. McEver Engineering, Inc., 784 F.2d 634, 639 (5th Cir. 1986). Accordingly, unrepresented employees are ordinarily engaged in protected concerted activity when they cease work to pressure their employer to im- prove their wages and working conditions. See, e.g., At- lantic Scaffolding Co., 356 NLRB 835, 837 (2011); Ridge- way Trucking Co., 243 NLRB 1048, 1048 (1979), enfd. 622 F.2d 1222, 1223–1225 (5th Cir. 1980). However, 5 The protestors testified that Lauck told them that they were clocked out and should go home just minutes after they arrived in the cafeteria, whereupon they responded that they wanted to speak with Hoover. Lauck, however, testified that the protestors were clocked out only after they ignored her when she asked them in the cafeteria to either go back to work or clock out and go home. Without specifically reconciling this where, as here, employees seek to engage in Section 7 ac- tivity on their employer’s property against their em- ployer’s wishes, their Section 7 rights must be balanced against their employer’s property rights. See Atlantic Scaffolding Co., 356 NLRB at 837. While an on-the-job work stoppage can be a form of economic pressure pro- tected by the Act, “‘[a]t some point, an employer is enti- tled to exert its private property rights and demand its premises back.’” Quietflex, 344 NLRB at 1056 (citation omitted). In Quietflex, the Board reiterated that the focus should be on balancing the degree of impairment of the employ- ees’ Section 7 rights if access is denied against the degree of impairment of the employer’s property rights if access is granted, and set forth 10 factors to consider “in deter- mining which party’s rights should prevail in the context of an on-site work stoppage[.]” Id. at 1056-1058 (survey- ing cases). The 10 Quietflex factors are: (1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage in- terfered with production, or deprived the employer access to its property; (4) whether employees had an adequate op- portunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were repre- sented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether the employees attempted to seize the employer's property; and (10) the reason for which the employees were ultimately discharged or disciplined. Id. at 1056-1057. As the Board has explained, “No one factor is given controlling weight and . . . ‘the precise contours within which [a work stoppage] is protected cannot be de- fined by hard-and-fast rules. Instead, each case requires that many relevant factors be weighed.’” Los Angeles Air- port Hilton Hotel & Towers, 360 NLRB 1080, 1083 (2014) (citation omitted), enfd. 789 F.3d 154 (D.C. Cir. 2015). As the Board has further explained, “‘[T]he locus of [the] accommodation [between employer and employee rights] . . . . may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given context.’” Id. (citations omitted). testimony, the judge found that Lauck instructed several supervisors to clock out the protestors at 11 a.m. The Respondent’s records, however, indicate that between 9:31 a.m. and 9:40 a.m. company officials had in- deed clocked out several of the protestors effective 9:15 a.m. 6 Many of the Respondent’s employees speak Spanish. SERTA SIMMONS BEDDING 3 The judge concluded here that 7 Quietflex factors—fac- tors 1, 2, 3, 5, 8, 9, and 10—weigh in favor of protection, that factors 6 and 7 weigh against protection, and that fac- tor 4 is neutral. Considering all these factors, he placed great reliance on the fact that the work stoppage had a pro- tected Section 7 core aim (a protest over wages), that the employees were fired for refusing to go back to work and not for trespassing, and that the protest was peaceful, oc- curred away from the plant floor, and did not impede pro- duction. We agree with the judge that the factors he cites warrant a finding that the work stoppage was protected and that factor 4 neither supports nor detracts from protec- tion. However, as explained below, we find that two ad- ditional factors—factors 6 and 7—also weigh in favor of protection, making the overall case for protection even stronger. C. As noted above, we adopt the judge’s findings, for the reasons stated in his decision, that factors 1, 2, 3,7 5, 8, 9,8 and 109 weigh in favor of protection. Below we discuss factor 4 and the two factors where we reach different con- clusions than the judge did. Factor 4 (whether employees had an adequate oppor- tunity to present grievances to management): The judge 7 With respect to factor 3 (whether the work stoppage interfered with production, or deprived the employer access to its property), we find no merit to the Respondent’s argument on exception that the work stoppage decreased productivity and caused two production lines to be shut down. This argument misses the point that all the protestors did was withhold their own labor. As such, the argument is irrelevant to the consideration of whether the in-plant protest lost protection. We further note that, although some employees ate lunch in the cus- tomer showroom during the work stoppage, this did not – as the dissent contends – interfere with the Respondent’s ability to use its property as it intended. The record shows that, because of the Covid-19 pandemic, the customer showroom was not open to the public during the time of the work stoppage, and the Respondent used the showroom as a “second caf- eteria” during the pandemic. And, because the showroom was not open to the public during the work stoppage, the fact that some employees ate lunch in the showroom did not even have the potential to interfere with the Respondent’s production or sale of mattresses. Moreover, as noted below (fn. 8), the protestors did not interfere with any employee who sought to pick up their lunch in the cafeteria or to use the vending ma- chines there. 8 With respect to factor 9 (whether employees attempted to seize the employer’s property), we find without merit the Respondent’s contention on exception that the protestors had “effectively seized” the cafeteria. The Respondent argues that, as a result of Covid-19 social distancing requirements, employees could not “use” the cafeteria while the protes- tors remained there. However, the record shows that the protestors did not interfere with any employee who sought to pick up their lunch in the cafeteria or to use the vending machines there. It also shows that deliv- eries of supplies to the cafeteria continued without interruption or inter- ference during the protest. The Respondent also fails to show that any employee was unable to eat lunch during the protest. During the found that this factor was neutral, neither supporting nor detracting from protection. The judge reasoned that alt- hough the Respondent had an open-door policy that pro- vided a forum for grievances, the policy appeared to be limited to meeting employees individually. The judge fur- ther reasoned that Hoover refused to meet with the group and that the Respondent never otherwise stated that it would do so even though the grievance was collective in nature. Our examination of the record reveals conflicting evi- dence with respect to whether the Respondent’s actions during the work stoppage amounted to a blanket refusal to engage with employees regarding their group wage griev- ance or whether, as the Respondent claims, Hoover of- fered to meet with employees individually but not as a group.10 Because the judge did not make a factual finding on this issue, we shall, for purposes of deciding this case, assume that the Respondent informed employees that Hoover would not meet with them as a group, but would meet with them on an individual basis. The question re- mains, however, whether Hoover’s offer to meet (only) in- dividually with members of the group gave the employees an adequate opportunity to present their group wage griev- ances under Quietflex factor 4. pandemic, the Respondent permitted employees to eat lunch in the show- room and in their cars, among other places. And there is no evidence that the protestors occupied the cafeteria by force or resisted efforts to remove them by force. See Los Angeles Airport Hilton Hotel & Towers, 360 NLRB at 1080–1081, 1083–1084 (factor 9 favored protection not- withstanding that protesting employees remained in the cafeteria after being requested to return to work or go home). 9 With respect to factor 10 (the reason for which the employees were discharged), we find without merit the Respondent’s contention that the judge ignored the possibility that the Respondent terminated the protes- tors for other reasons, such as their refusal to leave the cafeteria. Signif- icantly, the Respondent’s discharge letters provided only one reason for the discharge: “your employment . . . is being terminated, effective Au- gust 3, 2020 for violation of refusal to return to work.” In addition, the Respondent’s own official, HR Business Partner Lauck, testified that the employees were not fired for remaining in the cafeteria for as long as they did, but rather because they refused to go back to work. She also testified that the employees were not fired for trespassing, and that the employees were not trespassing until they were discharged. 10 Production Manager Michael Kelly testified that, in a visit to the cafeteria prior to informing employees that the Respondent had decided to fire them, Hoover and Lauck had separately told the protestors that they were unwilling to meet with the employees as a group but were willing to meet with them individually about their wages. On the other hand, the protestors testified that Hoover never spoke to them about their grievance before firing them, and they did not corroborate Kelly’s claim that Lauck offered to meet with them on an individual basis. And neither Lauck nor Respondent witness Geury Hernandez corroborated Kelly’s testimony about the supposed offers to meet with employees individually about their wages. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 In Wal-Mart Stores, Inc., the Board found that an 88- minute on-site work stoppage retained the protection of the Act notwithstanding that the employees had remained on the property after the employer offered to meet with them individually about their concerns. 364 NLRB 1729, 1730, 1733–1735 (2016). There, the Board reasoned that, to the extent factor 4 weighed against protection because of the employer’s offer to meet individually with the pro- testors, the factor was entitled to “less weight” because the employer had rejected the protestors’ demand for a group meeting, where the employees could mutually aid and support one another. Id. at 1730, 1733–1734. In these circumstances, the Board found that factor 4 was “equiv- ocal.” Id. at 1734. The reasoning of Wal-Mart Stores is instructive here. Employees have a Section 7 right to band together for 11 The Respondent points to evidence that some employees had an opportunity in July, prior to the work stoppage, to raise their wage con- cerns with Hoover and received an answer (albeit not the answer they wanted), when Hoover told them that they would not be getting a raise. Our dissenting colleague declares that these exchanges provided employ- ees “more than an adequate opportunity to present their wage complaint to management.” We disagree. We find that they do not warrant a find- ing that the employees had an adequate opportunity to present their griev- ances, and thus, we do not find that factor 4 weighs against protection. The earlier encounters were limited interchanges, involved fewer em- ployees, and did not involve even a threat of concerted action. When Beato approached Hoover in his office in mid-July, he was told that Hoo- ver would have to consult with his superiors on the request for more pay. No response was forthcoming until a couple of weeks later, when Beato saw Hoover walking through the plant and in the presence of other em- ployees asked Hoover about the request. Hoover replied that there was no money for a raise. The employees’ insufficient opportunity to raise their wage concerns continued on August 3, when the Respondent re- fused to meet with them as a group and did not offer to accommodate any of the group’s concerns. Indeed, the Respondent’s first response to the employees’ request to speak to Hoover