Accel, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1052 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
Accel, Inc. and United Food and Commercial Work-
ers Union, Local 1059. Case 8–CA–33013
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On October 10, 2002, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has 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, and conclusions and
to adopt the recommended Order.
The judge, correctly applying Board law, found that
eight employees who walked off their assembly line to
protest the Respondent’s decision to deny them a sched-
uled work break engaged in protected activity, and, thus,
that the Respondent violated Section 8(a)(1) by discharg-
ing them for their work stoppage. P.B. & S. Chemical
Co., 224 NLRB 1 (1976) (employee walkout to protest
denial of break is protected activity).
The Respondent argues that the work stoppage was
unprotected because it was a disproportionately disrup-
tive response to a trivial grievance. It relies on several
circuit court decisions holding that employees’ means of
protesting a managerial decision that involves the con-
duct, selection, or discharge of a supervisor must be
“reasonable” in order to be protected.1 We find no merit
in that contention. As the Respondent concedes, the
Board has not imposed a “reasonable means” require-
ment on employees’ concerted activity. See, e.g., Trom-
pler, Inc., 335 NLRB at 480 fn. 26 (citing NLRB v.

1 The Respondent relies in particular on Seventh and First Circuit
precedents. Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012, 1022 (7th
Cir. 1998); Abilities & Goodwill, Inc. v. NLRB, 612 F.2d 6, 9 (1st Cir.
1979). However, the Board in Benesight, Inc., 337 NLRB 282, 283
(2001), found those cases distinguishable because they all involved
management decisions regarding conduct, selection, or discharge of
supervisory personnel, and the Seventh Circuit, in its recent decision in
Trompler, Inc. v. NLRB, 172 LRRM 3201 (7th Cir. 2003), enfg. 335
NLRB 478 (2001), limited its holding in Bob Evans Farms, supra,
based on that distinction.
The Sixth Circuit has also indicated that it takes “reasonableness”
into account in Squier Distributing Co. v. Teamsters Local 7, 801 F.2d
238 (6th Cir. 1986) (employees’ statements to sheriff regarding sus-
pected embezzlement by their employer’s general manager was pro-
tected because it was a reasonable means to protest a perceived risk of
job loss arising from the general manager’s conduct). Unlike our case
and like the Seventh and First Circuit cases, however, that case was
largely concerned with whether the cause of the employees’ protest was
sufficiently related to their terms and conditions of employment to
come within the protection of Sec. 7.
Washington Aluminum Co., 370 U.S. 9, 16 (1962), for
the proposition that “the reasonableness of workers’ de-
cisions to engage in concerted activity is irrelevant to the
determination of whether a labor dispute exists or not”).2
We reject the Respondent’s invitation to do so now.
Even were we to apply a “proportionality” requirement
to the circumstances here, we would find that the em-
ployees’ work stoppage was a reasonable response to the
denial of their break period. First, we agree with the
judge that the denial of a scheduled work break is not a
trivial matter. Second, the employees’ actions did not
disproportionately disrupt the Respondent’s operations.
The Respondent’s business is not one that directly serves
the public, and there is no indication that the walkout had
the immediate consequence of a loss of business, cus-
tomers, or income. Cf. Bob Evans Farms, 163 F.3d at
1016 (waitresses’ walkout during a restaurant’s busy
dinner hour found unreasonable means of protest because
of highly disruptive effect on the employer’s business);
Dobbs Houses, Inc. v. NLRB, 325 F.2d 531, 538–539
(5th Cir. 1963) (same). In fact, as the judge found, there
is no credible evidence that the employees took any ac-
tion, other than walking off the job, that could have dis-
rupted the work of those employees who remained at the
facility. Thus, the employees left the Respondent’s facil-
ity upon being ordered to do so immediately after they
stopped work, and the Respondent was able to reorganize
the line on which they had been working so that it could
perform a different project requiring fewer workers.
There is no indication that the walkout interfered in any
way with the four other assembly lines that were operat-
ing at the time.
