E. R. Carpenter Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. R. Carpenter Co. and Ann S. Atkinson. Case 9- CA-13732 September 9, 1980 DECISION AND ORDER On April 23, 1980, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, E. R. Carpen- ter Co., Russellville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge erroneously found that the gloves of the protective suits that employees Atkinson, McClusky, and Riggs were required to wear were attached to the suits with tape, whereas the record establishes that the gloves were not separable from the bodies (of the suits. This error does not affect our affirmance of the Administrative Law Judge's conclusions. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard in Russellville, Kentucky, on De- cember 6 and 7, 1979, and on January 15 and 16, 1980. The complaint, which issued on May 25, 1979, alleges that Respondent violated Section 8(a)(1) of the Act by discharging employees Ann S. Atkinson, Rosemary McClusky, and Charlotte Riggs for engaging in protect- ed concerted activities, that is, refusing to work on De- cember 8, 1978, in equipment which they reasonably be- lieved to be unsafe and unsanitary. Respondent entered into a stipulation with General Counsel that, on the day in question, the employees viewed their equipment as "being both unsanitary and thereby unsafe," and because the equipment was unsanitary this "would render it unsafe to be worn." Respondent also conceded that the employees were engaged in concerted activity when they refused to work but denied that the concerted refus- al was protected by Section 7 of the Act or that its dis- 252 NLRB No. 5 charge of the employees was an unfair labor practice. The parties filed briefs which were received on or about February 15, 1980. Upon the entire record and from my observation of the testimony and the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Virginia corporation engaged in the manufacture and sale of foam and foam-related products at its Russellville, Kentucky, facility. During the 12 months prior to the issuance of the complaint, Respond- ent sold and shipped goods and materials valued in excess of $50,000 from its Russellville, Kentucky, facility directly to points outside the Commonwealth of Ken- tucky. Accordingly, I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Respondent's Russellville facility includes a building identified as plant 2 where polyurethane foam is manu- factured for a feminine hygiene product. Production on this particular material began in or about March or April 1978. The foam producing process utilizes a conveyor system which is encased in a plexiglass "train" to contain gases-some toxic-which are released in the manufac- turing process. The process begins when a liquid chemi- cal is poured and combined with hydrogen chloride which causes the liquid to turn into foam and to expand. The process results in the release of toxic hydrogen chlo- ride gas fumes. The plexiglass is removable in sections so that employees can, when necessary, have direct access to the foam or the conveyor. At such times, the employ- ees wear respirators, raincoats, and gloves. The foam rises in so-called buns inside the train and is carried to a slitter where the buns are sliced horizontally into 6-7 foot layers. The slitter is located at a point where the train enters the "little building," an enclosed plexiglass area about 6-feet high, 4-feet wide, and 6-feet long. The little building is large enough for two employ- ees. When the foam is slit it releases large amounts of heat and gases including hydrogen chloride gas. At this point in the production process it is necessary for employees to enter the little building and pick up or "destack" the layers of foam and place them on another conveyor where they are cubed and stored. The atmos- phere in the little building is highly toxic and very hot. The temperature reaches heights of about 120 degrees Fahrenheit. The employees who work in the little build- ing-the destackers-are required to wear protective safety equipment. They normally wear two-piece pres- surized rubber suits (moon suits) which cover them com- pletely. The moons suits include the body or "skin" which covers the torso, arms, and legs, and a helmet or 18 E. R. CARPENTER CO hood with a visor which fits over the head and shoulder area. The destackers also wear gloves which are taped to the suit as are the helmets. The destackers carry tanks of compressed air on their backs. The tanks are connected to the moon suits by plastic airhoses which provide for breathing and cooling as well as pressure for the suits. The destackers are permitted to work in the little building for no longer than 2 hours at a time. They have to be helped into their two-piece moon suits by another employee. At first, only four employees shared two moon suits: Atkinson, McClusky, Riggs, and Brenda Tines. From about April or May until October 1978 the Respondent only operated on the first shift from 7 a.m. to about 3 p.m. The four destackers