about their pay that day was to unlawfully threaten to fire them. There was, therefore, no adequate opportunity for the employees to discuss their complaints with the Re- spondent as a group. Cf. Quietflex, 344 NLRB at 1055 (employees had an adequate opportunity to present their complaints where the employer responded to the employees by granting one of their demands, announc- ing that “other issues they had raised were open for discussion,” and of- fering to meet with “delegates of the group” or with employees by shift). And, of course, the Board has previously found, with court approval, that in-plant work stoppages were protected notwithstanding that the employ- ees had previously complained to management without success about the very issues that prompted the work stoppage. See, e.g., Amglo Kemlite Laboratories, Inc., 360 NLRB 319, 322 (2014) (employees engaged in protected work stoppage to pressure their employer to grant them a wage increase after their previous requests for wage increases had gone unan- swered), enfd. 833 F.3d 824 (7th Cir. 2016); see also, e.g., Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355, 1357, 1359 (8th Cir. 1989) (em- ployees engaged in a protected work stoppage in support of their work- related complaints when “other methods of communication had proven futile”). We disagree with our colleague’s claim that the instant case is “readily distinguishable” from Amglo Kemlite Laboratories and Rose- ville Dodge because Hoover “had responded” to the wage claim. In those mutual aid and protection. And here, the employees did just that: they walked off the job together to protest the Respondent’s decision to grant the long-term employees a much smaller hourly raise than the $2 hourly raise granted to new hires. While an offer to meet with the employees on an individual basis is not a blanket refusal to engage with employees in all respects, it does not accommodate the employees’ Section 7 right to join together for the pur- pose of mutual aid and protection. Here, the employees sought to meet with Hoover as a group to discuss their wage grievances, and the Respondent offered them no rea- son why it would not do so.11 Accordingly, as in Wal- Mart, the Respondent’s offer to meet with the protestors only on an individual basis warrants a finding that factor 4 neither supports nor detracts from protection.12 cases, as here, the employees’ earlier complaints had failed to yield re- sults. See City Dodge Center, 289 NLRB 194, 195 (1988) (mechanics declined service coordinator’s suggestion to put their grievances in writ- ing for him to take to employer’s president “on the ground that this had previously been tried and failed to bring results.”) (emphasis added), enfd. sub nom. Roseville Dodge, Inc. v. NLRB, 882 F.2d at 1357; Amglo Kemlite Laboratories, 360 NLRB at 319–320, 329 (noting both that the employees engaged in the in-plant work stoppage “to protest the [em- ployer’s] failure to grant them a wage increase for several years” and that several employees had complained to the employer’s president and chief operating officer as well as the plant manager about the lack of any wage increases before the date of the work stoppage) (emphasis added). Nor, contrary to the suggestion of our colleague, does the proximity of the work stoppage to Hoover’s rejection of some employees’ request for a wage increase meaningfully distinguish Amglo Kemlite or Roseville Dodge, or demonstrate that the protestors had an adequate opportunity to present their wage grievances to management before the work stoppage. Further, we find that even if factor 4 weighed slightly against protection, it would not outweigh the other factors weighing in favor of continued protection. Member Prouty notes that, in an appropriate future case, he would be open to considering whether, even where (unlike here) employees had on earlier occasions been able to adequately present their grievances to management, this consideration would not weigh against continued Sec. 7 activity in the form of a subsequent in-plant work stoppage. In Mem- ber Prouty’s view, an employer should not be able to limit or extinguish employees’ otherwise protected Sec. 7 right to engage in an in-plant work stoppage, simply because it said no to a previous employee demand on the same subject. 12 In Waco, Inc., 273 NLRB 746 (1984), the Board found that an em- ployer did not violate the Act by discharging employees who engaged in an in-plant work stoppage, in part, because the employees had remained in the lunchroom more than 2.5 hours after a manager had told them that he would meet with them individually in his office if they returned to work. 273 NLRB 746, 746–747, 751 (1984). As discussed further be- low, Waco is distinguishable on its own terms: in Waco, the employer “offered to meet with the [employees engaged in the in-plant work stop- page] . . . one-on-one or with one of more spokespersons ‘to discuss whatever problems that they might have.’” Id. at 746 fn. 1, 751. Ac- cordingly, the employer in Waco was more accommodating of the em- ployees’ Sec. 7 rights during the work stoppage than the Respondent, which made no offer to meet with one or more spokespersons of the SERTA SIMMONS BEDDING 5 Factor 6 (the duration of the work stoppage): The judge found that this factor favors loss of protection be- cause the work stoppage lasted about 150 minutes (from 9 a.m. to 11:30 a.m.), exceeding the duration of the 88-mi- nute protest found protected in Wal-Mart Stores, supra. On exception, the General Counsel claims that the em- ployees were terminated at 11:00 a.m., and with that shorter duration the Board should find that this factor fa- vors protection.13 We find that factor 6 weighs in favor of protection even assuming that the Respondent did not fire the employees until 11:30 a.m. The 150-minute work stoppage is similar in duration to work stoppages the Board has found pro- tected. See, e.g., Amglo Kemlite Laboratories, 360 NLRB at 322 (work stoppage remained protected for at least the “limited period of time (approximately 2 hours)” that the employees met with officials in the assembly area); Rose- ville Dodge, Inc. v. NLRB, 882 F.2d at 1359 (peaceful in- plant work stoppage lasting “a limited period of time— two to three hours—on the company’s premises” to pres- sure president to meet with employees regarding their grievances was protected); Pepsi-Cola Bottling Co. of Mi- ami, Inc., 186 NLRB 477, 478 (1970) (sit-down strike last- ing “only a few hours” remained protected), enfd. 449 F.2d 824 (5th Cir. 1971). Moreover, in considering the duration here, we are mindful that, at the beginning of the work stoppage, Lauck unlawfully told employees to “go back to work or you are fired,” and that agreeing to meet with employees only on an individual basis does not fully accommodate employees’ Section 7 right to present their grievance on a group basis. In these circumstances, the group. Moreover, the Board’s decision in Waco predated Quietflex, where the Board set forth the 10-factor balancing test to be applied in cases involving on-site work stoppages. It also predated Wal-Mart, where the Board recognized that an employer’s offer to meet individually with protestors is a factor entitled to “less weight” because—as here— the employer had rejected the protestors’ demand for a group meeting. We agree with the Wal-Mart Board’s view that the offer to meet individ- ually is entitled to less weight and supports our finding that factor 4 nei- ther supports nor detracts from protection. 13 Lauck admitted that she did not contact the police until after the employees were discharged. Yet, as the General Counsel notes, the state police report lists the time of the incident as “1100” [sic], which would suggest that the employees were discharged by 11 a.m. The General Counsel also notes that a handful of employees returned to work when Hoover announced that the Respondent had decided to fire the protestors but that they would be given one last chance to return to work, and that the Respondent’s “Time Detail” records exhibit appears to indicate that they clocked back in/returned to work between 11 a.m. and 11:02 a.m., suggesting that the discharge announcement had occurred by 11 a.m. No party called the police officer as a witness. The judge failed to reference the conflicting evidence in his decision, let alone resolve the conflict. 14 Waco is also distinguishable. There, the work stoppage lasted at least 3.5 hours. Here, it lasted, at most, 2.5 hours. We further observe employees were entitled to persist for a reasonable period of time in their effort to meet as a group with Hoover to resolve their wage protest.14 For all these reasons, we find, contrary to the judge, that factor 6 weighs in favor of protection.15 Factor 7 (whether employees were represented or had an established grievance procedure): The judge found that this factor favors loss of protection because, although the employees were unrepresented, the employees had access to an in-house grievance procedure. On exception, the General Counsel contends that the Respondent did not have a grievance procedure that allowed for the presenta- tion of group grievances. We find merit to the General Counsel’s exception. The Respondent does not assert that it has a grievance policy. Instead, it maintains that it has an open-door policy allow- ing employees to raise concerns to management but that it will only meet with employees individually to discuss wage concerns. Indeed, HR Business Partner Lauck testi- fied that she would “always say that I will not discuss em- ployees' wages with another employee or in a group.” In Wal-Mart-Stores, supra, the Board found that factor 7 favored protection in similar circumstances, as the open- door policy at issue in that case “allowed only for individ- ual meetings with the [employer] and provided no forum for hearing group complaints.” 364 NLRB at 1734. The Board thus explained that “[t]he ability of employees to address their complaints collectively, where they can mu- tually aid and support one another, provides a distinctly more effective way for them to engage with management” than if employees are permitted to deal with management that, a mere 10 minutes after the employees’ protest began, when em- ployees were still in the hallway and had not yet even gathered in the cafeteria, Lauck unlawfully threatened to fire them if they did not imme- diately return to work. The Respondent’s near immediate unlawful re- sponse to the employees’ protest further undermines any time-based jus- tification for the discharges. Thus, the “ample time to consider the Re- spondent’s demand that they choose between working and carrying on their protest off the Respondent’s premises,” relied upon by the Board in Waco (supra at 746), was, in the instant case, quickly tainted with an illegal threat of discharge that compromised the employees’ “time to consider the Respondent’s demand” that they return to work. 15 Our colleague contends that the fact that Hoover rejected certain employees’ request for a wage increase only days before the work stop- page means that the reasonable (and thus protected) duration of the work stoppage was shorter than it would have been in the absence of a recent response. We do not agree. We have already determined that the pro- testors did not have an adequate opportunity to raise their wage com- plaints prior to the work stoppage. Given that, the recency of the Re- spondent’s rejection of the wage increase does not weigh against the rea- sonableness of the work stoppage or shorten the period of time that it remained protected. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 only on an individual basis. Id. Accordingly, the Board concluded there that factor 7 “favor[ed] protection [be- cause . . . ] the employees were unrepresented for collec- tive bargaining purposes and enjoyed no procedure for group grievances.” Id. We reach the same conclusion here.16 In short, the overall case for finding the work stoppage protected is even stronger than that found by the judge. D. We have addressed certain arguments made by our dis- senting colleague already. Here we address our col- league’s complaint that, having considered each of the Quietflex factors, we have somehow erred by “mechani- cally apply[ing]” them. While we agree that the 10-factor Quietflex test is not to be applied mechanically, under the extant precedent that all parties agree governs this case, we are not at liberty to simply ignore many of the factors that are relevant to determining whether the employees’ work stoppage retained the protection of the Act at the time the employees were fired. Yet that is precisely what the dissent has done by ad- dressing only “the factors that, in [his] view, are relevant here.” While our colleague expressly concedes that the reason for the work stoppage was protected and that it was peaceful (factors 1 and 2), he does not even mention, let alone analyze, many of the other Quietflex factors. In- deed, the dissent does not articulate any substantive chal- lenge to our affirmance of the judge’s findings that Quiet- flex factors 5, 8, 9, and 10 favor protection for the in-plant work stoppage. And, as discussed previously, the reasons our colleague offers for disagreeing with our conclusion that factor 3 (interference with production and access to property) favors protection are simply inconsistent with undisputed record evidence. As for factor 7 (representa- tion or established grievance procedure), our colleague does not dispute that the protestors were unrepresented and acknowledges, as he must, that the Respondent had no established procedure allowing for the presentation of group wage grievances. Thus, under well-settled law, this factor, too, favors protection. Our colleague also expressly concedes, as he must, that the work stoppage was protected at its inception, notwith- standing that certain employees had complained about the 16 The Respondent nevertheless asserts that notwithstanding that it maintains a policy of only meeting with employees individually to dis- cuss wage concerns, the employees were in fact able to present their grievances to Hoover on August 3. Contrary to the Respondent’s con- tention, there is no evidence that the employees were able to present their group wage concerns to Hoover (or any other company official) on Au- gust 3 or that Hoover notified the employees that the Respondent would lack of an additional wage increase prior to the work stop- page. Nevertheless, he contends, citing the Board’s deci- sions in Cambro Mfg. Co., 312 NLRB 634 (1993), and Waco, Inc., above, that the work stoppage lost the protec- tion of the Act by the time the employees were fired be- cause the employees remained in the cafeteria some 2 hours after they were asked to leave. However, it is well settled that “[a]n employer cannot convert a protected in- plant work stoppage into an unpro- tected trespass by the simple expedient of ordering his em- ployees from the plant where, as here, such an order serves no immediate employer interest and unduly restricts the employees’ right to present grievances to their employer.” NLRB v. Pepsi-Cola Bottling Co., 449 F.2d 824, 829 (5th Cir. 1971). In analyzing whether, and for how long, on- site work stoppages retain protection, the Board gives great weight to employees’ basic Section 7 right to secure an audience with their employer. In both Cambro and Waco, the employees persisted in remaining on the prop- erty long after being offered the opportunity to present their grievances on a concerted basis to their employer, and in those circumstances permitting the employees to remain on the property for a substantially longer period time served no immediate employee interest. In Cambro, a pre-Quietflex case, the Board concluded that the employees “were entitled to persist in their in- plant protest for a reasonable period of time” even though they had previously presented their complaints to the very individual (Plant Manager Thompson) they were demand- ing to meet with during the work stoppage. 312 NLRB at 634, 636. Nevertheless, the Board concluded that the work stoppage, which began between 2:30 a.m. and 3:00 a.m., had lost the protection of the Act by the time the em- ployees were suspended at about 6 a.m. See Quietflex, 344 NLRB at 1057 (discussing Cambro). In so conclud- ing, the Board stressed that the employees engaged in the work stoppage were expressly told that their desired inter- locutor, who was not at the plant during the late-night work stoppage, would meet with them at 7:30 a.m. that very morning, and that the employees should therefore re- turn to work or, alternatively, clock out, leave the prem- ises, and return for the desired meeting at 7:30 a.m. See Cambro, 312 NLRB at 634, 635, 636.17 meet with them as a group about their group concerns. Indeed, Kelly testified that Hoover told the employees, “You know, I can meet with individuals. I cannot meet as a group. We can talk about your wages and we can go from there, but we cannot do anything with a group.” 17 The protestors declined to return to work until they had talked to either Thompson or the owner, an elderly, infirm man who did not drive and was not at the plant during the late-night work stoppage. Id. at 634. SERTA SIMMONS BEDDING 7 The Board reasoned that permitting the employees to remain on the property served no immediate protected em- ployee interests because the employees had an opportunity to protest and had been promised an opportunity to present their grievances as a group to the person with whom they requested to speak, within just a few hours “in accord with past practice under the[ir employer’s] open-door policy.” Id. at 636. The Board also noted that a group of employees had previously resolved complaints successfully by meet- ing directly with Plant Manager Thompson, demonstrat- ing that the offer to meet with Thompson constituted a meaningful mechanism for addressing the protestors’ complaints. Id. at 634, 636. The Board thus concluded that the directive to return to work or leave the plant and return later for the meeting served the employer’s interest in maintaining its established grievance procedure and placed no undue restriction on the employees’ right to pre- sent grievances within a few hours pursuant to that proce- dure. Id. at 636. Here, by contrast, the employees’ desired interlocutor (Hoover) refused to meet with the employees as a group during the work stoppage, even though he was present at the facility both at the outset of the work stoppage and when they were fired.18 Additionally, the Respondent never promised the employees an opportunity to meet with Hoover—or any other company official—as a group or with representatives of the group. Accordingly, unlike Cambro, the employees’ lunchroom protest continued to serve an immediate employee interest, and the Respondent did not act in furtherance of maintaining an established grievance procedure. Waco, another pre-Quietflex case, is also distinguisha- ble. As discussed above, in that case, the infringement on the employer’s property rights was greater, as the work stoppage at issue there lasted an hour longer than the in- stant case (3.5 hours to 2.5 hours). Further, the employer was more accommodating of the employees’ Section 7 rights during the work stoppage because it offered to meet with “one or more spokespersons” of the group “to discuss whatever problems that they might have.” 273 NLRB at 746 & fn. 1, 747 fn. 3, 751. Here, by contrast, Hoover refused to meet with the employees as a group or with rep- resentatives of the group. 18 The record shows that Hoover went home to eat lunch before he returned to the facility prior to the end of the work stoppage. 19 The employer repeatedly offered to meet with delegates of the group or with all of them by shift. See id. at 1055, 1059. As mentioned, Hoover refused to meet with the employees as a group or with represent- atives of the group. In addition to our finding that Cambro and Waco are distinguishable, we note that the distinguishing facts con- sidered in Quietflex are instructive here. Specifically, in concluding the employer’s property rights outweighed the employees’ Section 7 rights when the employees were fired, the Quietflex Board stressed that the length of the on-site work stoppage—some 12 hours—was unreasona- ble, particularly in view of the employer’s attempts to re- spond to the employees’ work-related concerns on a con- certed basis. 344 NLRB at 1059. Thus, although as the dissent notes, the employer there did not have an estab- lished grievance procedure for handling group grievances, it had provided the protestors multiple opportunities dur- ing the work stoppage to present their complaints to man- agement on a concerted basis.19 Additionally, the 12-hour work stoppage “far exceeded the limited duration of [in- plant] work stoppages protected by the Board.” Id. at 1058. In short, the protestors in Quietflex were afforded a far greater opportunity to present their complaints con- cerning their terms and conditions of employment on a concerted basis, and the employer’s ultimatum to employ- ees—to leave the premises by 7 p.m. or face discharge (which was incorrectly translated to employees by a Span- ish-speaking supervisor to mean they had to leave the premises by 7 p.m. or the police would be called)—and the subsequent discharges of the employees occurred only after an unusually lengthy period.20 Moreover, unlike in Quietflex, the Respondent here expressly fired the em- ployees for refusing to return to work rather than for re- fusing to leave the property. For all these reasons, we find without merit our col- league’s suggestion that we have misapplied relevant precedent in concluding that the employees’ Section 7 rights outweigh the Respondent’s property rights. E. In sum, considering all the relevant factors in balancing the employees’ Section 7 rights against their employer’s property rights, we conclude that the employees’ in-plant work stoppage continued to enjoy the protection of the Act at the time the employees were fired. The employees’ peaceful in-plant work stoppage had a protected and core Section 7 aim of advancing the employees’ wage protest, and the employees were fired solely because they refused to return to work, and not because of any interference with 20 Id. at 1055, 1059. The first time the employer in Quietflex told employees that they had to leave the premises by 7 p.m. or face discharge (incorrectly translated to mean that they had to leave the premises by 7 p.m. or the police would be called) was more than 11 hours after the employees began their protest. Id. at 1055, 1064. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 the Respondent’s property rights. Indeed, the employees, who were unrepresented with no access to an established grievance procedure for handling group wage grievances, were never warned that they would be fired if they did not leave the premises. Instead, as the judge found, they were threatened with discharge if they refused to return to work. And the in-plant work stoppage of limited duration did not spill over beyond the end of the employees’ shift, did not result in a seizure of the Respondent’s property, and did not interfere with production to any greater extent than had the employees simply left the plant and protested outside on public property. Those factors, taken together, sub- stantially outweigh the significance of the Respondent’s (purported) offer to meet with the employees on an indi- vidual basis and certain employees’ prior unsuccessful in- quiries about a wage increase. Like the Wal-Mart Stores Board majority, we conclude that an offer to meet with employees on an individual basis about their group con- cerns is not sufficient to tip the balance against the em- ployees’ right to conduct a work stoppage on company property for a reasonable period of time, particularly when—as here—the employees conducted themselves in a manner to cause as little disruption as possible while re- maining on-site. Accordingly, we conclude that the Re- spondent violated Section 8(a)(1) of the Act by discharg- ing the 13 employees for their participation in the work stoppage. AMENDED REMEDY In addition to the remedies ordered by the judge, and in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate An- tolin Batista, Antonio Basilio, William Beato, Wilson Ber- nard, Felisberto De La Cruz, Severino Felix, Roberto Pe- rez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bol- ivar Valdiviezo, Andres Vasquez, and Maximo Veloz for any other direct or foreseeable pecuniary harms incurred as a result of their unlawful terminations, including 21 See United States Service Industries, Inc., 319 NLRB 231, 231–232 (1995) (employer’s “blatant” violations—including 10 discharges and telling employees that they could not work because they had gone out on strike and joined the union—supported a notice-reading remedy), enfd. 107 F.3d 923 (D.C. Cir. 1997) (unpublished). 