The Respondent nevertheless argues that it lost several
hours of valuable production time as a result of having to
rearrange the protesting employees’ line. But that loss
resulted from the Respondent’s own order that the em-
ployees leave the premises if they would not return to
work immediately, turning what began as a temporary
work stoppage into a full-blown walkout. It is clear that
the employees who participated in the work stoppage
intended to return to work promptly. Thus, even after
being ordered off the premises, they immediately at-
tempted—without success—to contact the Respondent’s
2 In enforcing the Board’s decision in Trompler, supra, the Seventh
Circuit recognized that, under Board and Supreme Court law, “the only
unprotected concerted activities (provided they relate to the terms and
conditions of employment . . .) are those that are unlawful, violent, in
breach of contract, or otherwise ‘indefensible’ but that the mere fact
that they are not ‘reasonable’ does not forfeit the protection of the Act.”
Trompler v. NLRB, supra (internal quotations in original). Here, the
Respondent has not argued—nor could it—that the employees’ work
stoppage was unlawful, violent, or otherwise indefensible, and it was
plainly related to their terms and conditions of employment.
339 NLRB No. 134
ACCEL, INC. 1053
human resources manager from the parking lot, and they
expressed their desire to resume work when he met with
them the following morning. Whatever losses the Re-
spondent sustained, then, were caused by its own re-
sponse to the work stoppage, not by the work stoppage
itself.3
For these reasons, we find that the employees’ No-
vember 26 work stoppage was protected activity, and
that the Respondent violated Section 8(a)(1) by discharg-
ing the employees for engaging in that activity.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Accel, Inc., Lewis Center,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

Steven Wilson, Esq. for the General Counsel.
Ronald L. Mason, Esq., of Dublin, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Delaware, Ohio, on August 21 and 22, 2002. The United
Food and Commercial Workers Union, Local 1059 (the Union)
filed the charge on December 26, 2001, and the Regional Di-
rector for Region 8 of the National Labor Relations Board (the
Board) issued the complaint on March 28, 2002. The com-
plaint alleges that Accel, Inc. (the Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by dis-
charging eight employees because they concertedly complained
to the Respondent about being denied a work break. The Re-
spondent filed a timely answer in which it denied the substan-
tive allegations of the complaint.

3 We find it unnecessary to address the Respondent’s argument that
the work stoppage was unprotected because the employees did not
articulate a grievance to which management could respond. As the
Respondent acknowledges, Board law imposes no such requirement.
See, e.g., Eaton Warehousing Co., 297 NLRB 958 fn. 3 (1990), enfd.
mem. 919 F.2d 141 (6th Cir. 1990); see also NLRB v. Washington
Aluminum Co., 370 U.S. at 14 (“We cannot agree that employees nec-
essarily lose their right to engage in concerted activities under § 7
merely because they do not present a specific demand upon their em-
ployer to remedy a condition they find objectionable. The language of
§ 7 is broad enough to protect concerted activities whether they take
place before, after, or at the same time such a demand is made.”).
In any event, even were the Board to adopt the Respondent’s view,
the result here would be unchanged. The judge found that an employee
who remained on the job explained to a manager the reason for the
other employees’ walkout as it was occurring. Immediately after walk-
ing out, the employees involved attempted to communicate with a
manager and explain their position. In addition, the written statements
prepared by supervisors immediately after the incident show that the
Respondent was aware of the employees’ complaint about the denial of
their scheduled break. In the circumstances, we find that the participat-
ing employees, who were not represented by any labor organization,
sufficiently articulated their grievance to management.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides fulfillment, assem-
bly, and packaging services at its facility in Lewis Center,
Ohio, where it annually ships and sells products, goods, and
materials valued in excess of $50,000 directly to points outside
the State of Ohio. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent’s business is contract packaging. In No-
vember 2001, when the violations are alleged to have occurred,
the Respondent employed approximately 200–300 individuals.
Its employees have never been represented by a Union. The
alleged discriminatees are eight individuals who immigrated to
this country from Somalia, in most or all cases within the last
several years.
The incident that triggered this litigation occurred at the Re-
spondent’s facility on November 26, 2001, during the night
shift,1 which begins at 9:30 p.m. and ends at 6 a.m. The Re-
spondent had five assembly lines operating at the time, includ-
ing “line 4” where the alleged discriminatees and approxi-
mately 20 other employees were packaging assortments of bath
products in gift baskets. Approximately 1 hour after that shift
started, Janet Fedors, the line leader/coordinator for line 4,
noticed that baskets were accumulating on the floor. Baskets
placed on the floor are “rejects” that have not been properly
assembled. By 11:15 p.m. there were about 50 rejected baskets
on the floor—an unusually high number. Fedors discussed the
problem with Jonathan Hendershott, the production manager
for the shift, who was working approximately 50 to 100 feet
away.
