Cambro Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 634 (N.L.R.B. 1993)

634
312 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 26, 1991, Administrative Law Judge William J.
Pannier III issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
2 All subsequent dates are in 1991, unless otherwise stated.
3 Pulido himself did not testify.
4 There is no allegation that these supervisory remarks were illegal.
Cambro Manufacturing Company and United Elec-
trical, Radio, and Machine Workers of Amer-
ica. Case 21–CA–27795
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented here is whether the judge
correctly concluded that the Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act by
discharging 11 employees who engaged in an in-plant
work stoppage.1 The judge rejected the Respondent’s
defense that it legitimately relied on the employees’
unprotected failure to comply with a management di-
rective to return to work or to leave the Employer’s
property.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent
with this Decision and Order.
For the reasons set forth below, we reverse the
judge and find that the Respondent’s discharge action
was lawful.
The Respondent has over 400 production and main-
tenance employees on three work shifts. No labor or-
ganization represents these employees. A personnel
handbook details the Respondent’s ‘‘Open Door Pol-
icy’’ for the presentation and discussion of employee
grievances.
This policy states in relevant part:
Employees are encouraged to see their imme-
diate supervisor with questions relating to the job
or problems they may be experiencing. The super-
visor’s assistance may involve getting the aid of
other persons.
If, after meeting with the immediate supervisor,
an employee feels the question or problem is not
or will not be resolved, that employee may re-
quest a meeting with the next higher authority in
the chain of command up to and including the
company president.
If an employee believes the immediate super-
visor is the source of the problem and he/she feels
uncomfortable about approaching the supervisor,
the employee may request a meeting with the su-
pervisor who is the next higher authority in the
chain of command.
At some point in October 1991,2 a group of second-
shift employees successfully resolved certain com-
plaints after meeting directly with General Manager
Steve Thompson. On Thursday, October 25, 1991, a
group of 30 to 35 third-shift employees had a similar
grievance meeting with Thompson after the 7:30 a.m.
end of their shift. Principal complaints concerned the
treatment of employees by Supervisor Victor Lopez
and the selection of newly hired employee Gabriel Se-
pulveda for training as a leadperson. Thompson told
the employees that he would investigate and respond
to their complaints within 2 or 3 days. When the third
shift began work at 11:30 p.m. on Monday, October
29, the third working day since the meeting, Thomp-
son had not yet conveyed any response.
Prior to the third shift’s first workbreak, employee
Jose Juventino Pulido was summoned to a meeting in
the office of Supervisor Ron Meredith, who was Su-
pervisor Lopez’ immediate superior. Meredith, Lopez,
and Second-Shift Supervisor Jose Redondo were in the
office with Pulido. The Respondent’s officials inquired
about the reasons for Pulido’s opposition to the selec-
tion of Sepulveda for leadperson training. After the
meeting, according to the testimony of other third-shift
employees,3 Pulido alleged that the supervisors had
identified him as an employee leader, told him not to
get the employees excited, and said they would do
something to him if he continued getting people rat-
tled.4
Employees discussed the Pulido meeting and prior
grievances during the third-shift break at 1:30 a.m. At
the end of the break, several employees met with
Lopez in the production area. They raised numerous
problems, including Sepulveda’s selection for
leadperson training. Lopez then determined to meet
with employees one at a time to discuss these prob-
lems. He held three such meetings.
Meanwhile, between 2:30 and 3 a.m., the 11 alleged
discriminatees and employee Antonio Lopez ceased
working. They met with Supervisor Lopez, who di-
rected them to return to work. The employees declined
to do so until they had talked to Plant Manager
Thompson or the Respondent’s owner. Thompson lived
25 miles from the plant. He normally worked in the
plant only during the period from 7 a.m. to 7 p.m. The
Respondent’s owner was an elderly, infirm man who
did not drive. The employees knew that neither official
would usually appear at the plant during their shift.