on the first shift alternated in pairs. Only two worked in the little building at any one time. When they were not destacking the employees did maintenance or general cleanup work in their work area. After October 1978, a second shift was added and four additional destackers worked in the little building. The second shift began at 3:30 and lasted until about 11:30 p.m. From October to December 8, 1978, there were only two fully operational and working moon suits. They were used by all eight destackers, four on each shift. Ap- parently there were parts of other suits also available but, when the second shift began, Respondent did not insist that each destacker have her own moon suit. The moon suits have a useful life of 3 to 5 weeks. After the addition of the second shift, the first shift destackers began complaining to management officials that new moon suits were needed and the existing moon suits could not last with the double utilization of the suits. The destackers also complained almost constantly about the foul smelling and unsanitary condition of the moon suits. A cleaning program was instituted but did not appear to be effective. The moon suits also devel- oped holes which were taped with paper tape or "duct" tape and sometimes retaped in an attempt to prevent the fumes from entering the moon suits. The employees com- plained to management that the holes were allowing the toxic fumes to enter the suits causing rashes on their skin and stains on their clothing. One of the helmets had split in two at the point where the airhose was connected to it and it had been taped and retaped. Thus, the employees' complaints related not only to the cleanliness of the moon suits, but to their safety, at least insofar as they contended that the holes in the suits permitted fumes to enter the moon suits.' With respect to the condition of the moon suits generally and how many moon suits were utilized and operational during the critical periods, I credit the testimony of the employee witnesses who were candid and honest witnesses. They testified in a detailed and knowledgeable fashion and their testimony survived vigorous cross-examination. The testimony of Respondent's witnesses on these points was not as precise, detailed, or knowledgeable as that of the employees who worked in the suits every day Supervisor Doug Skipper, who was the most reliable of Respond- ent's witnesses, really did not have an opportunity to view the condition of the moon suits closely and he did not know all of the safety equipment in use. However, I note that Skipper specifically testified that the em- ployees were concerned about the holes in the moon suits, thus corrobo- rating the testimony of the employees that their concern was not only that the moon suits were unsanitary but also that they were unsafe He said that they complained to both him and Production Manager Vance about the fumes coming into the moon suits and causing skin rashes and Respondent's chief witnesses, Production Manager David Vance and Plant Manager Ed Sanders did not deny that the holes were caused by the toxic fumes or that the holes were simply taped over. However, they dismissed this condition as insignificant so long as there was sufficient airflow from the airhoses into the moon suits since the outward air pressure prevented the toxic fumes from entering the moon suits. The employees testi- fied that at times there was not a sufficient amount of air flowing into the moon suits to fully "blow them up" or expand them in order to keep the fumes out. McClusky testified that one moon suit "had holes in it, it was dirty and it was smelly. It would not inflate properly. The moon suits stuck to us more or less. The airhose was in such a poor condition that it literally would not allow enough air to come into us for breathing." Sanders him- self testified that he knew the gloves were too large for the destackers' hands and that they had to tape the gloves onto the moon suits, thus impeding the air flow. All witnesses testified that throughout October, No- vember, and December, employees Atkinson, Riggs, and McClusky complained to supervisors about the condition of the moon suits and the fact that fumes were entering the moon suits through holes in the moon suits. The em- ployees testified that their clothes were stained. One em- ployee, Riggs, developed a rash on her arms which she attributed to the fumes and, another employee, McClusky, attributed breathing problems to the fumes. Respondent's officials deflected most of the complaints by general statements that new moon suits were on order. At one point, the employees were told that new two-piece moon suits would arrive on December 18, 1978. 