Hendershott approached line 4 to assess the problem at ap-
proximately 11:20 p.m. On the night shift there was a pre-
scheduled 15-minute break starting at 11:30 p.m., a 30-minute
“lunch” break starting at 1 a.m., and a 15-minute break starting
at 4 a.m. Transcript at page (Tr.) 20. After observing the
number of baskets on the floor, Hendershott told Fedors that the
employees on line 4 would not be permitted to take the break
scheduled to begin at 11:30 p.m., but rather would be required
to stay and correctly assemble the rejected baskets. Hender-
shott stated that if the employees finished this task before the
break period ended at 11:45 p.m., they would be permitted to
take the remainder of their first break. Hendershott returned to
the area where he had previously been working, and Fedors told
the employees that they would not be permitted to take their
break until after the rejected baskets were addressed.
1 This shift is also referred to in the record as the “third” shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
At 11:30 p.m. the employees at line 4 did not go on break,
but rather stayed to work on the rejected baskets. By the time
the employees had finished fixing the rejected baskets, it was
11:45 p.m. or later, and the scheduled break period had ended.
One of the alleged discriminatees asked Fedors whether she
would permit the employees to take their break at that time, or
would extend the next break. Fedors answered, “[N]o.” Em-
ployees working on line 4 began talking loudly about being
denied the break, and then a group walked away from the work
area. This group was comprised, in whole or in part, of the
eight alleged discriminatees named in the complaint—Zakaria
Ahmed, Shukri Dahar, Ryaan Farah, Mohamud Hersi, Najma
Mohamed, Safia Mohamed, Liban Mohammud, and Asha
Omar. When Fedors saw the group leaving she asked an em-
ployee what was happening, and the employee reported that the
people who were leaving had said they “didn’t agree” with the
decision to deny them a break and that “if they weren’t going to
get a break, they simply will not work anymore.” Respondent’s
Exhibit (R. Exh.) 7. Fedors told Hendershott that the group had
left their workstations, and then Hendershott observed them
walking towards the area where employees clocked out. Hend-
ershott contacted Peter Nyame, the Respondent’s human re-
sources manager, by phone and told him that employees were
walking off the job. Nyame told Hendershott that if the em-
ployees clocked out without permission they were voluntarily
resigning from their positions and should be directed to surren-
der their timecards and talk to Nyame before attempting to
return to work. Nyame also stated that he would conduct an
investigation and told Hendershott to document what had hap-
pened. In the account he prepared, Hendershott indicated that
he was aware that these employees left because they did not
agree with the decision to deny them the break. (R. Exh. 8.)
After the employees walked away from line 4, but before
they left the facility, Hendershott had at least one exchange
with them. Not long after 11:45 p.m., Hendershott, accompa-
nied by employee James Skaggs, approached the alleged dis-
criminatees. A number of the employees were talking, but they
did not direct their comments to Hendershott and, at any rate,
Hendershott did not understand what they were saying.2 Hend-
ershott told the alleged discriminatees that they had to either
“go to work or clock out” and that “otherwise” he would “call
the police.” (Tr. 225–226.) The alleged discriminatees did not
return to work. Subsequently, Hendershott, believing that the
alleged discriminatees were about to clock out, or already had
done so, said, “[Y]ou’re voluntarily clocking out and you need
to turn in your time cards to . . . [the] security guard . . . and . . .
are not to return.” (Tr. 41.) Skaggs also told the alleged dis-
criminatees that they had to leave. The alleged discriminatees
clocked out, but did not surrender their timecards and at no
time stated to any official of the Company that they wished to
resign. As a result of the walkout, there were not enough em-
ployees to continue the project on line 4. Hendershott and Fe-
dors had to reorganize line 4 to produce a different product—a
time-consuming endeavor.

2 A number of the alleged discriminatees are not fluent in English.
At trial, five of these individuals testified and four of them needed
substantial assistance from a Somali-English interpreter.