Supervisor Lopez told the employees again to go back
to work, explaining that Thompson or the owner would
show up early in the morning so that a meeting could
be held at that time to discuss the employees’ prob-
lems. Lopez also explicitly told employees that they
635CAMBRO MFG. CO.
5 Tr. 346. In light of this uncontroverted testimony, the judge
clearly erred in stating that Thompson did not affirmatively identify
the actual reason or reasons for the Respondent’s termination deci-
sion.
should clock out if they did not intend to return to
work. At this point, Lopez left the production area.
The 12 employees continued their work stoppage. Both
before and after the 3:30 a.m. lunchbreak, these pro-
testers remained in the employee dining room or in the
adjacent working corridor separating that room from
Thompson’s office.
At approximately 4 to 4:30 a.m., Supervisor Lopez
telephoned Thompson with news of the work stoppage.
Pursuant to Thompson’s instructions, Lopez again told
the employees to go back to work or to clock out and
return at 7:30 a.m. for a meeting with Thompson. Em-
ployee Antonio Lopez did return to work at this time.
The other 11 employees remained in and around the
employee dining room.
Thompson arrived at the plant about 6 a.m. He met
with Supervisor Lopez first, then with the 11 employ-
ees who had ceased work. The employees told him
that he had not responded to their problems within 2
or 3 days as promised. Thompson concluded this meet-
ing by announcing that the employees were suspended.
He soon gave each individual a notice of suspension
‘‘for failure to follow instructions pending an inves-
tigation.’’ Thompson told them either to call or return
to Respondent’s facility that afternoon. The suspended
employees persisted in remaining within the plant until
after Thompson called the police. They then left, os-
tensibly because one member of their group felt ill.
During the morning, Thompson met with manage-
ment officials and legal counsel. A decision was made
to terminate the 11 employees. That afternoon, each
suspended employee received a personnel notice of ter-
mination for insubordination because of ‘‘refusal to re-
turn to work or leave company property.’’ In his testi-
mony, Thompson explained that
[w]e terminated the employees because they—
they stopped their work and they stopped their
work because they were unhappy with one of our
leads. They—We found ourselves in the middle of
a grievance procedure, it wasn’t at the end or at
the beginning, it was in process. They would not
go back to work so that we could continue on the
grievance procedure, they wouldn’t leave the plant
and they would not clock out and that is the rea-
son that we terminated them.5
Thompson also specifically testified that he would not
have fired the employees if they had either returned to
work or had clocked out and returned for a meeting at
7:30 a.m.
The judge found that the employees were engaged
in the statutorily protected activity of protesting var-
ious aspects of their working conditions. He further
found that the employees did not forfeit the Act’s pro-
tection as a consequence of their choice of an in-plant
work stoppage as the means of protest. The judge
characterized this action as reasonable, nondisruptive,
limited, and in accord with the Respondent’s ‘‘Open
Door Policy.’’ Furthermore, even assuming arguendo
that the work stoppage became unprotected at some
point, the judge rejected the Respondent’s claim that
its actual motivation in discharging the alleged
discriminatees was related to the in-plant means of
protest. Accordingly, he concluded that the Respondent
violated Section 8(a)(1) when it discharged the 11 em-
ployees.
We agree with the judge that the third-shift employ-
ees had a Section 7 right to protest the failure to con-
sider seniority in selecting Sepulveda for leadperson
training. We conclude, however, that the in-plant work
stoppage reached a point at which it was no longer a
protected means of protest. We further disagree that
there is any evidentiary basis for finding that the Re-
spondent discharged the alleged discriminatees for any
reason other than their failure to abide by the Respond-
ent’s instructions either to return to work or to clock
out, leave the plant, and return later for a meeting with
Plant Manager Thompson.
The Seventh Circuit has recently summarized the
legal framework for analyzing the extent to which in-
plant work stoppages are protected.