2. The refusal to work and the discharges on December 8 On Friday, December 8, 1978, when Atkinson, McClusky, and Riggs arrived at work-Brenda Tines, the fourth destacker on the first shift, was absent that day-they found their moon suits lying on the floor with the airhoses pulled out of the suits. They had not been cleaned by the previous shift and were in foul-smelling, unsanitary condition. The employees spoke among them- selves and decided that the moon suits were in such bad condition that they would not work in them. The em- ployees summoned their leadman and told him the moon suits were in such "bad shape" that they could not be worn. The leadman agreed and he summoned Nathan Wilson, the maintenance employee who was responsible for keeping the moon suits in good maintenance and repair. Wilson said that there was nothing he could do and agreed that the moon suits were unsafe and un- healthy. Wilson then summoned Supervisor Doug Skip- per, who, in turn, summoned his superior, David Vance, the production manager. The employees told Vance and Skipper that they could not wear the moon suits. They stated that the moon suits were in poor condition and had not been cleaned. About this time, Ed Sarders, who clothing stains He also corroborated the employees' testimony that they told management officials that the moon suits would not last with eight people using them instead of four. 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was serving his first day as plant manager, came onto the scene. The employees complained to Sanders about the condition of the moon suits and again refused to wear them. Sanders and Vance offered to give them as much time as they wanted to clean the moon suits. They also offered to clean the moon suits themselves or have other people clean them. The employees responded that clean- ing the moon suits would not eliminate the holes. At no time did Respondent's officials tell the employees that they could clean the moon suits but would not be made to wear them. They insisted that the employees wear the moon suits. After this initial conversation, the employees became upset and Sanders told them to go to the restroom and calm down. After a short period Sanders returned and again approached the employees. They were cleaning the area with brooms. He asked if they had reconsidered his proposal to clean the moon suits, wear them, and resume working. They again refused. Plant Manager Sanders tes- tified that the employees complained at this time that the moon suits were unsafe. They asked him to look at the holes in the moon suits. The employees also asked Sand- ers not "to pour"-not to start the manufacturing proc- ess, and to let them clean up that day. Sanders refused. They also offered to "destack the foam" according to Supervisor Doug Skipper. They offered to work in rain- coats, respirators, and gloves, outfits used by employees occasionally to work temporarily in the little building or in other gaseous areas. 2 The second confrontation between Sanders and the employees apparently ended because it was time for a break period. Shortly after the end of the break period, the three employees were separately called into Sanders' office asked once again to clean the moon suits and to wear them. They refused. After another unsuccessful effort to accommodate the employees in order to get them to wear the moon suits, Sanders discharged each of them. The discharges took place at or about 9:30 a.m. No foam was poured during the day shift on Decem- ber 8. During the early morning hours, according to Sanders, there were problems "with another part of the process," and there was no raw material available until about 10 a.m. Later, according to Sanders, the manufac- turing process could not proceed because of a flood in the plant. Employees were sweeping water from the floor. This difficulty continued through the beginning of the second shift at 3:30 p.m. The pouring process began at or about 5:30 p.m., 2 hours after the beginning of the second shift. According to Sanders, neither he nor anyone else cleaned the moon suits on December 8. He did not order the moon suits cleaned.3 However, the second-shift em- ployees were told by their supervisor that the first-shift employees were fired for refusing to wear the moon suits. They were also told that new moon suits would be received the following Monday. About 2 hours later the 2 This garb is ordinarily used by tampers, employees who stand outside the conveying equipment and put their arms inside to tap on the foam in order to aid in its expansion. The respirator does not cover the entire face and Sanders regarded this equipment more dangerous than the moon suits. He thus refused the employees' offer. s Vance testified that the moon suits were cleaned. production started on the second shift and the second- shift destackers wore the old moon suits. According to Respondent's witnesses, Sanders consult- ed Division Manager Bill Easterling by telephone several times during the morning of December 8. Easterling was advised of the situation and he eventually approved the discharges. Sanders also told Vance to try to get new moon suits from any source as soon as possible. Sanders testified, "I told David Vance to get on the phone and contact every known safety equipment supplier in the United States and try to find suits of any type, any type of moonsuits." The discharged employees were told of Vance's efforts. Vance was able to secure new moon suits sometime in the afternoon on December 8 which was after the discharges. These were one-piece moon suits which, unlike the old moon suits, had the airhoses completely attached to the suits and were able to be fitted without help from a third person. Eight of the new one-piece moon suits were air freighted to Nashville and arrived at the plant on Monday. They were put into use on Tuesday after certain adjustments were made. Ac- cording to Vance, the fittings on the new moon suits were "quite different" from those on the old moon suits in "size and quality." 