After leaving the building, the alleged discriminatees
stopped in the facility’s parking lot where one of them, Farah,
left a voicemail message about the incident for Nyame, after
trying unsuccessfully to reach him by phone. Then all of the
alleged discriminatees went to the house of S. Mohammed,
where Farah again tried unsuccessfully to reach Nyame by
phone and left another voicemail message. At 7 a.m. on the
morning of November 27, Nyame arrived at work and discov-
ered the two messages from Farah. Very shortly thereafter
Nyame and Farah spoke by phone. Nyame directed Farah to
prepare a written account of what had happened, and to bring it
to the office. The alleged discriminatees worked together that
morning to draft the written account requested by Nyame. At
the end of the document the alleged discriminatees listed seven
of their names and noted that there was also “one person that
we are unable to get his name”—apparently alleged discrimina-
tee Mohammud Hersi, who was sleeping.
On November 27, the alleged discriminatees returned to the
facility. Farah and L. Mohammud, along with a third employee
who was not involved in the incident, met with Nyame. The
employees presented Nyame with the written account of the
alleged discriminatees. After Nyame read it, he asked why the
employees had clocked out. L. Mohammud responded that the
employees believed management had treated them unfairly and
had not respected their religion. One or more of the employees
told Nyame that, as practicing Muslims, they needed the 15-
minute rest period in order to pray and break the Ramadan fast.
Nyame told the employees that he would read the statements
prepared by Hendershott and Fedors and meet with others about
the matter. The employees told Nyame that they wanted to
return to work, but Nyame informed them that they were not to
return until the investigation was concluded. Nyame opined
that clocking out was the wrong thing to do.
Subsequently, Nyame reviewed the statements of Hender-
shott and Fedors and also obtained and reviewed statements
from a number of other witnesses to the November 26 incident.
Nyame and Lianne Vannan, senior human resources manager,
met with Hendershott and Fedors to discuss their written state-
ments. Nyame and Vannan then met with the Respondent’s
president, vice president, and chief financial officer. On No-
vember 28, 2002, the Respondent’s vice president informed
Nyame that a decision had been made that the employees who
took part in the walkout had voluntarily resigned their positions
and violated company policy by refusing to perform assigned
duties, and that none of them would be permitted to return to
work.3 Nyame communicated the decision directly to four of
the alleged discriminatees, and the information was passed on
to others in the group. Nyame prepared separation paperwork
stating that each of the alleged discriminatees had been dis-
charged for disciplinary reasons after walking off the job. On
December 26, 2001, the Union filed an unfair labor practices
charge alleging that the eight individuals had been discharged
3 The Respondent’s employee handbook provides that a “refusal to
perform assigned job duties,” is grounds for “written warning and pos-
sible termination.” R. Exh. 9. The Respondent terminated a number of
employees for “walking off” the job before the events of November 26,
2001. R. Exh. 15.
ACCEL, INC. 1055
because they engaged in protected activity by concertedly pro-
testing the denial of their break. In addition, seven of the al-
leged discriminatees filed charges with the Ohio Civil Rights
Commission and the U.S. Equal Employment Opportunity
Commission alleging that the Respondent had discriminated
against them on the basis of religion and national origin.
B. Credibility
The testimony of the witnesses for the General Counsel and
the witnesses for the Respondent is largely consistent regarding
the events of November 26 for the period prior to 11:45 p.m.
However, the versions of the two groups of witnesses diverge
rather dramatically from that point on. I do not believe that
either group of witnesses was being completely truthful and on
disputed matters I have sometimes credited the testimony of
witnesses for the general counsel and sometimes testimony of
witnesses for the Respondent, based on considerations of de-
meanor, plausibility and consistency with the record as a
whole.4 I was not impressed with the demeanor of key wit-
nesses for either side. Hendershott and Fedors, although they
testified calmly, were very guarded and did not appear forth-
coming. The alleged discriminatees who testified, on the other
hand, sometimes responded evasively, or with undue defen-
siveness or petulance to cross-examination questions.