The concerted activity at issue here (i.e., an on-
the-job work stoppage) is a form of economic
pressure entitled to protection under Sec. 7 of the
Act. See NLRB v. Washington Aluminum Co., 370
U.S. 9, 15 (1962) (work stoppage to protest lack
of heat during harsh winter protected activity
under Sec. 7). Not every work stoppage is pro-
tected activity, however; at some point, an em-
ployer is entitled to assert its private property
rights and demand its premises back. The line be-
tween a protected work stoppage and an illegal
trespass is not clear-cut, and varies from case to
case depending on the nature and strength of the
competing interests at stake. See Hudgens v.
NLRB, 424 U.S. 507, 522 (1976); NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105, 112 (1956).
Drawing that line requires courts to balance
‘‘whether the means utilized by the employee in
protesting, when balanced against the employer’s
property rights, are entitled to the protection of
the Act.’’ Peck, Inc., 226 NLRB 1174, 1175
(1976) (Member Penello, concurring); compare
Golay & Co. v. NLRB, 371 F.2d 259, 262 (7th
Cir. 1966) (work stoppage protected because em-
ployer refused to discuss the matter and hastily
discharged the workers without any warning to
leave the property), cert. denied 387 U.S. 944
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Molon Motor & Coil Corp. v. NLRB, 965 F.2d 523 (7th Cir.
1992).
7 As previously noted, Thompson told the third-shift employees at
this Thursday morning meeting (Oct. 25) that he would respond to
their grievances in 2 to 3 days. Our dissenting colleague asserts that
by Tuesday, October 30, these employees had waited 5 days for a
response from Thompson, and that Thompson’s response was over-
due. The judge found that the employees reasonably believed that
Thompson was referring to 2 to 3 calendar days. We disagree with
this finding. After Thompson made his promise, the third-shift em-
ployees worked from 11:30 p.m. to 7:30 a.m. on Thursday-Friday,
Sunday-Monday, and Monday-Tuesday. They did not work on Fri-
day-Saturday or Saturday-Sunday, the second and third calendar days
after the Thursday meeting. Furthermore, Thompson did not regu-
larly arrive for work at the plant until 7 a.m. on Monday. Under
these circumstances, there would have been no reason whatsoever
for the third-shift employees to believe that Thompson planned to re-
spond to their grievances on days when neither they nor he were
scheduled to work. Instead, they reasonably should have understood
that Thompson was referring to working days. The third-shift work
stoppage involved here occurred during the third workday for that
shift after the Thursday meeting. Consistent with his earlier state-
ment at that meeting, Thompson agreed to meet with employees on
Tuesday morning, October 30, at the end of this shift. Further, even
if employees reasonably believed that the meeting should have been
held at least on Monday at 7:30 a.m., that would not justify continu-
ation of an in-plant work stoppage on Tuesday morning, after
Thompson’s offer on Tuesday to meet later that morning.
(1967); Roseville Dodge, Inc. v. NLRB, 882 F.2d
1355, 1359 (8th Cir. 1989) (peaceful work stop-
page on the shop floor, lasting several hours, pro-
tected, concerted activity); NLRB v. Pepsi-Cola
Bottling Co., 449 F.2d 824, 829–830 (5th Cir.