4 The same type of suit-with a fur- ther modification-is still in use today. Respondent re- ceived four previously ordered two-piece moon suits on December 18, as scheduled, but the two-piece moon suits remained in storage and were never used. Since receipt of the new moon suits and to date each of the eight destackers has had her own suit. Sanders testified that Skipper and, perhaps, Vance spoke against the discharges and suggested that he simply suspend the employees for a so-called 3-day cool- ing off period. Vance testified that he simply pointed out the possibility of a 3-day cooling off period. Vance also testified that he tried to replace the three destackers on December 8, but could not find replacements. On Monday, December 11, the three discharged em- ployees were replaced by two former employees who were recalled from layoff status and an employee who was previously a janitor but who had occasionally filled in as a destacker. The latter obtained the job under the Respondent's regular bidding procedure. The fourth po- sition was filled by destacker Brenda Tines who had been absent on Friday but resumed her regular job on Monday. Supervisor Skipper testified that on Monday he asked Sanders to bring back the discharged employees after a "three day cooling off period" because he knew "they needed their jobs." Sanders refused. B. Discussion and Analysis It is well settled that an employer may not discharge or discriminate against employees who protest-includ- ing by virtue of a concerted refusal to work-their terms or conditions of employment. N.L.R.B. v. Washington Aluminum Company Inc., 370 U.S. 9 (1962). Such con- duct by an employer violates Section 8(a)(1) of the Act irrespective of motive. Falls River Savings Bank, 247 4 Earlier Vance had testified that the one-piece moon suits were "easier to put on ... and they were cheaper." 20 E. R. CARPENTER CO. NLRB No. 88, fn. 3 (1980). Respondent's actions in this case fall squarely within the principles set forth in Wash- ington Aluminum and related cases. See, e.g., N.LR.B. v. Modern Carpet Industries, Inc., 611 F.2d 811 (10th Cir. 1979), enfg. 236 NLRB 1014 (1978); Audio Systems, Inc., 239 NLRB 1316 (1979); Union Boiler Co., 213 NLRB 818 (1974), enfd. 530 F.2d 970 (4th Cir. 1975); Roadway Ex- press, Inc., 217 NLRB 278, 279-280 (1975), enfd. 532 F.2d 751 (4th Cir. 1976). It is clear on this record that the employees were en- gaged in concerted protected activity. Their complaint about the condition of their safety equipment concerned "conditions of employment" within the meaning of Washington Aluminum Co. As the employees in Washing- ton Aluminum, they had "no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer . . . [T]hey had to speak for themselves as best they could." As the employ- ees in Washington Aluminum, they had repeatedly com- plained about the objectionable condition of their safety equipment. Moreover, as Washington Aluminum makes clear, that employees' complaints are not specific, that the employer makes some attempt to resolve the com- plaints, and that the employees' actions seem unwise are not relevant factors in determining whether the activity is protected and thus immune from employer retaliation. Nor were the activities of the employees herein removed from the protection of the Act because of the exceptions recognized by Washington Aluminum for conduct which is "unlawful," "violent," in "breach of contract," or "in- defensible" because it "show[s] a disloyalty to the work- ers' employer which .. [is] unnecessary to carry on the workers' legitimate concerted activities." (370 U.S. at 17.) The employees' refusal to work in a toxic atmos- phere in deteriorating moon suits was in no way unlaw- ful or indefensible "by any recognized standards of con- duct." (Ibid.) On the contrary, the employees herein had a good-faith belief that their working conditions were dangerous and this alone rendered their activity protect- ed. See N.L.R.B. v. Modern Carpets, supra. They had complained about the condition of the moon suits before and on December 8. The evidence shows that they were concerned not only about the unsanitary nature of the moon suits, but also about the holes in the moon suits and the possibility that toxic fumes were passing through the holes. Indeed, to paraphrase the observation made by the Supreme Court in Washington Aluminum, the em- ployees' protests herein, "are unquestionably activities to correct conditions which modern labor management leg- islation treats as too bad to have to be tolerated in a humane and civilized society like ours." 370 U.S. at 17. It is also clear on this record that Respondent dis- charged the three destackers because of their concerted protected activity. The activity-their refusal to work- was admittedly concerted. Concerted refusals to work are, of course, the basic protest recognized by American labor law and they are protected if directed, as here, to resolving work-related disputes. It cannot be doubted ' See also Whirlpool Corp. v. Marshall. 