Moreover, both groups of witnesses gave testimony that was,
in significant respects, at odds with the written accounts they
themselves prepared in the hours after the incident. For exam-
ple, Fedors, in support of the Respondent’s contention that the
reason for the alleged discriminatees’ protest was not commu-
nicated to the Respondent, testified that when she asked why
the employees were walking off the job, employee Edmar San-
tos said, “I don’t know, they’re just going home.” (Tr. 327,
334.) She denied that Santos informed her that the alleged
discriminatees were leaving because they disagreed with the
decision regarding the break. Id. However, in the written ac-
count that Fedors prepared shortly after the incident, she stated
that Santos had said: “[T]he eight people didn’t agree with my
reply [denying them a break]. They said that if they weren’t
going to get a break, they simply will not work anymore.” (R.
Exh. 7.) Similarly, Hendershott testified that Fedors had not
told him why the alleged discriminatees walked off the job, that
he did not try to find out why the alleged discriminatees did
that, and that all he heard about the incident during the shift
was a rumor that the alleged discriminatees had tried to get
another employee to leave. (Tr. 29, 31–33.) However, in the
written account that Hendershott prepared shortly after the
incident, he stated that Fedors told the employees that there
would be no break, “and so those people who did not agree,
clocked out.” (R. Exh. 8.)
Similarly, the testimony of the alleged discriminatees was
contrary to the written account they prepared the morning of

4 See American Pine Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (“A
trier of fact is not required to accept the entirety of a witness’ testi-
mony, but may believe some and not all of what a witness says.”), enf.
granted in part, denied in part 164 F.3d 867 (4th Cir. 1999); Excel
Containers, Inc., 325 NLRB 17 fn. 1 (1997) (nothing is more common
in all kinds of judicial decisions than to believe some and not all, of a
witness’ testimony).
the incident. A number of the alleged discriminatees claimed
that before they clocked out on November 26 they repeatedly
explained to Hendershott that, as Muslims, they needed the
break in order to pray and eat. (Tr. 100, 103–104, 159, 225.)
Hendershott denied that he was told this, and stated that the
alleged discriminatees said nothing to him. (Tr. 29–30, 349.)
The alleged discriminatees’ written account is more consistent
with Hendershott’s version, stating that during the incident
“there was no communication between [Hendershott] and us
whatsoever,” and indicating that the alleged discriminatees had
not had an opportunity to tell Hendershott “why that 15 minutes
was so critical to us.” General Counsel’s Exhibit (GC Exh.) 2;
General Counsel’s Exhibit 3.5
I also conclude, based on the record, that the alleged dis-
criminatees falsely testified that the first break was critical to
them for religious reasons. The alleged discriminatees who
testified stated that they were all practicing Muslims and
needed 5 minutes or less to say the night prayer during their
first break. According to them, all eight of the alleged dis-
criminatees always said the night prayer in the Respondent’s
locker room during the first break. However, the Respondent
called multiple nonmanagement witnesses who frequented the
locker room during the first break of the night shift and who
testified that they had not seen a single one of the alleged dis-
criminatees praying in the locker room even once. These wit-
nesses included another Somali employee who was a practicing
Muslim, and an employee who was posted in the locker room
as a security guard during the night shift 1 day a week. The
record is devoid of testimony from any disinterested witness to
corroborate the testimony of the alleged discriminatees that
they prayed in the locker room during the first break. The
locker room was a relatively small and very public place. The
prayers that the alleged discriminatees described involved
kneeling on the floor, and would, I believe, have been obvious
to others. Under these circumstances, I find it wholly implau-
sible that such activity would have gone completely unnoticed
by other employees, especially if the alleged discriminatees
engaged in it with anything like the regularity they claim.
Moreover, the accounts of the alleged discriminatees about the
conduct of the prayers were contradictory. For example, Farah
stated that the alleged discriminatees did not all pray at one
time, but rather went to pray “one at a time” (Tr. 96), whereas
Ahmed stated that the men prayed together in a group and the
women prayed together in another group. (Tr. 231–232.)
In addition, the alleged discriminatees’ own description of
their prayer practices contradict the assertion that it was critical
that they say the night prayer during the first break. Farah and
Ahmed testified that the night prayer could be said at any time
after sundown (about 6 p.m.) and prior to the morning prayer at
sunrise the next day. (Tr. 136–138, 234.) Under those con-
straints, the alleged discriminatees had over 3 hours to say the
night prayer prior to the start of their shift. Even if they had
planned to say the night prayer during the first break, and were
not permitted to do so, they would still have been able to say
the prayer during their 30-minute break at 1 a.m. or their 15-
minute break at 4 a.m. Based on the record, I find that the tes-
5 GC Exh. 3 is a typed version of GC Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
timony of the alleged discriminatees that they always prayed
during the first break, and that it was essential that they do so,
was false.