1971) (peaceful, unobtrusive work stoppage pro-
tected activity and employer’s order to leave plant
hindered ability to present grievances), cert. de-
nied 407 U.S. 910 (1972) with NLRB v. Fansteel
Metallurgical Corp., 306 U.S. 240, 252, 255
(1939) (employees who seized and retained pos-
session of employer’s plant for several days en-
gaged in illegal trespass); Advance Indus. Div.-
Overhead Door Corp. v. NLRB, 540 F.2d 878,
885 (7th Cir. 1976) (workers who neglected ordi-
nary grievance procedure and refused to leave
premises after shift ended engaged in illegal tres-
pass); Cone Mills Corp. v. NLRB, 413 F.2d 445
(4th Cir. 1969) (workers who continued their in-
plant work stoppage in spite of established griev-
ance procedures and a hearing from management
engaged in illegal trespass); Peck, Inc., 236
NLRB at 1180 (workers who occupied the em-
ployee lunchroom after shift ended engaged in il-
legal trespass).6
The in-plant work stoppage here was peaceful, fo-
cused on several specific job-related complaints, and
caused little disruption of production by those who
continued to work. In such circumstances, the employ-
ees were entitled to persist in their in-plant protest for
a reasonable period of time. Indeed, the Respondent’s
officials permitted them to do so. The situation, how-
ever, reached a point at which the Respondent was en-
titled to reclaim the use of its entire premises.
In our view, this point arrived after Supervisor
Lopez returned from his telephone conversation with
Plant Manager Thompson and directed the protesters
for a second time to return to work or to clock out,
leave the premises, and return for the desired meeting
with Thompson at 7:30 a.m. This directive did not im-
pair the employees’ protected right to present their
grievances. They had already discussed their problems
among themselves and with Supervisor Lopez. They
had demanded, and were lawfully denied, an unprece-
dented predawn meeting with the Respondent’s plant
manager or owner. They were assured the opportunity,
in full accord with the Respondent’s open door policy,
to meet in just a few hours with Thompson for further
discussion of their complaints. They had met with him
in the very same manner and at the very same time on
October 25.7
Contrary to our dissenting colleague, we find NLRB
v. Pepsi-Cola Bottling Co. of Miami, 449 F.2d 824
(5th Cir. 1971), and Roseville Dodge v. NLRB, 882
F.2d 1355 (8th Cir. 1989), to be entirely consistent
with our analysis here. In each of those cases, the
court emphasized the absence of an established griev-
ance procedure in finding that an employer unduly re-
stricted the protected right of employees, engaged in a
peaceable in-plant strike, to present their grievances.
Here, Supervisor Lopez assured in-plant striking em-
ployees the opportunity to meet with the Respondent’s
president in accord with past practice under the open-
door policy. Lopez’ subsequent direction that employ-
ees return to work or leave the plant and return later
for the meeting served the Respondent’s immediate in-
terest in maintaining its established grievance proce-
dure and placed no undue restriction on those employ-
ees’ right to present grievances within a few hours pur-
suant to that procedure.
We find that the employees’ failure to return to
work or to leave the plant after Lopez’ second direc-
tive resulted in forfeiture of the Act’s protection. Fur-
ther in-plant refusals to work served no immediate pro-
tected employee interests and unduly interfered with
the employer’s right to control the use of its premises.
Accordingly, the Respondent could lawfully discharge
the 11 employees for continuing their in-plant work
stoppage.
As indicated, however, the judge found that the em-
ployees’ failure to return to work or to leave the prem-
ises was not the real reason for their discharge. Al-
though he did not expressly say so, the judge appar-
ently believed that the Respondent actually sought to
retaliate generally against the protected expression of
grievances or against the protected refusal to work,
without real regard to whether the refusal occurred on
637CAMBRO MFG. CO.
1 449 F.2d 824, 829 (5th Cir. 1971), enfg. 186 NLRB 477 (1970).
2 882 F.2d 1355 (8th Cir. 1989), enfg. sub nom. City Dodge Cen-
ter, 289 NLRB 194 (1988).
or off the Respondent’s property. We find no evi-
dentiary basis for such a belief.