48 L.W. 4189 (Feb. 26. 1980), where the Supreme Court upheld the validity of an OSHA regulation which permits an employee to refuse a work assignment which he rea- sonably believes exposes him to risk of death or serious injury. that the employees refused to work in the moon suits be- cause they believed that the moon suits were in poor condition. Finally, it is clear that Respondent fired the employees for this protest. Plant Manager Ed Sanders admitted he discharged the employees for refusing to work in protest over the condition of the moon suits. He testified quite plainly as follows: "The reason I dis- charged [the destackers] was because they refused to clean the suits and to wear them." Division Manager Easterling's testimony is equally revealing. He empha- sized that the employees were discharged because Re- spondent could not "allow three employees to say we will not do the work they are assigned." Of course, all strikes involve refusals to work and an employer's insis- tence that such refusals to "follow orders" constitute in- subordination is contrary to basic Section 7 rights. Thus, the Supreme Court made quite clear in Washington Alu- minum, supra, that an employer may not invoke a com- pany rule prohibiting employees from leaving the plant without permission to justify the discharge of employees who engage in protected work stoppages. To read such a rule-or one on insubordination-in such a way as to vi- tiate a strike or a refusal to work would eviscerate Sec- tion 7 of the Act.6 Respondent's contention that the employees here were engaged in a partial strike is without merit. The Board has long recognized a limited exception to otherwise protected activity where employees engage in work stop- pages which are "partial," "intermittent," or "recurrent." These work stoppages are not protected by Section 7 of the Act because they produce "a condition that [is] nei- ther strike nor work." Valley City Furniture Company, 110 NLRB 1589, 1594-95 (1954), enfd. 230 F.2d 947 (6th Cir. 1956). The Board has stated to countenance such conduct, would be to allow employees "to do what we would not allow any employer to do; that is, unilaterally determine conditions of employment." Valley City Furni- ture, Co, supra, 110 NLRB at 1594-95. The cases show a disfavor for a "strike on the installment plan." C.G. Conn Limited v. N.L.R.B., 108 F.2d 390, 396 (7th Cir. 1939). See also International Union, U.A. W., A.F. of L.. Local 232, e al. v. Wisconsin Employment Relations Board et al., 1366 U.S. 245 (1949)(26 "special meetings" called during working hours by union over 5-month period). In short, this limited exception to the broad guarantees embodied in Section 7 of the Act does not authorize an employer to use the penalty of discharge to punish employees for engaging in a single, concerted work stoppage of limited duration in protest over working conditions. See N.L.R.B. v. Washington Aluminum Co.. supra, 370 U.S. at 17. The employees herein were not engaged in a partial strike or repeated work stoppages within the meaning of ' The employees' protest is not rendered unprotected simply because the employees were not well enough versed in labor relations to engage in a ritualistic walkout. Their refusal to work was as much protected as a full fledged walkout. Indeed, according to Respondent's witnesses, there were other problems-lack of raw materials and flooding-which pre- vented the initiation of the manufacturing process on December 8. This evidence offers even stronger support for the violation for it suggests that the discharges were based entirely on the employees' protest irrespective of whether work was available or whether there was a refusal to work. 