The alleged discriminatees also stated that, for religious rea-
sons, it was critical that they have an opportunity to eat during
the first break on the day in question. They noted that Novem-
ber 26, 2001, fell during the Muslim holy month of Ramadan,
when their religion prohibits eating and drinking from sunrise
to sunset. However, according to the testimony of the alleged
discriminatees themselves, they could break the fast starting at
approximately 6 p.m. Therefore, they had a period of several
hours during which to find time to eat and drink prior to begin-
ning work at 9:30 p.m. Moreover, when they walked away
from the workstation after 11:45 p.m., it was only a little over
an hour before their 1 a.m. “lunch” break. They could have
eaten during that break, as well as during the break scheduled
for 4 a.m. Under these circumstances, I do not credit the testi-
mony of the alleged discriminatees that the denial of the break
significantly impacted on their religious practices regarding the
Ramadan fast.
C. The Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by terminating Zakaria Ahmed, Shukri Da-
har, Ryaan Farah, Mohamud Hersi, Najma Mohamed, Safia
Mohamed, Liban Mohammud, and Asha Omar because they
concertedly complained to the Respondent regarding the wages,
hours, and working conditions of the Respondent’s employees
by protesting to supervisors about being denied a work break.6
III. ANALYSIS AND DISCUSSION
In order to establish a violation of Section 8(a)(1) of the Act,
the General Counsel must show: that the employees engaged in
concerted activity; that the employer knew the concerted nature
of the activity; that the concerted activity was protected by the
Act; and that the employer’s decision to take the challenged
adverse action was motivated by the employees’ protected con-
certed activity. Meyers Industries, 268 NLRB 493, 497 (1984),
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C Cir.
1985), cert denied 474 U.S. 971 (1985), decision on remand
281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C. Cir. 1987),
cert denied 487 U.S. 1205 (1988); see also Kathleen’s Bake-
shop, LLC, 337 NLRB 1081, 1089 (2002).
The General Counsel easily establishes the elements of a vio-
lation. The eight alleged discriminatees walked off the job
together in protest over a term and condition of employment—
the denial of a regularly scheduled break—that affected all
employees on line 4. Hickman Garment Co., 172 NLRB 1168,
1173 (1968) (elimination of a rest period is a condition of em-
ployment), enfd. 408 F.2d 379 (6th Cir. 1969), cert. denied 396
U.S. 838 (1969). The walkout followed a discussion between
employees, who then walked out with and in reliance on one

6 At the start of the trial, I granted the General Counsel’s unopposed
motion to amend the complaint in three minor respects. The reference
to Janet Fedors in par. 5 was deleted, the spelling of one of the alleged
discriminatees names was corrected, and the employees’ termination
date in par. 6(b) was changed from “on or about November 27, 2001,”
to “on or about November 28, 2001.”
another. It is plain that this joint walkout was “concerted,” see,
e.g., Federal Security, Inc., 318 NLRB 413, 418 (1995), enf.
denied on other grounds 154 F.3d 751 (7th Cir. 1998); Trident
Recycling Corp., 282 NLRB 1255, 1261 (1987), and, indeed,
the Respondent has made no argument to the contrary. It is
equally plain that the Respondent was aware of the concerted
nature of the walkout. Fedors and Hendershott both saw the
employees walk off as a group and both were aware that the
employees took this action because they disagreed with the
decision to deny them a scheduled break. When Hendershott
spoke to the alleged discriminatees after they left line 4, he
addressed his comments to them as a group, implicitly recog-
nizing that they were undertaking the action jointly. Regarding
the requirement that the concerted activity be “protected,” it is
well settled that an employee walkout to protect the denial of a
break is protected activity. P.B. & S. Chemical Co., 224
NLRB 1 (1976); Hickman Garment Co., 172 NLRB at 1173;
see also SDC Investment, 299 NLRB 779, 785 (1990) (employ-
ees engaged in protected concerted activity when they left the
workplace to protest a change in the timing of their
lunchbreak). Lastly, the record leaves no doubt that the Re-
spondent’s decision to terminate the employees was motivated
by the protected concerted activity. Nyame, the Respondent’s
human resource manager, testified that the walkout was the
reason that the alleged discriminatees were terminated (Tr.63),
and his testimony is corroborated by the Respondent’s person-
nel records (GC Exh. 4).7 Thus, the General Counsel has estab-
lished that the Respondent violated Section 8(a)(1) by terminat-
ing the eight alleged discriminatees.