Contrary to the judge, the record overwhelmingly
supports the Respondent’s claim that it discharged em-
ployees only for refusing to leave the plant if they
chose to exercise their protected right to refuse to work
in support of their grievances. In this regard, as pre-
viously noted, the judge completely overlooked
Thompson’s affirmative testimony that he discharged
the 11 alleged discriminatees because ‘‘[t]hey wouldn’t
go back to work so that we could continue on the
grievance procedure, they wouldn’t leave the plant and
they wouldn’t clock out and that’s the reason that we
terminated them.’’ This testimony is fully consistent
with the stated reason for discharge in the personnel
notice given to each employee on October 30. Further-
more, the notion that the Respondent sought to punish
employees for their message or merely for refusing to
work, rather than for their prolonged in-plant protest,
is rebutted by the Respondent’s failure to take any dis-
ciplinary action against any of the other third-shift em-
ployees who voiced complaints. Most notable among
this group of unpunished protestants was employee
Antonio Lopez, who did abandon the work stoppage
and return to work after Supervisor Lopez’ second di-
rective.
In sum, we find that the 11 employees who contin-
ued their in-plant work stoppage for an unreasonable
time after being told to return to work or to continue
their protest off the Respondent’s premises were en-
gaged in unprotected activity. We further find that the
Respondent discharged these employees because they
engaged in such unprotected activity. We therefore
conclude that the Respondent has not violated the Act,
and we shall dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I find that the Respond-
ent unlawfully discharged 11 employees for engaging
in a protected in-plant work stoppage.
In my view, the strike here is analogous to that in
NLRB v. Pepsi-Cola Bottling Co. of Miami.1 There, the
court affirmed the Board’s finding that the in-plant
strikers had been engaged in protected activity and had
been unlawfully discharged. The employees, who were
protesting the employer’s refusal to reinstate some ear-
lier discharged employees, sat down in the plant and
refused the employer’s demand that they either return
to work or leave the plant, the same demand made to
and refused by the employees in question here. Like
the instant employees, the employees in Pepsi-Cola
made no attempt to seize the plant or machinery, nor
did they engage in violence, make threats of violence,
or damage plant equipment. Nevertheless, they were
discharged for engaging in what the employer charac-
terized as an ‘‘illegal sitdown strike.’’ In finding the
discharges to be unlawful, the court found no evidence
that the employees had claimed to hold the plant prem-
ises in defiance of the employer’s right of possession,
or that they had interfered with the work performance
of the nonstrikers. The court specifically rejected the
employer’s argument—also propounded here—that the
strikers had become illegal trespassers, beyond the
scope of the Act’s protection, when they refused to
comply with the employer’s demand that they either
return to work or leave the plant. The court held that
an employer cannot convert a protected in-plant work
stoppage into an unprotected trespass by the simple ex-
pedient of ordering his employees from the plant,
where such an order serves no immediate employer in-
terest and unduly restricts the employees right to
present grievances to their employer.
Similarly, in Roseville Dodge v. NLRB,2 the court
affirmed the Board’s finding that employees who had
been engaging in a protected in-plant work stoppage
did not lose their protection when they remained in the
plant for a couple of hours after two of their fellow
strikers had obeyed the employer’s order to leave the
plant. The court held that not every strike in which
strikers remain on the premises amounts to an unlawful
deprivation of an employer’s rights. Employees may
remain on an employer’s property ‘‘in a sincere effort
to meet with management concerning a protest over
wages without being deprived of the protection of the
Act.’’
The court found in Roseville that—as here—there
was no evidence suggesting that the employees seized
any portion of the employer’s property, engaged in
acts of violence, caused any property damage, or inter-
fered with other employees. The court found that the
employees’ activities remained protected because they
waited peacefully on the employer’s premises to
present their complaints and because their conduct did
not amount to a significant occupation of the premises.
To hold otherwise would render the protection set forth
in Section 7 of the Act meaningless.