22 The judge found that “about 40” of the roughly 120 workers on the first shift walked off the job on August 3. 23 See Natural Life, Inc. d/b/a Heart and Weight Institute, 366 NLRB No. 53, slip op. at 1 fn. 4 (2018) (notice-reading remedy appropriate to dispel effects of employer’s unfair labor practices, which were serious and widespread), enfd. 827 Fed. Appx. 724 (9th Cir. 2020) (un- published). 24 See North Memorial Health Care, 364 NLRB 770, 770 (2016) (in- volvement of upper management in unfair labor practices supports notice reading remedy), enfd. in part 860 F.3d 639 (8th Cir. 2017), judgment reasonable search-for-work and interim employment ex- penses, if any, regardless of whether these expenses ex- ceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we grant the General Counsel’s request for a notice-reading remedy. The unfair labor practices here were serious and widespread. The Respondent threatened all the protestors with discharge if they did not return to work and fired the 13 protestors who continued their pro- test and did not return to work. Discharges are, of course, among the most serious unfair labor practices, as they are “‘the industrial equivalent of capital punishment,’” Metz v. Transit Mix, Inc., 828 F.2d 1202, 1209 (7th Cir. 1987) (citation omitted), and telling employees that they are fired because of their protected concerted activity is a bla- tant unfair labor practice as well.21 Significantly, about one-third of the first-shift employees (approximately 40 out of 120) were threatened with discharge,22 and more than 10 percent of the first-shift employees (13 out of 120) were unlawfully discharged.23 Further, the Respondent’s serious unfair labor practices were committed by high-ranking company officials, which compounds the coercive effect of the serious unfair labor practices.24 Operations Manager Hoover, the offi- cial with the most overall authority at the facility, was the one to tell the protestors that they were fired. And he, along with Regional VP Greg Schnipke, Senior Human Resources Vice President Dana Caustinson, Chief HR Of- ficer Daniel Goldblatt, and HR Business Partner Lauck, were among the officials who took part the conference call in which it was decided that the protestors should be fired.25 In these circumstances, we find that notice reading is necessary to dissipate the lingering effects of the (containing notice reading remedy) entered by 691 Fed. Appx. 828, 831 (8th Cir. 2017). See also United Nurses Associations of California v. NLRB, 871 F.3d 767, 789 (9th Cir. 2017) (“given . . . managers’ partici- pation in the serious and widespread interference with its employees’ rights, the Board was well within its discretion to require that a manager read the order aloud so that employees will fully perceive that [the em- ployer] and its managers are bound by the requirements of the [NLRA].”) (emphasis in original) (internal quotation marks omitted). 25 We recognize that some of the participants in the conference call, including Hoover, Schnipke, and Caustinson, are no longer working for the Respondent. However, given the serious and widespread nature of the Respondent’s unlawful conduct and the Respondent’s continued in- sistence that it did nothing wrong in this matter, we believe that a notice- reading remedy is appropriate notwithstanding the departures of those participants. SERTA SIMMONS BEDDING 9 Respondent’s serious and widespread unlawful conduct and to ensure the further protection of employees’ Section 7 rights.26 As the Board has previously observed, “The public reading of the notice is an effective but moderate way to let in a warming wind of information and, more important, reassurance.” United States Service Industries, Inc., 319 NLRB at 232 (internal quotation marks and cita- tion omitted), enfd. 107 F.3d 923 (D.C. Cir. 1997); accord United Nurses Associations of California, 871 F.3d at 789. We shall modify the judge’s recommended Order in ac- cordance with our decisions in Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as mod- ified in 371 NLRB No. 25 (2021), Paragon Systems, Inc., 371 NLRB No. 104 (2022), and Thryv, supra. We shall substitute a new notice to conform to the Order as modi- fied. ORDER The National Labor Relations Board orders that the Re- spondent, Serta Simmons Bedding, LLC, Hazleton, Penn- sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees for engaging in protected concerted activities and, thereafter, informing them that they are fired because of their protected con- certed activities. (b) Discharging or otherwise discriminating against its employees for engaging in protected concerted activities. (c) Summoning the police to have employees removed from the plant for engaging in protected concerted activi- ties. (d) 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) Within 14 days from the date of this Order, offer Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez and Maximo Veloz full reinstatement to their former jobs, unless this has al- ready been done, or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their 26 Member Prouty would additionally require that a copy of the at- tached notice be distributed to each employee present at the opening of this meeting or meetings, before the notice is read aloud by management or by the Board agent. Such a requirement would facilitate employee comprehension of the notice and enhance the remedial objectives of the seniority or any other rights or privileges previously en- joyed. (b) Make Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez and Maximo Veloz whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of their unlawful termination, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (c) Compensate Antolin Batista, Antonio Basilio, Wil- liam Beato, Wilson Bernard, Felisberto De La Cruz, Sev- erino Felix, Roberto Perez, Felipe Polanco, Yanira Rodri- guez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (d) File with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful August 3, 2020, terminations, and within 3 days thereafter, notify the employees in writing in English and Spanish that this has been done and that the terminations will not be used against them in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of the Board’s order. (g) Post at its Hazleton, Pennsylvania facility the at- tached notice marked “Appendix” in English and Spanish. notice reading set forth in the Amended Remedy section of this decision. For these reasons, Member Prouty would make the distribution to em- ployees of copies of the notice at meetings where it is to be read a re- quirement in all instances where the Board orders a notice-reading rem- edy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 27 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respond- ent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to em- ployees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since August 3, 2020. (h) Hold a meeting or meetings during working hours at its facility in Hazleton, Pennsylvania, scheduled to en- sure the widest possible attendance of employees, at which time the attached notice marked “Appendix” will be read to employees in English and in Spanish by a re- sponsible management official in the presence of a Board agent or, at the Respondent’s option, by a Board agent in the presence of a responsible management official. (i) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certification of a responsible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. Dated, Washington, D.C. August 4, 2023. ______________________________________ ________________________________________ 27 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted and read within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted and read within 14 days after the fa- cility reopens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days be- fore physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electron- ically on [date].” If this Order is enforced by a judgment of a United Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting in part. Contrary to my colleagues and the judge, I would find that the Respondent lawfully discharged thirteen employ- ees who elected not to return to work after participating in an in-plant work stoppage.1 As discussed below, the em- ployees stopped work for a protected reason, to seek a wage increase. Importantly, however, several employees had raised their group wage grievance shortly before the work stoppage and had received a clear response from management. In light of this, the employees’ on-site work stoppage, lasting more than 2 hours, exceeded the bounds of what was reasonable under the circumstances. Accord- ingly, I would find that the Respondent did not violate Section 8(a)(1) by discharging the employees who refused to return to work, after the work stoppage lost the protec- tion of the Act. I. FACTUAL BACKGROUND The Respondent’s plant in Hazleton, Pennsylvania, temporarily shut down on March 19, 20202 due to the Covid-19 pandemic. After the Respondent reopened its plant in early June, it informed its employees, who were not represented by a labor organization, that it was in- creasing its starting wage for new employees from $15 per hour to $17 per hour in an effort to attract new hires. Cur- rent employees making less than that rate would receive a raise to $17 per hour. Existing employees already making at least $17 per hour would receive raises between 25 to 35 cents more per hour based on service time. Many States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 Therefore, I would also dismiss the allegations that the Respondent violated Sec. 8(a)(1) by informing employees that they were fired be- cause of their protected concerted activity and summoning police to have employees removed from the cafeteria for engaging in protected con- certed activity. I agree with my colleagues and the judge that the Re- spondent violated Sec. 8(a)(1) by threatening to fire employees for en- gaging in protected concerted activities. Further, contrary to my colleagues, I would not grant the General Counsel’s request for a notice-reading remedy. I do not believe that the extraordinary remedy of notice reading is appropriate in this case. 2 All dates are in 2020 unless otherwise noted. SERTA SIMMONS BEDDING 11 experienced employees were frustrated with these pay in- creases and believed they deserved a higher raise. In the weeks following the announcement of these wage in- creases, several of the facility’s longer-term employees discussed their frustration among themselves. Employee William Beato spoke to fifty or more of his coworkers about these wage concerns. Around mid-July, a group of these employees decided to address the matter with Oper- ations Manager Charles Hoover. The employees chose Beato to represent them because he spoke English. Beato, accompanied by two coworkers who waited outside Hoo- ver’s door, informed Hoover that the employees were up- set with the raises they had received. Beato asked Hoover for a wage increase for himself and his colleagues, and Hoover responded that he was going to try to get the em- ployees an increase but needed to speak to corporate first. After speaking with Hoover, Beato also asked Area Con- troller Julie Moakley if she could provide employees with a raise. She responded that the Respondent could not af- ford additional raises. Following both his meeting with Hoover and his discus- sion with Moakley, Beato spoke with his coworkers, and they decided to give Hoover 2 weeks to respond to their concern regarding the amount of their raises. After the two weeks had passed, and the employees had not heard back from Hoover, Beato, along with a group of approxi- mately fifteen employees, approached Hoover. When asked