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the cited cases. Respondent's contention that the employ- ees expressed a "desire" to perform their jobs in a manner inconsistent with the instructions of management falls far short of the action inherent in a partial or recur- rent work stoppage. The employees' suggestions that they work in other protective garb or that they be limit- ed to general cleanup were efforts to resolve the dispute by negotiation and were treated as such by the Respond- ent. Easterling expressed the view that the attempts to resolve the dispute had reached an impasse and Sanders himself referred to "proposals" and "appeasement" in de- scribing his discussions with the employees. At no time did the employees usurp the role of the employer and ac- tively and defiantly perform some but not all of their work while insisting that they be paid for such tactics. Indeed, in their desire to perform their jobs, the employ- ees offered to work in other protective garb. Their con- cern was that they work in safe and sanitary equipment but they were at all times willing to work. Finally, Re- spondent's argument, at least insofar as it refers to em- ployees doing general cleanup, is specious. Respondent agrees that the destackers were fired between 9:15 and 9:35 a.m., but Sanders testified that production was de- layed "until about 10:00" because of problems with raw materials. 7 Nor does the instant case present any of the other situ- ations which render an employee protest unprotected. The employees did not engage in a "sit down" strike or a refusal to leave the premises. Indeed, prior to discharg- ing the employees, Respondent neither directed them to leave the premises nor treated them as strikers which it was clearly entitled to do. Of course, as strikers, the em- ployees would forfeit their pay and could be replaced, but they remain employees under the Act and may not be discharged. Instead of sending the employees home and using replacements Respondent discharged them for their protest. This it could not do. See Masonic and East- ern Star Homes, 206 NLRB 789 (1973), enfd. 77 LC ¶ 10, 883 (D.C. Cir. 1975). As then-Chairman Miller stated in that case, "the [employer's] express concern for discharg- ing the employees . . . was not for any alleged trespass or sitdown strike, but for not going to work. This [the employer] may not do." (206 NLRB at 791, fn. 7.) Those remarks apply as well to Respondent's conduct in the in- stant case. I The cases cited by Respondent are inapposite. Several of the cases involve a concerted refusal to work overtime--conduct which is pre- sumptively protected. But, even in refusals to work overtime, the refusals are protected unless the employees engage or threaten to engage in re- peated work stoppages limited to a portion of the working day. See First National Bank of Omaha, 171 NLR 1145 (1968), enfd. 413 F.2d 921 (8th Cir. 1969), and Polyrtech, Incorporated, 195 NLRB 695 (1972), distinguish- ing the overtime cases cited by Respondent in support of its position. Two other cases cited by Respondent involved the same basic tactic- i.e., actively engaging in a partial strike-and were also distinguished in First National Bank and Polytech. They are also clearly distinguishable from the situation presented here because there, unlike here, the employ- ees usurped the employer's role and dictated the conditions under which they worked. In N.L.R.B. v. Montgomery Ward & Co., 157 F.2d 486 (4th Cir. 1946), the employees stayed at their jobs but refused to handle cer- tain struck work. In Home Beneficial Life Insurance Company Inc. v N.L.R.B., 159 F2d 280, 286 (4th Cir. 1947), cert. denied 332 U.S. 758 (1948), the employees drew their pay while refusing to carry out part of their duties. Respondent also argues that no genuine issue of safety existed because the employees did not consider the moon suits to be unsafe but only unsanitary. This is, of course, a distinction without a difference because the unsanitary nature of the suits was as much a working condition as the safety of the suits. The employees were thus within their Section 7 rights to protest the condition of the moon suits whether or not safety was involved. Howev- er, Respondent is wrong on the facts as well. The evi- dence clearly indicates a concern with safety insofar as the complaints, both before and on December 8, related to the holes in the suits and the allegation that toxic fumes were entering the suits. Plant Manager Sanders himself testified that on December 8 the employees told him that the suits "cannot be safe." Indeed, although not necessary to the resolution of this issue, I find that the moon suits were in fact unsafe on December 8, 1978. Re- spondent took them out of service two working days later because they were unusable. Vance testified that the moon suits were replaced because the old moon suits were unusable and not because they were dirty. This fact supports the overwhelming credited testimony of the em- ployees that the suits were in such poor condition as to be unsafe. Finally, it is well settled that the Board in as- sessing Section 7 rights does not pass on the reasonable- ness of work related complaints. The only requirement is that the complaint was made in "good faith." See, N.L.R.B. v. Modern Carpet Industries, supra, 611 F.2d 811. Respondent in effect concedes, as it must, that the employees' complaints were made in good faith. Re- spondent stipulated that the employees viewed the moon suits as "being both unsanitary and thereby unsafe." That the employees put up with suits in bad condition for some months, complained about them