The Respondent contends that the walkout should be found
to be unprotected for essentially two reasons: the discrimina-
tees did not “voice their concerns to the employer prior to leav-
ing their jobs” (R. Br. at 15); and the walkout was a dispropor-
tionately disruptive response to a “trivial grievance” “over
working conditions,” Id. at 16–17. The Respondent cites no
Board precedent to support these arguments for finding the
walkout to be unprotected.8 Indeed, the Board’s decisions are
7 I conclude that the employees did not voluntarily resign by “clock-
ing out” prior to the end of their shift. The employees clocked out only
after Hendershott threatened to call the police if they did not either
abandon their concerted activity by returning to work, or clock out.
Shortly after exiting the building they attempted to talk to Nyame about
returning to work. That morning the employees came to the facility
and spokespersons for the group told Nyame that they wanted to keep
working for the Respondent. There is no claim that any of the alleged
discriminatees ever stated that they wished to resign, and their actions
belie any suggestion that they voluntarily did so.
8 The Respondent acknowledges that “Board law on the issue is un-
favorable to the Company’s position,” and states that that even if the
administrative law judge accepts the Respondent’s version of the facts,
he might still “follow Board precedent and find that the [alleged dis-
criminatees’] actions were a walk-out over their loss of a paid break
and such activity constituted protected, concerted activity.” R. Br. at
14. The Respondent argues, however, that the Board’s concept of
“what is considered to be Section 7(a) conduct should be modified”
based on decisions of “Federal Courts across the nation.” Id. That
argument is for the Board to consider, not me. I am bound to apply
established Board precedent that neither the Board nor the United
States Supreme Court has reversed. Herbert Industrial Insulation
ACCEL, INC. 1057
contrary. Regarding the Respondent’s first contention, it is
clear that “the act of going on strike is protected concerted ac-
tivity, regardless of whether the employer had been given no-
tice of the strike, or presented with a prior demand for a change
in working conditions.” Americorp, 337 NLRB 657, 659
(2002); see also Benesight, Inc., 337 NLRB 282 (2001) (“It is
well settled that ‘[t]he Act protects the right of employees to
engage in concerted activities, including the right to strike
without prior notice.’”), quoting Bethany Medical Center, 328
NLRB 1094 (1999); see also Vic Tanny International, Inc., 232
NLRB 353 (1977) (“[T]he spontaneous banding together of
employees in the form of a work stoppage as a manifestation of
their disagreement with their employer’s conduct is clearly
protected activity.”), enfd. 662 F.2d 237 (6th Cir. 1980). At
any rate, the written statements that Fedors and Hendershott
prepared immediately after the incident show that both were
well aware that the employees walked out as a form of com-
plaint about the denial of the scheduled break. Indeed, given
the course of events here I have no trouble concluding that this
was obvious to all concerned when the employees started away
from line 4, and certainly it was clear to Hendershott when he
approached the employees inside the facility and told them to
clock out.
The Respondent’s other argument—that the walkout was not
protected because it was a “disproportionate” response to a
“trivial grievance”—is also contrary to Board precedent and I
reject it. In Trompler, Inc., 335 NLRB 478, 480 (2001), the
Board stated:

[I]f employees are protesting work conditions, . . . those em-
ployees can protest by any legitimate means, including strik-
ing. The fact that some lesser means of protest could have
been used is immaterial. We would not second-guess the em-
ployees’ choice of means of protest.