whether the more tenured employees would be get- ting a raise, Hoover responded that there was no money for further raises. At that point, Beato and some of his coworkers decided to approach Hoover a third time to raise the issue of a wage increase. On August 3, around 9:00 a.m., a group of about forty employees, including Beato, ceased working and gathered in a hallway by the entrance to the facility’s main office. Hoover, who was on a conference call, did not come out into the hallway. The judge found that HR Business Partner Sharon Lauck entered the hallway and informed the gathered employees either to “go back to 3 In finding that Lauck made this statement, the judge credited the testimony of employee Yanira Rodriguez over the testimony of Lauck, who stated that she told the gathered employees that they “need[ed] to clock out and go home or go back to work.” In support of this credibility determination, the judge explained that “Rodriguez was an open and be- lievable witness. It is also plausible that the group would not have dis- persed in the way that it did, in the absence of a threat.” With all due respect to the judge, it is equally plausible that employees would choose to go back to work rather than clock out and forego further pay for that day, and the General Counsel bears the burden in establishing by a pre- ponderance of the evidence that Lauck made a threat in violation of Sec. 8(a)(1). In any event, even if I might have reached a different conclusion work or you are fired.”3 About half the group returned to work. The remaining employees moved to the cafeteria to wait for Hoover. Shortly after the remaining employees moved to the caf- eteria, Lauck informed them that they had been punched out and should go home. Most of the employees, however, stayed in the cafeteria, demanding to speak with Hoover about the raise issue. At some point, first-shift employees began taking their lunch shifts. As a result of the presence of the employees waiting to speak to Hoover, however, there was not enough space in the cafeteria for those em- ployees to eat there. Accordingly, some employees ate their lunches in the showroom, while others ate their lunches in their cars or outside. Around 11 or 11:30 a.m., Hoover went to the cafeteria and informed the remaining employees that they had one last opportunity to return to work, otherwise they would be fired. Some of the employees then returned to work. Thereafter, the thirteen employees who did not return to work were terminated.4 II. ANALYSIS The Board has held that, although on-site work stop- pages can be a form of economic pressure that is protected under Section 7 of the Act, not all work stoppages are pro- tected because at some point in an on-site work stoppage “an employer is entitled to assert its private property rights and demand its premises back.” Cambro Mfg. Co., 312 NLRB 634, 635 (1993). Similarly, the Board has recog- nized an employer's right to “protect [its] private property and legitimate business interests from undue interference by employees.” Los Angeles Airport Hilton Hotel & Tow- ers, 360 NLRB 1080, 1083 (2014), enfd. 789 F.3d 154 (D.C. Cir. 2015) (citing NLRB v. Fasteel Metallurgical Corp., 306 U.S. 240, 256 (1939)). The determination whether an on-site work stoppage loses its protection var- ies from case to case depending on an assessment of the competing employee and employer interests. See Quiet- flex Mfg. Co., 344 NLRB 1055, 1059 (2005).5 regarding the evidence, I will defer to the judge’s credibility determina- tion to the extent that he seems to rely on the demeanor of Rodriguez during her testimony. For that reason, I join my colleagues in affirming the judge’s finding that the Respondent violated Sec. 8(a)(1) by threat- ening to fire employees for engaging in protected concerted activities. 4 Because the judge found that the work stoppage lasted from 9 to 11:30 a.m., it seems safe to assume that the terminations took place around 11:30 a.m. 5 Unlike my colleagues, I do not believe that the Board must mechan- ically apply the 10 factors listed in Quietflex, and I have not done so here. See Atlantic Scaffolding, 356 NLRB 835, 837 (2011); Noah's Ark Pro- cessors, LLC d/b/a WR Reserve, 370 NLRB No. 74, slip op. at 2 (2021). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 In balancing these interests, the Board has long held that a work stoppage loses the protection of the Act where the employees have occupied their employer's property in the face of the employer's order to leave and, thereby, de- prived the employer of the use of its property for an un- reasonable period of time. See Cambro Mfg., 312 NLRB at 636–637. In Cambro Mfg., the Board found that alt- hough an in-plant work stoppage was protected when it began, it ultimately lost the protection of the Act. 312 NLRB at 635–636. The Board acknowledged that the on- site work stoppage was peaceful, centered on job-related complaints, and nondisruptive. The Board further ob- served that the employees had raised their concerns to the general manager and a supervisor, although these con- cerns were left unaddressed by the Respondent. Id. at 636. During the work stoppage, the employer’s supervisor twice asked the protesters to return to work or leave the plant, the second of which occurred about two hours into the work stoppage. And along with the second request, the supervisor promised the protesters that they could meet with the general manager pursuant to the employer’s open-door policy when he reported for work in just a few hours. Id. Nonetheless, several protesters persisted in the work stoppage, and the employer ultimately terminated them. Based on all of the facts, the Board reasoned that when the protesters, who had already raised their concerns with a supervisor, disregarded the employer's second order either to return to work or to leave the plant, they forfeited the Act’s protection. Similarly, in Waco, Inc., 273 NLRB 746, 746 (1984), the Board concluded that a work stoppage had "over- stepped the boundary of a protected, spontaneous work stoppage” and that therefore the employees involved “were occupying the facility in a manner [that] was unpro- tected.” In Waco, the employees had remained in the lunchroom for at least three and a half hours after they had been informed by their manager that he would not meet with all of them as a group and been instructed either to return to work (in which case the manager would meet with them individually) or punch out and leave the em- ployer's premises. The Board observed that the employer had not abruptly decided to discharge the employees and, further, that the employees had ample time to think about the employer's demand that they choose between returning 6 Cf. Los Angeles Airport Hilton Hotel & Towers, 360 NLRB at 1086 (finding employees’ work stoppage protected where, among other things, the employer “never considered or responded to [its employees’] griev- ance”). 7 Cf. City Dodge Center, Inc., 289 NLRB 194, 198 fn. 2 (1988), enfd. sub nom. Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355 (8th Cir. 1989) (finding work stoppage protected where, among other things, employees to work or continuing their work stoppage off the employ- er's premises. Based on the above precedent, I find that the employ- ees’ work stoppage in the cafeteria was protected at its in- ception but that it reached a point at which it was no longer a protected means of protest. As for the first point, I agree with my colleagues that the judge properly found that the employees stopped work for a protected reason: to seek a wage increase. Further, I agree with my colleagues and the judge that the work stoppage was peaceful. However, unlike my colleagues, I would find that the initially lawful work stoppage ultimately lost the protec- tion of the Act. Beato, on behalf of his coworkers, had twice previously raised the group concern about the small amount that the existing employees were receiving as compared with new employees with Hoover. On the first occasion, Hoover responded that he would address the is- sue by raising it with his corporate superiors; on the sec- ond occasion, Hoover informed a group of approximately 15 employees, including Beato, that the Respondent could not afford to give employees a raise. Further, Beato had also raised the issue with Area Controller Julie Moakley, and she too responded that the Respondent could not af- ford to provide existing employees with a larger raise. Therefore, in my view, the employees had clearly commu- nicated their wage complaint to Hoover, as well as Moak- ley, and had received an unequivocal answer prior to the work stoppage.6 I believe that the employees had a Sec- tion 7 right to continue to further press their wage concern by engaging in a work stoppage and demanding to speak again with Hoover for a reasonable period of time, but there came “a point at which the Respondent was entitled to reclaim the use of its entire premises.” Cambro Mfg., 312 NLRB at 636; see also Waco, 273 NLRB at 746-747. In this respect, the record demonstrates that shortly after the protesters went to the cafeteria, the Respondent in- formed them that they were punched out and should leave the premises. The Respondent allowed the protesters to remain in the cafeteria for two and a half hours before giv- ing them a “last chance” warning.7 By that point, “[f]ur- ther in-plant refusals to work served no immediate pro- tected employee interests and unduly interfered with the [Respondent]’s right to control the use of its premises.” Cambro Mfg., 312 NLRB at 636. Accordingly, by the left peacefully after the company president told them that if they did not return to work or leave the premises, they would face termination). As stated above, some of the first shift workers had to eat lunch in the Respondent’s customer showroom, among other places, because the work stoppage prevented them from using the cafeteria. This emphasizes the fact that the work stoppage interfered with the Respondent’s ability to use its property as intended. SERTA SIMMONS BEDDING 13 time the thirteen employees were discharged around 11:30 a.m., they “were occupying the facility in a manner which was unprotected.” Waco, 273 NLRB at 746.8 My colleagues emphasize that the employees did not have an opportunity to present their grievance as a group during the work stoppage, observing that Hoover did not explain why he would not meet with the employees as a group in the cafeteria. They note that Hoover was present at the facility both at the start of the work stoppage and when the employees were fired, and therefore the Re- spondent should have promised employees a meeting with Hoover or any other management official. My colleagues argue that this case is distinguishable from Cambro Mfg., Waco, and Quietflex, because the employees in those cases were either given an opportunity to raise their concerns with their employer during the work stoppage or told that they would be given the opportunity to do so at a later time. But here, Hoover had informed a sizeable group of employees that the Respondent could not give them a larger wage due to a lack of funds immediately prior to the work stoppage.9 In my view, Hoover had no further duty to address, a second time, the employees’ group concern over their wages.10 All that was required, consistent with the Act, was to allow the employees to press their demands by engaging in an on-site work stoppage for a reasonable 8 My colleagues argue that Waco is distinguishable because in that case the work stoppage was an hour longer than here, and therefore, there was a greater “infringement on the employer’s property rights.” They further contend that in Waco, unlike here, the employer was willing to meet with the employees on an individual basis or “with one of more spokespersons” during the employees’ work stoppage and, therefore, the employer better accommodated the employees’ Sec. 7 rights than did the Respondent. But in Waco, unlike here, the employer had not already addressed the employees’ group concerns prior to the work stoppage. Therefore, I think that the point at which the work stoppage became un- reasonable was even shorter here. Moreover, my colleagues argue that Waco is distinguishable based on the Respondent’s