consistently, and offered to work either in other protective garb or to do other jobs demonstrates their good faith. The frenzied effort of Respondent to replace the suits on December 8 and its actual replacement of them two working days later demonstrates not only the good faith of the employ- ees but also the reasonableness of their complaints.8 Finally, I reject Respondent's contention that the em- ployees were fired for refusing to clean the moon suits as opposed to refusing to wear them. As I have indicated, Sanders made it clear that the discharge was for refusing to wear the suits. Moreover, Second-Shift Supervisor Ray Rager testified that he told his destackers that the first-shift destackers had been fired for refusing to wear the moon suits. He also testified that he did not know whether his group of employees cleaned the moon suits before they wore them that day. But he told them that new moon suits had been acquired and would be at the a Respondent's contention that the employees' dispute was not with management but with the "second shift girls" (because of their statement that the latter did not adequately clean the moon suits) is specious. The complaint of the destackers was directed to the condition of the moon suits, generally, including the holes in the moon suits, and the fact that Respondent was forcing them to work in moon suits which were in bad condition. Indeed, two working days later, new suits were put into use and employees never again shared moon suits. Employees were assigned to their own moon suits which they were required to keep clean. A more dramatic reaction by an employer to justifiable work-related complaints could hardly be envisaged. 22 E. R. CARPENTER CO. plant on Monday. Vance testified that the new moon suits were ordered to replace suits which were not usable not simply to replace moon suits which were dirty. Thus, the very fact that the new moon suits were or- dered in such a frenzy on December 8 and put into use as soon as adjustments could be made illustrates that Re- spondent itself viewed the suits as no longer usable and not merely dirty. The three employees, whom I found to be candid and honest witnesses, testified that they were asked to clean the suits but that they did not flatly refuse to clean them. Sanders and Vance testified that they did indeed refuse to clean the suits. Skipper's testimony is unclear on this issue. He testified that the employees were told that other people would "help" clean the suits until they were satisfied of their cleanliness and "we would go ahead and work and the girls refused." Significantly, as Vance admitted, at no time were the employees told that they could clean the suits but would not have to wear them. Moreover, Sanders' testimony makes quite clear that he did not ask them to clean the suits but not wear them. Indeed, the fact that Sanders specifically offered to have other people, including him- self, clean the suits refutes any inference that his concern was that they merely clean the suits as opposed to wear- ing them. No alternative to not wearing the moon suits was acceptable to him. Thus, a fair interpretation of the testimony of Respondent's witnesses, including that of Skipper, is that the request to clean the moon moon suits was always tied to the requirement that the employees thereafter wear the moon suits. The employees under- stood the request that they clean the moon suits to be for the purpose of making them wearable, and, at no time, did any of Respondent's officials do anything to negate this understanding. All witnesses testified that the em- ployees were upset and Respondent reacted to the situa- tion by ordering new suits. From observing the demea- nor of all the witnesses, it is my view that the employees honestly and credibly testified that they did not refuse to clean the moon suits insofar as it could be construed as an unconditional request. However, at no time was the request an unconditional one. It was always conditioned on the employees thereafter wearing the moon suits. Al- though the employees may have refused to clean and wear the moon suits, they were never asked to clean the suits without the additional condition that they also thereafter wear the moon suits and, thus, I find that the employees did not specifically refuse to clean the moon suits apart from the request that the moon suits be worn. To the extent that the testimony of Sanders and Vance can be read to suggest anything different I reject their testimony. They did not impress me, in their demeanor, as candid witnesses. Rather they seemed to testify in a self-serving manner. Sanders, in particular, was not a re- liable witness. For example, Sanders was guarded in an- swering questions concerning whether he considered re- calling the employees after obtaining the new moon suits and only reluctantly conceded that the employees com- plained about the safety of the suits on December 8. He was particularly interested in emphasizing-sometimes with the aid of leading questions from