Applying the principle that an employer cannot con-
vert a protected in-plant work stoppage into an unpro-
tected trespass simply by ordering the strikers to leave
the plant, unless the order to leave serves an imme-
diate employer interest and does not unduly restrict the
employees in their right to present grievances to their
employer, the judge here found that the record failed
to establish the existence of any such immediate em-
ployer interest in evicting the strikers. He found no
evidence that the strikers ever claimed to hold the
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Here my colleagues have lost sight of the fact that one of the
employees’ biggest professed problems was Supervisor Lopez him.
plant in defiance of the Respondent’s right of posses-
sion; no evidence that the strikers were interfering in
any way with the ongoing work of the employees who
had chosen not to join in the strike; no evidence that
the presence of the relatively few strikers in the dining
room and immediately surrounding area interfered in
any way with employee access to the dining room, or
the performance of work in the adjacent storage area;
no evidence of property damage; no evidence of
threats or acts of violence; and no evidence of loss of
production, other than the work that the strikers them-
selves did not do while they were engaged in their
work stoppage.
The judge further found that the length of the in-
plant work stoppage (about 4 hours) was not per se ex-
cessive, and that it did not, without more, strip the
strikers of the Act’s protection. He noted that, at least
prior to their ultimately being suspended by General
Manager Thompson, the employees had never given
any indication that they intended to remain in the Re-
spondent’s dining room for an indefinite or prolonged
time. On the contrary, they told Supervisor Lopez that
they intended to remain in the dining room only until
the general manager or owner could get to the plant
to meet with them and hear their grievances. The judge
found no evidence that would support even an infer-
ence that the strikers would have remained on strike
following such a meeting with higher management.
Based on all of these considerations, the judge found
that the Respondent had the ability effectively to bring
the work stoppage to an end at any time, by General
Manager Thompson or the Respondent’s owner com-
ing to the plant to meet with the strikers. Thus, the
judge found that the Respondent’s order to the strikers
to leave the plant had not been shown to have served
an immediate Respondent interest, and the strikers
were therefore not stripped of the Act’s protection for
disobeying it.
The judge further found that the Respondent’s order
to leave the plant unduly restricted the strikers’ right
to present their grievances. He found that the employ-
ees’ request that a management official come to the
plant during the third shift was ‘‘not so unreasonable
as it might appear at first blush,’’ under the unusual
circumstances existing at that time, i.e., an in-plant
work stoppage on the third shift at the Respondent’s
around-the-clock plant. The judge held that for the Re-
spondent to proceed on the simple premise, without
more, that the third-shift employees should be the ones
to be inconvenienced in such a circumstance is an allo-
cation of burden between employee and employer that
is not necessarily required of employees to secure the
Act’s protection. He noted that the third-shift employ-
ees had already been waiting fruitlessly for a couple of
days for General Manager Thompson’s overdue prom-
ised responses to the grievances they voiced to him 5
days earlier in compliance with the Respondent’s pub-
lished grievance procedures. As the judge stated, by
the time of the events leading up to the early morning
work stoppage, from the employees’ perspective, the
Respondent appeared to be failing to comply with its
own grievance procedure. Accordingly, the Respond-
ent’s order to the strikers to leave the plant, without
being allowed to wait for Thompson to arrive, and to
instead return to the plant later in the day to meet with
him during their personal time off was clearly an
undue restriction on the right of the strikers to continue
to present their grievances to higher management.
My colleagues acknowledge that at its inception, the
in-plant work stoppage was protected activity. The
work stoppage was peaceful and did not disrupt pro-
duction by those who continued to work. My col-
leagues also acknowledge that the employees were en-
titled to persist in their in-plant work stoppage for a
reasonable period of time. They find, however, that
such ‘‘reasonable time’’ expired, and that the contin-
ued in-plant work stoppage lost its protection after Su-
pervisor Lopez directed the employees for a second
time to return to work or leave the plant. They hold
that the Respondent’s order that the employees return
to work or leave the plant actually did not impair their
protected right to present their grievances, because
they had already discussed their problems with Super-
visor Lopez;3 the Respondent’s denial of their request
that Thompson or the owner meet with them right
away was not unlawful; and they were promised that
they would be allowed to talk to Thompson later that
morning, after their shift was over, just like they had
been allowed to do 5 days earlier. My colleagues con-
clude that by failing to obey Lopez’ second demand
that they return to work or leave the plant, the strikers
forfeited the protection of the Act and subjected them-
selves to being fired, because further in-plant refusals
to work would serve no immediate protected employee
interest and would unduly interfere with the Respond-
ent’s right to control the use of its premises. However,
at the time Lopez told the employees for the second
time to return to work or leave the plant—the point at
which my colleagues find that the in-plant work stop-
page lost the protection of the Act—the in-plant work
stoppage had been going on continuously for about 4
hours, completely unchanged in its undisputedly peace-
ful, nondisruptive character. My colleagues point to
nothing in the record that would support a finding that
there was an immediate Respondent interest that could
be served by the strikers’ eviction at that point.