unlawful threat to fire the employees if they did not return to work at the outset of the work stoppage. The majority claims that this threat undermined the employees “time to consider the Respondent’s demand” that they go back to work. Although I recognize the Respondent’s threat in this respect, I would not find that this threat interfered with the employees’ protest. As set forth above, following this threat, the Respondent permitted the employees to engage in a work stoppage for a reasonable period of time before the Respondent rightfully reclaimed the use of its cafeteria. My colleagues also try to diminish Waco by noting that it was decided prior to Quietflex and Wal-Mart Stores. This statement is true as far as it goes. But it overlooks the critical facts that Quietflex expressly relied on Waco and that Wal-Mart Stores did not question the holding in Waco, let alone overrule it. 9 Although not determinative to my analysis, I note that the employees involved in the work stoppage were not requesting an audience with an- yone in management who had the authority to grant their request nor with anyone in management who had not previously addressed their concern. period of time. And that is precisely what the Respondent did.11 The majority attempts to minimize the employees’ dis- cussions of their wage concern with the Respondent shortly before the work stoppage and the Respondent’s ef- forts to remedy those concerns. My colleagues conclude that the employees’ prior interactions with Hoover were different because they involved fewer employees. Yet, the record clearly shows that numerous employees discussed their concern that the Respondent had given smaller wage increases to the current employees prior to the work stop- page and that the employees had chosen Beato to represent them in raising the issue with Hoover. Further, when Hoo- ver did not follow up with Beato regarding the issue, a group of fifteen employees, with Beato as the group’s spokesman, met with Hoover again. More significantly, the work-stoppage in the cafeteria stemmed from this same concern, i.e., employees’ dissatisfaction with the Re- spondent’s decision to grant the long-term employees a smaller hourly raise than the raise granted to new hires. The employees who had not previously met with Hoover shared this same concern. Accordingly, the work stop- page in the cafeteria was clearly a continuation of the same earlier concerted activity. Cf. Rogers Environmental Con- tracting, Inc., 325 NLRB 144, 145 (1997) (finding that the complaints of two employees relate back to the earlier 10 Accordingly, I disagree with my colleagues’ claim that the protes- tors in Quietflex were given a greater chance to address their complaints on a group basis because the protesters were able to present their com- plaints during the work stoppage. Here, the Respondent addressed the employees’ group wage complaint on three separate occasions shortly before the work stoppage. 11 Because I would find that the Respondent sufficiently addressed the employees’ wage grievance prior to the work stoppage, unlike my col- leagues, I believe it is unnecessary to address the conflicting evidence concerning whether the Respondent, during the work stoppage, informed employees that Hoover and/or Lauck was willing to meet with them in- dividually about their wages. But even assuming, arguendo, that there was credited evidence that the Respondent offered to meet with employ- ees on an individual basis, this provides further support for finding that the work stoppage lost the protection of the Act. My colleagues rely on Wal-Mart Stores, Inc., 364 NLRB 1729 (2016), as support for finding that the factor whether employees had an adequate opportunity to present their grievances to management is neutral. Wal- Mart Stores is distinguishable. First, the employees in Wal-Mart Stores had not received a response to the complaints they had raised in writing to management prior to their work stoppage. Id. at 1732. Here, of course, they had. Second, in Wal-Mart Stores, the employer never warned the employees during the work stoppage that they would be dis- ciplined for failing to leave the store. Id. In this case, after allowing the protesters to remain in the cafeteria for two and a half hours, the Re- spondent clearly warned them that they had one last opportunity to return to work. Finally, in Wal-Mart Stores, the Board pointed to the short du- ration of the work stoppage, noting that it lasted for less than an hour and a half. The work stoppage was longer in this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 group protests “concerning the same subject”). The ma- jority further argues that employees’ earlier discussions of their wage concern with the Respondent shortly before the work stoppage did not involve a threat of concerted action. It is not clear to me, however, how the absence of a threat of work stoppage has any relevance as to whether employ- ees had an adequate opportunity to present their wage complaint as a group to management.12 In sum, I would find that after the Respondent warned the employees a second time that they had one more op- portunity to return to work, it was entitled to assert its pri- vate property right, particularly in light of the fact that the employees had more than an adequate opportunity to pre- sent their wage complaint to management prior to their work stoppage. Accordingly, under these circumstances, I would find that the discharge of the 13 employees was not unlawful. Dated, Washington, D.C. August 4, 2023. ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD 12 Citing Amglo Kemlite Laboratories, Inc., 360 NLRB 319, 322 (2014), enfd. 833 F.3d 824 (7th Cir. 2016), and Roseville Dodge, 882 F.2d 1355, my colleagues note that the Board has found in-plant work stoppages to be protected even where employees had raised their griev- ances to management before the work stoppage and failed to receive re- sults. My colleagues also observe that the timing of the protected work stoppages in those two cases are comparable to the length of the work stoppage here. I believe that both cases are readily distinguishable. It is true that in Roseville Dodge, the employees had previously raised their concerns with the employer’s president, but it is unclear when this hap- pened. City Dodge Center, 289 NLRB at 195. By contrast, in this case, the employees raised their group wage grievance shortly before the work stoppage and received a clear response from management. Likewise, in Amglo Kemlite Laboratories, the employees engaged in a work stoppage to push for wage increases “after their previous requests for wage increases had gone unanswered for several years.” 360 NLRB at 322. Although the employer’s president was aware of employees’ concerns about wage increases, the president had not addressed the em- ployees about their concerns prior to the work stoppage. Id. at 329. Here, by contrast, the employees wanted to talk to the same person they had already talked to and who had already given them an answer. The fact that the Respondent had responded shortly before the work stoppage made the point at which the work stoppage became unreasonable here even shorter than in those cases. My colleagues contend that the timing An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT threaten to discharge you for collec- tively seeking a raise and, thereafter, tell you that you are fired because you collectively sought this raise. WE WILL NOT discharge or otherwise discriminate against any of you for collectively seeking a wage raise or for engaging in other protected concerted activities. WE WILL NOT call the police to have you removed from the plant because you collectively sought a wage raise or engaged in other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, of the Respondent’s response should not shorten the period of time that the work stoppage remained protected. But my colleagues fail to recog- nize that the employees had an adequate opportunity to address their wage complaint shortly before the work stoppage. Finding merit in the General Counsel’s exception, the majority also points to the fact that the Respondent lacked a procedure that permitted employees to present group grievances. My colleagues again cite to Wal- Mart Stores, reasoning that an employer’s open-door policy that only al- lows for individual meetings as opposed to group complaints favors find- ing a work stoppage protected. But even though the Respondent lacked a formal procedure for group grievances, the employees here actually presented their wage complaint to management as a group prior to the work stoppage. In addition, in Quietflex and Waco, the Board found that the employees’ work stoppages lost the Act’s protection even where the employers in those cases did not have a procedure for hearing group complaints. Accordingly, contrary to my colleagues’ assertion, I would not find that the Respondent’s lack of an established procedure for al- lowing for the presentation of group wage grievances favors protection. My colleagues say that I do not take issue with their analysis of Qui- etflex factors five, seven, eight, nine, and ten. That is not true. As in Cambro Mfg. and Waco, I have addressed the factors that, in my view, are relevant here. In both of those cases, which are still good law and were relied on in Quietflex, the Board did not address each of the ten factors set forth in Quietflex. SERTA SIMMONS BEDDING 15 Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. WE WILL make Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz whole for any loss of earn- ings and other benefits resulting from their unlawful ter- mination, less any net interim earnings, plus interest, and WE WILL also make such employees whole for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful termination, including reason- able search-for-work and interim employment ex- penses, plus interest. WE WILL compensate Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 4, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a re- port allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 4 within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s correspond- ing W-2 forms reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the un- lawful discharges of Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. 1 Unless otherwise stated, factual findings arise from joint exhibits, stipulations, and undisputed evidence. SERTA SIMMONS BEDDING, LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-266838 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Jun S. Bang, Melanie R. Bordelois, Christy Bergstresser and Nicholas Allen, Esqs., for the General Counsel. R. Andrew Santillo, Esq. (Winebrake & Santillo, LLC), for the Charging Party. Brent L. Wilson, Esq. (Elarbee, Thompson, Sapp & Wilson, LLP), for the Respondent. DECISION STATEMENT OF THE CASE ROBERT A. RINGLER, Administrative Law Judge. This hearing was held over several days in June and September 2021. The complaint alleged, inter alia, that Serta Simmons Bedding, LLC (Serta) violated §8(a)(1) by threatening employees and firing 13 workers for seeking a raise. As will be explained, the complaint is meritorious. On the record, I make the following FINDINGS OF FACT1 I. JURISDICTION Serta manufactures and distributes bedding products. Annu- ally, it sells and ships goods exceeding $50,000 from the Hazle- ton, Pennsylvania plant (the plant) directly to points outside of Pennsylvania. It, as a result, engages in commerce under §2(2), (6), and (7) of the Act. II. UNFAIR LABOR PRACTICES A. Record Evidence The plant operates from Monday to Saturday.2 It employs roughly 120 workers on the 1st shift (i.e., 6 a.m. to 5 p.m.) and 90 on the 2nd shift (i.e., 5 p.m. to 4:30 a.m.). It consists of these departments: quilting and bordering; mattress finishing; mainte- nance; box spring; coiling; receiving; and front office. About 2 Employees work overtime on Saturdays. The plant is closed on Sun- days. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 75% of the plant’s employees only speak Spanish. Serta holds new employee orientations in Spanish and English. 1. Plant Closure due to COVID-19 In the spring of 2020,3 the plant suspended operations and laid off its workforce in response to the pandemic. It restarted on June 1 and workers were recalled. (R. Exhs. 1-2). 