counsel-that he fired the employees for refusing to clean the moon suits. Yet, he admitted that he also fired them for refusing to wear the moon suits and he never told the employees they could clean the moon suits but not wear them. It is clear from his entire testimony that he was most con- cerned with the employees' refusal to wear the moon suits. In addition, it appeared that both Sanders and Vance contrived about the impact of the destackers' re- fusal to work on production. At times they suggested that production was impeded by other unrelated factors and at times they blamed lack of production on the des- tackers. This not only reflects adversely on their testimo- ny but also refutes any argument that they were con- cerned solely with getting the suits cleaned. Moreover, Sanders conceded in his testimony that his "proposals" for the employees to clean the suits constituted "a sort of appeasement" to coax them into wearing the suits. His other proposals-that he or the janitors clean the suits- demonstrate his lack of concern that the destackers themselves clean the moon suits. Indeed, he testified that neither he nor anyone else cleaned the moon suits for the destackers before they were discharged. Finally, Sanders' insistence that the moon suits were not beyond repair on December 8 was simply self-serving and implausible in light of Respondent's frenzied effort to get new moon suits that very day and its actual use of new moon suits as soon as necessary adjustments could be made. Indeed, Sanders' attempt to downplay the condition of the moon suits beyond their uncleanliness is really contrary to that of his own supervisor, Skipper, who candidly testified that the employees consistently complained about the holes in the moon suits. I also note that Sanders and Vance contradicted each other in several instances. For example, Sanders testified that the moon suits were not cleaned on December 8; Vance testified they were. Sand- ers seemed to deemphasize the need for production on December 8; Vance said this was mentioned to the des- tackers in an effort to get them to wear the moon suits. Even assuming, however, that the testimony of Vance and Sanders is accepted on this point, the refusals of the destackers to clean the moon suits would have been in the context of refusing both to clean and thereafter to wear the moon suits. At no time were the employees presented the option of cleaning the moon suits but not wearing them. Respondent put no great stock in having the moon suits cleaned and indeed replaced them, as un- usable, as soon as it could get replacements. Respond- ent's concern was that the employees wear the moon suits. Thus, the refusal to clean the moon suits was part and parcel of the refusal to wear them and did not strip the employees of the protection of the Act. CONCLUSIONS OF LAW I. By discharging employees Ann S. Atkinson, Rose- mary McClusky, and Charlotte Riggs for engaging in protected concerted activities, Respondent has violated Section 8(a)(1) of the Act. 2. The said unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I will recommend that it cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. Respondent will be ordered to reinstate Ann S. At- kinson, Rosemary McClusky, and Charlotte Riggs to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions of employment and to make them whole for any loss of wages and other bene- fits they may have suffered as a result of their unlawful discharges with such losses to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest as set forth in Flor- ida Steel Corporation, 231 NLRB 651 (1977). 9 Upon the foregoing findings of fact and conclusions of law, and in accordance with Section 10(c) of the Act, I hereby issue the following recommended: ORDER l 0 The Respondent, E. R. Carpenter Co., Russellville, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, disciplining, retaliating against, or otherwise interfering with, restraining, or coercing em- ployees in the exercise of their Section 7 rights under the National Labor Relations Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action: (a) Offer Ann S. Atkinson, Rosemary McClusky, and Charlotte Riggs immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- 9 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). o1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Russellville, Kentucky, facility copies of the attached notice marked "Appendix." " Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days of the date of the Order, what steps have been taken to comply herewith. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT discharge, discipline, retaliate against, or otherwise interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL immediately reinstate Ann S. Atkinson, Rosemary McClusky, and Charlotte Riggs to their formers jobs and reimburse them, with interest, for any losses they may have suffered because of our unlawful discharge of them for refusing to work in unsafe and unsanitary equipment. E. R. CARPENTER CO. 24