639CAMBRO MFG. CO.
1 Unless stated otherwise, all dates occurred in 1990.
2 The General Counsel’s unopposed motion to correct transcript is
granted.
Based on the foregoing, I would affirm the judge’s
finding that the Respondent unlawfully discharged the
employees for their continued participation in a pro-
tected in-plant work stoppage.
Salvador Sanders, Esq., for the General Counsel.
Kenneth E. Ristau Jr. and Geniene T. Henry, with him on
brief (Gibson, Dunn & Crutcher), of Newport Beach, Cali-
fornia, appearing for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on March 20 and
21, 1991. On December 21, 1990,1 the Acting Regional Di-
rector for Region 21 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing, based
on an unfair labor practice charge filed on November 6, al-
leging violations of Section 8(a)(1) of the National Labor Re-
lations Act, 29 U.S.C. § 151, et seq. (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record,2 on the briefs that
were filed, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Cambro Manufacturing Company
(Respondent) has been a California corporation engaged in
the manufacture and sale of plastic containers, with a plant
located at 7601 Clay Avenue, Huntington Beach, California.
In the normal course and conduct of those business oper-
ations, Respondent annually sells and ships goods valued in
excess of $50,000 directly to customers located outside the
State of California. Therefore, I conclude, as admitted by the
answer to complaint, that at all times material Respondent
has been an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
At its Huntington Beach facility Respondent employs over
400 production and manufacturing employees, working on
three shifts. The issues in this proceeding arise from events
that occurred on October 30 during the third shift, for which
the workweek begins at 11:30 p.m. on Sundays and con-
cludes at 7:30 on Friday mornings.
Following conclusion of their shift on Thursday morning,
October 25, a group of third-shift employees presented a se-
ries of complaints about various working conditions to Gen-
eral Manager Steve Thompson, an admitted statutory super-
visor and agent of Respondent. As described in greater detail
in subsection II,B, infra, Thompson promised to report back
to the employees regarding these matters. But he did not do
so before commencement of the shift on October 29 and 10
third-shift rotomold department assemblers—Reyes Venegas,
Rogelio Rodriguez, Luis Martin Gomez, Jose Juventino
Pulido, Ofelia Romero, Alida Nunez, Francisco Lemus,
Rafael Ramirez, Ramon Ventura, and Hugo Torres Blanco—
and foamer’s helper Bernardo Hernandez Gonzalez stopped
work during the early morning of October 30 and demanded
another meeting with Thompson or a meeting with Respond-
ent’s owner, neither of whom were then present at Respond-
ent’s facility. Although instructed to either return to work or
to clock out and leave the facility, the employees refused to
follow both alternative instructions. Instead, they chose to re-
main in the facility’s dining room and in the area outside of
it, awaiting the appearance of either Thompson or the owner.
When Thompson did arrive, he met with the 11 employees
and suspended them. During the afternoon of October 30
each of those employees was notified that he or she had been
fired.
The General Counsel alleges that those terminations were
motivated by the employees’ protected concerted activity of
protesting working conditions and, consequently, violated
Section 8(a)(1) of the Act. Conversely, Respondent advances
principally two arguments in opposition to that allegation.