2. Start-Up Problems Serta encountered start-up difficulties, when many of its workers rejected their recall offers. This prompted Serta to ab- ruptly initiate plans to hire 120 new workers, which then prompted it to raise its starting wage rate in order to attract a sufficient pool of applicants. 3. June 16 Meetings Serta held employee meetings in the plant’s parking lot to an- nounce the new starting rate. HR Business Partner Sharon Lauck explained that Serta raised its starting rate to $17 per hour in or- der to help its recruiting efforts. She added that any incumbents making less than $17 per hour would be raised to that rate and anyone making more would receive up to $.35 per hour more based upon service time. Her statements were translated into Spanish. Although these meetings went smoothly, employees became disgruntled upon realizing that the adjustment meant that many experienced workers and newly-hired workers were now receiving comparable pay. 4. August 3 – Work Stoppage and Terminations At 9 am, several 1st shift employees left their workstations during their shifts and sought out Operations Manager Charles Hoover in the office area to discuss their pay disparity concerns. Hoover, who was in a conference call, was unavailable, which resulted in the several dozen employees lingering in the office area, as they awaited a meeting.4 While employees waited for Hoover, HR Business Partner Lauck made an announcement at 9:10 a.m., which is the subject of a credibility dispute. Employee Yanira Rodriguez recalled Lauck telling the group to “go back to work or you are fired”5 (tr. 155), while Lauck insisted that she said that employees, “need to clock out and go home or go back to work.”6 (Tr. 545). It is undisputed, however, that Lauck’s comments prompted about 20 workers to return to work and the others to relocate to the cafeteria. For several reasons, I resolve the credibility dispute 3 All dates that follow are in 2020, unless otherwise stated. 4 This group totaled about 40 workers. (GC Exhs. 6-7). 5 Employee William Beato corroborated her testimony. (Tr. 249). It is noteworthy that all of the Spanish-only speaking employees agreed that they all understood what “fired” meant, when spoken in English. 6 Geury Hernandez, safety officer, corroborated Lauck’s testimony. (Tr. 607). 7 Rodriguez was an open and believable witness. It is also plausible that the group would not have dispersed in the way that it did, in the absence of a threat. 8 The parties stipulated that 13 employees were not fired on the basis of “any prior disciplinary record, attendance infraction, or work-related performance reason other than the events that occurred on August 3.” (JT in favor of Rodriguez.7 While the 20 remaining workers waited in the cafeteria for Hoover, Serta took several actions. First, as other 1st shift work- ers began taking lunch breaks, management diverted them away from the cafeteria and asked them to eat in their cars, outside or in its bedding showroom. Second, at 11 a.m., Lauck instructed several supervisors to clock out the striking employees. See also (GC Exh. 2). Finally, at 11:15 am, Chief HR Officer Goldblatt, legal counsel, Regional VP Schnipke, Hoover, Lauck and others, held a conference call and decided to fire the workers. After Serta decided to fire the workers, Hoover returned to the cafeteria to afford them a last chance to return to work. Produc- tion Manager Michael Kelly recounted Lauck announcing that employees would be in “trouble,” if they did not return to work. (Tr. 641). After 4 more employees relented and returned to work, Serta fired the remaining 13. (Tr. 108-109). Lauck confirmed that they were fired “for refusing to go back to work.”8 (Tr. 108). They also received termination letters, which stated that, “your employment … is being terminated effective August 3, 2020 for violation of refusal to return to work.” (GC Exh. 4). These em- ployees were fired: Antolin Batista;9 Antonio Basilio; William Beato; Wilson Bernard; Felisberto De La Cruz; Severino Felix; Roberto Perez; Felipe Polanco; Yanira Rodriguez; Juan Santana; Bolivar Valdiviezo; Andres Vasquez;10 and Maximo Veloz. At all relevant times, the employees were assembled peace- fully. Video footage demonstrated that they were socially dis- tanced and wore COVID-19 masks. (GC Exh. 16).11 5. Pennsylvania State Police and Worker Ejections At 11:30 a.m., Serta contacted the Pennsylvania State Police and sought their assistance with removing the workers. This re- sulted in the striking employees peacefully leaving the plant. The Police Report memorialized the incident: I responded to the above location for an issue with 13 employ- ees. Upon arrival …, I spoke to Lauck who advised that 13 em- ployees were asked to leave after they refused to return to work and were subsequently terminated. She related they wanted an increase in pay and would not leave. Upon speaking to the individuals, they wanted to talk to some- one about their wages and the company refused to talk to them. They were just told to go back to work or be terminated. Some employees did return to work, others did not. I then requested Exh. 1). Lauck agreed that they were not fired because they were in the cafeteria for over 3 hours or for trespassing. (Tr. 113, 116). She con- firmed that they had already been fired before Serta called the Police and that they “weren’t trespassing until they were terminated.” (Id.). She re- capped that, “they were fired for refusing to go back to work after repeat- edly being asked to go back to work.” (Tr. 113). 9 The complaint lists him as Ariel Batista. 10 The complaint identifies him as Andres Vazquez-Martinez. 11 The work stoppage only interfered with production in the sense that 20% of the workforce on the 1st shift left their posts and caused two pro- duction lines to shut down. There is no evidence that the employees ever re-entered the work area, physically interfered with ongoing production or otherwise interfered with others performing their jobs. SERTA SIMMONS BEDDING 17 they leave the property which they did without incident. No further action was taken, resumed patrol. (GC Exh. 5). 6. August 4 – Return to Work Offers On August 4, terminated worker Beato, texted Regional VP Schnipke this message: Ok 13 employees get terminated good workers if possible that's we come back tomorrow. We tried to help our coworkers who have worked in Simon for many years to make some decent money because we noticed how new worker would get paid the same or more. We didn't want to cause any problems. A lot of us need the job to pay bill and support our families. We want to go back to work. Is it possible that we can go back to work tomorrow or anytime soon? Thank you (GC Exh. 11)(as stated in the original). On August 5, Schnipke replied, inter alia, that: I received your text. Our position has not changed. You were offered an opportunity to quit your boycott and return to work. The consequencesof not returning to work were explained, and you elected to continue to boycott rather than return to work. We followed through with terminations. (Id.). 7. August 5 – Lauck and Schnipke Emails On August 5 at 9:55 am, Lauck sent this email to Schnipke: The problem is if we bring them back we are setting a prece- dent that you can do this and we will bring you back. I know we do not want them all back can we actually pick and choose without repercussions. I need to talk with the team to see if we want to salvage any. Can I let you know tomorrow? (GC Exh. 24). On the same date at 11:11 am, Schnipke emailed: Talk with the team tomorrow and see if there is anyone you want to bring back. I’m going to text William today with a message that Clara wrote. Dana and I both said NO WAY to rehiring him. (Id.)(emphasis as in original). On the same date at 3:24 pm, Lauck emailed back that: We are all in agreement to William, my gut is saying no to all of them, I really don’t want any more issues and if it isn’t Wil- liam one of them will pick up where he left off. (Id.). 8. Reinstatement Offers Serta eventually reconsidered its position and made 12 This handbook is discussed at employee orientation and is available online. 13 This allegation is pled under complaint ¶¶4 and 7. 14 This allegation is pled under complaint ¶¶6 and 7. unconditional offers of reinstatement to: Batista; Basilio; Ber- nard; De La Cruz; Perez; Rodriquez; Vasquez; and Veloz. (JT Exh. 1). On May 24, 2021, Batista, De La Cruz, Perez and Vasquez returned. (Id.). Beato, Santana, Valdiviezo, Severino and Polanco were not, however, offered reinstatement. (Tr. 369). 9. Workplace Grievance Policy Serta maintained an open door policy, where employees could raise grievances with management and human resources, as well as a posted alert line procedure. (Tr. 177-78). Its Employee Handbook cited an in-house grievance procedure, open-door policy and alert line.12 (R. Exh. 4). The Employee Handbook has English and Spanish versions. (Tr. 558). B. Analysis 1. §8(a)(1) – Statements Regarding Work Stoppage13 Serta violated §8(a)(1), when Lauck threatened to fire em- ployees, who did not return to work and end their work stoppage and, thereafter, told employees that they were fired because of the work stoppage. It is unlawful to threaten to fire workers for holding a protected work stoppage. See, e.g., Noahs Ark Proces- sors, 370 NLRB No. 74 (2021); Don Chavas, LLC, 361 NLRB 101 (2014). 2. §8(a)(1) – Terminations14 a. Legal Precedent In Atlantic Scaffolding Co., 356 NLRB 835, 838 (2011), the Board held as follows: Where… employees are terminated for engaging in a protected concerted work stoppage, Wright Line is not the appropriate analysis, as the existence of the 8(a)(1) violation does not turn on the employer's motive .… Rather, when the conduct for which the employees are discharged constitutes protected con- certed activity, “the only issue is whether [that] conduct lost the protection of the Act because … [it] crossed over the line sep- arating protected and unprotected activity.” Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. mem. 63 Fed.Appx. 524 (D.C. Cir. 2003). In striking a balance between §7 and private property rights, the Board seeks to accommodate both rights “with as little de- struction of one as is consistent with the maintenance of the other.” Wal-Mart Stores, Inc., 364 NLRB No. 118, slip op. at 3 (2016). It, thus, uses this 10-factor test to assess if work stop- pages arising on an employer’s property are protected: (1) reason for the work stoppage; (2) peacefulness of the stoppage; (3) interference with production, or depriving property ac- cess;15 (4) adequate opportunity to present grievances; 15 The disruption/ interference inquiry focuses on whether employees “interfere[d] with production or the provision of services by preventing other employees who are working from performing their duties.” See Los Angeles Airport Hilton Hotel & Towers, 360 NLRB 1080, 1084 (2014), enfd. 789 F.3d 154 (D.C. Cir. 2015) (emphasis added). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 (5) warning to vacate or be fired; (6) work stoppage duration; (7) employee representation and established grievance proce- dure; (8) remaining after shift’s end; (9) attempting to seize property; and (10) mass firing rationale. Quietflex Mfg., Inc., 344 NLRB 1055, 1056–1057 (2005). b. Analysis The Quietflex factors demonstrates that the work stoppage re- mained protected. Serta’s firing of the work stoppage employees, accordingly, violated the Act. Regarding factor 1, the work stoppage protested Serta’s wage policy. It was, as a result, “concerted activity for the purpose of mutual aid or protection,” which supports protection. Walmart, supra. Regarding factor 2, the work stoppage was peaceful. Video evidence demonstrated that employees were, at all times, peace- fully gathered. This factor supports protection. Id. Regarding factor 3, the work stoppage had no effect on pro- duction and only a de minimis effect on cafeteria access. Given that the work stoppage took place in the cafeteria, it did not pre- vent others from performing production duties. Los Angeles Air- port Hilton, supra. And, although the work stoppage diverted some from eating lunch in the cafeteria, this interference was mi- nor because the stoppage occurred during the pandemic (i.e., when employees often ate outside, in their cars and socially dis- tanced in the cafeteria). In sum, because the work stoppage did not interfere with others’ work and only had a minor impact on cafeteria usage, this factor still supports finding that it remained protected. Walmart, supra. Regarding factor 4, this factor is neutral. Although Serta had an open door policy that provided a forum for grievances, this policy appeared to be limited to meeting with employees indi- vidually. Hoover, as noted, refused to meet with the group and Serta never otherwise stated that it would do so, even though the grievance was collective in nature. This factor, accordingly, is mixed, and neither supports nor detracts from protection. Id. Regarding factor 5, employees were never told to depart the plant because they were deemed to be trespassers or risk termi- nation. They were solely told to return to work or they would be fired, which is very different; notably, it is undisputed they were not even considered to be trespassers until after their firings.16 This factor, as a result, further supports that the work stoppage remained protected. Id. Regarding factor 6, the work stoppage lasted for about 150 minutes, i.e., from 9 am to 11:30 am. This duration exceeded the 88-minute protest, which was protected in Walmart as well as the 10-minute stoppage protected in Santa Barbara News-Press, 357 NLRB 452, 483 (2011), vacated on other grounds, 702 F.3d 16 Lauck told employees to “go back to work or you are fired” and explained that “they were fired for refusing to go back to work after repeatedly being asked to go back to work.” (Tr. 113, 155). Serta memorialized its rationale in its termination letters, which cited, “refusal to return to work.” (GC Exh. 4). Lauck agreed that employees were not 51 (D.C. Cir. 2012). I find, as a result, that this factor mitigates against protection. See Quietflex, supra (12-hour work stoppage lost protection). Regarding factor 7, this factor favors loss of protection. Alt- hough employees were not represented by a union, they still had access to the in-house grievance procedure. Regarding factor 8, this factor favors protection. The work stoppage occurred squarely in the middle of the 1st shift (i.e., 6 a.m. to 5 p.m.), involved only first shift workers and did not ex- tend to the second shift. Regarding factor 9, this factor also favors protection. The em- ployees were, at all times, peaceful and respectful, and never at- tempted to seize Serta’s property. Regarding factor 10, Serta’s rationale for the mass firing fa- vors protection. Employees were expressly fired for refusing to go back to work (i.e., their §7 activity), as opposed to interfering with Serta’s operations or its private property rights (i.e., tres- passing). In sum, the Quietflex factors demonstrate that the work stop- page was protected. Serta, as a result, violated §8(a)(1), when it fired its employees for refusing to return to work. As noted, seven of the 10 factors favor protection, two favor loss of pro- tection and one is neutral. In making this finding, great reliance has been placed on the following: the work stoppage had a pro- tected and core §7 aim of protesting wages; employees were fired for refusing to go back to work during their shift (i.e., the §7 aim), as opposed to fired for trespassing; it was consistently peaceful and did not involve the seizure of the plant; and it oc- curred away from the plant floor and did not impede production. Walmart, supra. 3. §8(a)(1) – Police Removal17 Serta violated §8(a)(1), when Lauck asked the police to re- move employees from the plant for refusing to return to work. As said, the employees were unlawfully fired and their police- based removal was based upon their protected activities. See Meyer Tool, Inc., 366 NLRB No. 32 (2018); Winkle Bus Co., 347 NLRB 1203, 1219 (2006). CONCLUSIONS OF LAW 1. Serta is an employer engaged in commerce within the meaning of §2(2), (6), and (7) of the Act. 2. Serta violated §8(a)(1) by: a. Threatening to fire employees for engaging in protected concerted activities and, thereafter, informing them that they are fired because of their protected concerted activities. b. Firing these 13 employees for engaging in protected con- certed activities: Antolin Batista;18 Antonio Basilio; William Beato; Wilson Bernard; Felisberto De La Cruz; Severino Felix; Roberto Perez; Felipe Polanco; Yanira Rodriguez; Juan Santana; Bolivar Valdiviezo; Andres Vasquez;19 and Maximo Veloz. fired for trespassing and “weren’t trespassing until they were termi- nated.” (Tr. 113, 116). 17 This allegation is pled under complaint ¶¶5 and 7. 18 The complaint, as said, lists him as Ariel Batista. 19 The complaint, as said, lists him as Andres Vazquez-Martinez. SERTA SIMMONS BEDDING 19 c. Summoning the police to have these employees removed from the plant for engaging in protected concerted activities. 3. These unfair labor practices affect commerce within the meaning of §2(6) and (7). REMEDY The appropriate remedy for the violations found herein is an order requiring Serta to cease and desist from its unlawful con- duct and to take certain affirmative action. Specifically, it must offer Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Polanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz full reinstatement to their former jobs, unless this has already been done, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority rights or any other rights or privileges previously enjoyed. It must make them whole for any loss of earnings and other benefits suffered as a result of the unlawful termination of their employment on August 3, 2020. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest com- pounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). Additionally, it must compensate them for any adverse tax consequences of receiving a lump-sum backpay award, and file with the Regional Director a report allocating the backpay award to the appropriate calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). It must compensate them for their search-for-work and interim employment expenses, regard- less of whether those expenses exceed interim earnings. King Soopers, Inc., 364 NLRB No. 93 (2016). The search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest compounded daily as prescribed in New Horizons, supra, and Kentucky River Medical Center, supra. It shall also remove from its files any references to their unlawful August 3, 2020 terminations, and notify them in writing in English and Spanish that this has been done and that this action will not be used against them in any way. Finally, it shall post the attached notice in English and Spanish in accord- ance with J. Picini Flooring, 356 NLRB 11 (2010). On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended20 ORDER Serta Simmons Bedding, LLC, Hazleton, Pennsylvania, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from a. Threatening to fire employees for engaging in protected concerted activities and, thereafter, informing them that they are fired because of their protected concerted activities. b. Firing or otherwise discriminating against its employees 20 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in §102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 21 The parties stipulated that Serta made unconditional offers of rein- statement to Batista, Basilio, Bernard, De La Cruz, Perez, Rodriquez, Vasquez and Veloz, and that, on May 24, 2021, Batista, De La Cruz, for engaging in protected concerted activities. c. Summoning the police to have employees removed from the plant for engaging in protected concerted activities. d. In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by §7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the Act’s policies a. Within 14 days from the date of the Board’s order, offer Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Po- lanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz full reinstatement to their former job, unless this has already been done, or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.21 b. Make Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Polanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz whole for any loss of earnings and benefits suffered as a result of their unlawful terminations on August 3, 2020, in the manner set forth in the remedy section above. c. Make Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Polanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz whole for their reasonable search-for-work and interim employment expenses, in the manner set forth in the remedy sec- tion above. d. Compensate Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Polanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz for the adverse tax consequences, if any, of receiving a lumpsum backpay award, and file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. e. Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records, in- cluding an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of the Board’s order. f. Within 14 days of the date of the Board’s order, remove from its files any reference to the unlawful August 3, 2020 ter- minations of Batista, Basilio, Beato, Bernard, De La Cruz, Felix, Perez, Polanco, Rodriguez, Santana, Valdiviezo, Vasquez and Veloz, and within 3 days thereafter, notify them in writing in English and Spanish that this has been done and that those ac- tions will not be used against them in any way. g. Within 14 days after service by the Region, post at its Perez and Vasquez returned. (JT Exh. 1). Their stipulation is unclear, however, regarding whether they were offered something less than full reinstatement to their former jobs or substantially equivalent jobs, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. These matters can, if necessary, be resolved during the compli- ance phase. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 Hazleton, Pennsylvania facility the attached notice marked “Ap- pendix” in English and Spanish.22 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. If the Respond- ent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 3, 2020. h. Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. Dated Washington, D.C. December 17, 2021 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT threaten to fire employees for collectively seek- ing a raise and, thereafter, tell them that they are fired because they collectively sought this raise. WE WILL NOT fire or otherwise discriminate against our em- ployees for collectively seeking a wage raise or for engaging in other protected concerted activities. WE WILL NOT call the police to have our employees removed from the plant because they collectively sought a wage raises or engaged in other protected concerted activities. WE WILL NOT in any like or related manner interfere with, re- strain or coerce you in the exercise of the rights guaranteed you 22 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the by Section 7 of the Act. WE WILL offer Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz whole for any loss of earnings and benefits suffered as a result of their unlawful August 3, 2020 firings. WE WILL make Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Veloz whole for their reasonable search-for-work and interim employment ex- penses. WE WILL compensate Antolin Batista, Antonio Basilio, Wil- liam Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Ve- loz for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and file with the Board’s Regional Director a report allocating the backpay award to the appropriate calendar year. WE WILL remove from our files any reference to the unlawful August 3, 2020 terminations of Antolin Batista, Antonio Basilio, William Beato, Wilson Bernard, Felisberto De La Cruz, Severino Felix, Roberto Perez, Felipe Polanco, Yanira Rodriguez, Juan Santana, Bolivar Valdiviezo, Andres Vasquez, and Maximo Ve- loz and notify them in writing that this has been done and that it will not be used against them in any way. SERTA SIMMONS BEDDING, LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-266838 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”