See also Plastilite Corp., 153 NLRB 180, 183–184 (1965)
(“[W]e must respectfully disagree with any rule which would
base the determination of whether a strike is protected upon its
reasonableness in relation to the subject matter of the ‘labor
dispute.’”), enfd. 375 F.2d 343 (8th Cir. 1967). In Trompler,
the Board explicitly discussed the modification to Board law
advocated by the Respondent here, and concluded unanimously
that it would “respectfully adhere to Board precedent.” That
precedent includes multiple cases in which the Board has held
that employees who walk off the job to protest the denial or
rescheduling of a work break are engaged in concerted pro-
tected activity, despite the disruptive nature of their protest.
SDC Investment, supra; P.B. & S. Chemical Co., supra; Hick-
man Garment Co., supra. I found no credible evidence that the
discriminatees took any action, other than walking off the job,
to disrupt the work of those employees who remained at the
facility. Thus, I must reject the Respondent’s contention that
the discriminatees’ walkout was unprotected because it was too
disruptive a response to a trivial grievance.

Corp., 312 NLRB 602, 608 (1993); Lumber & Mill Employers Assn.,
265 NLRB 199 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied
469 U.S. 934 (1984); Los Angeles New Hospital, 244 NLRB 960, 962
fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
Moreover, even under the Respondent’s “trivial grievance”
standard, the Respondent would not prevail. Scheduled break
periods are not trivial matters. They are important, especially
to those who work on assembly lines and may have little or no
other opportunity to attend to personal needs during their shifts.
The Respondent’s contention that the denial of a 15-minute
break is trivial is based on the wage rate of the affected em-
ployees ($10 to $10.25) and the observation that 15 minutes
worth of wages for the entire group of eight discriminatees
amounts to only $20.06. (R. Br. at 17). What the Respondent
fails to recognize is that a period of rest was at issue here, not
wages.9 The magnitude of an employee’s need for such a rest
period is not determined by the size of his or her paycheck.
For the reasons discussed above I conclude that the Respon-
dent violated Section 8(a)(1) of the Act when it terminated
Zakaria Ahmed, Shukri Dahar, Ryaan Farah, Mohamud Hersi,
Najma Mohamed, Safia Mohamed, Liban Mohammud, and
Asha Omar because they concertedly protested the Respon-
dent’s decision to deny them a work break.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act, by terminating Zakaria Ahmed,
Shukri Dahar, Ryaan Farah, Mohamud Hersi, Najma Mo-
hamed, Safia Mohamed, Liban Mohammud, and Asha Omar
because they concertedly protested the Respondent’s decision
to deny them a work break.
3. The Respondent has violated Section 8(a)(1) of the Act by
terminating Zakaria Ahmed, Shukri Dahar, Ryaan Farah,
Mohamud Hersi, Najma Mohamed, Safia Mohamed, Liban
Mohammud, and Asha Omar because they concertedly pro-
tested the Respondent’s decision to deny them a work break.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
9 The Respondent has not claimed that it offered to allow the em-
ployees to take their break if they would forgo 15 minutes worth of
wages.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
ORDER
The Respondent, Accel, Inc., Lewis Center, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected activity by concertedly pro-
testing their working conditions.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Zakaria
Ahmed, Shukri Dahar, Ryaan Farah, Mohamud Hersi, Najma
Mohamed, Safia Mohamed, Liban Mohammud, and Asha
Omar full reinstatement 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.
(b) Make Zakaria Ahmed, Shukri Dahar, Ryaan Farah,
Mohamud Hersi, Najma Mohamed, Safia Mohamed, Liban
Mohammud, and Asha Omar whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Lewis Center, Ohio, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In

mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 26, 2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 discharge or otherwise discriminate against
any of you for engaging in concerted protected activity by pro-
testing your working conditions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Zakaria Ahmed, Shukri Dahar, Ryaan Farah, Mohamud
Hersi, Najma Mohamed, Safia Mohamed, Liban Mohammud,
and Asha Omar full reinstatement 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 privi-
leges previously enjoyed.
WE WILL make Zakaria Ahmed, Shukri Dahar, Ryaan Farah,
Mohamud Hersi, Najma Mohamed, Safia Mohamed, Liban
Mohammud, and Asha Omar whole for any loss of earnings
and other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Zakaria Ahmed, Shukri Dahar, Ryaan Farah, Mohamud
Hersi, Najma Mohamed, Safia Mohamed, Liban Mohammud,
and Asha Omar, 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.

ACCEL, INC.