However, as discussed in subsection II,C, infra, those argu-
ments lack evidentiary support and legal sufficiency. There-
fore, I conclude that a preponderance of the evidence sup-
ports the allegation that the termination of those 11 employ-
ees violated Section 8(a)(1) of the Act.
B. Findings of Fact
Aware that certain second-shift employees had satisfac-
torily resolved certain complaints about working conditions
as a result of a meeting with Thompson, a group of third-
shift employees clocked out at shift’s conclusion on the
morning of October 25 and obtained a similar meeting with
Thompson. The testimony discloses collateral differences
over some particular items discussed during that meeting.
However, Thompson agreed that ‘‘quite a few matters’’ were
brought to his attention during it, some pertaining only to
particular individuals and others ‘‘pertaining to a department
or group’’ as a whole.
In the context of this case the two significant subjects dis-
cussed during the employees’ meeting with Thompson were
Rotomold Department Foreman Victor Lopez and, second,
Gabriel Sepulveda, who had been employed by Respondent
for approximately 2 or 3 weeks at the time of the October
25 meeting. Assembler Blanco testified that he had com-
plained to Thompson ‘‘that I was having a lot of pressure
from Victor Lopez,’’ who ‘‘used to push us. Telling us that,
‘I want this job done by a certain time and if you cannot
do it I will bring my child here.’’’ Foamer’s helper Hernan-
dez agreed that Blanco had complained about ‘‘the bad treat-
ment,’’ as had assemblers Alida Nunez and Martin Gomez,
among others. More specifically, Hernandez testified that
‘‘some other co-workers, also made comments to Mr. Steve,
also that someone was making fun of them, that someone
was cheating them out of their seniority.’’ With regard to the
latter, Hernandez testified that ‘‘they wanted to put someone
as a lead person and that person had only been working there
for about 15 days.’’ His testimony in that respect was clari-
fied further during cross-examination when he agreed that
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘one of the things that we talk[ed too Thompson] about’’
had been ‘‘a man that had been picked for supervisory train-
ing by the name of Gabriel Sepulveda.’’
Lopez, who did not attend this meeting, denied having
ever engaged in the type of conduct attributed to him by the
employees. Nevertheless, when testifying about the October
25 meeting, Thompson did not contest that there had been
complaints about Lopez pressuring and deprecating employ-
ees. Nor did Thompson dispute that there had been com-
plaints about Sepulveda’s selection. In fact, Thompson
agreed that ‘‘we didn’t have a discussion about how seniority
worked, but there was a question on an item raised, you
know, regarding seniority.’’
However, there was disparity concerning what Thompson
had promised at the end of the meeting. Hernandez testified
that Thompson had said simply ‘‘that he was going to inves-
tigate’’ and needed time to do so. So also did assembler Luis
Martin Gomez, who testified that Thompson had said, ‘‘That
he was going to try to find out a solution about this.’’ How-
ever, Blanco testified that Thompson had ‘‘told us to wait
two or three days for him to give us an answer.’’ Blanco’s
testimony in that respect was corroborated by packer Fran-
cisco Lemus who testified that Thompson had ‘‘said that we
were to wait for two or three days and he was going to look
into—into the case.’’
In the final analysis, Thompson never specifically denied
having made a promise to respond within 2 or 3 days to the
employees’ complaints. Thus, a question concerning his re-
sponse at the end of the meeting sparked the following ex-
change when Thompson testified:
A. My response was that I had taken notes and that
I was interested in their problems and that I would look
into every problem.
Q. Okay. Did you tell them that you would get back
to them in two or three days?
A. I don’t recall that.
Q. Well, there’s a difference between not recalling
and whether you think you did or you didn’t; do you
think you did or do you think you didn’t?
. . . .
THE WITNESS: I recall saying that I was asked when
I could get back to them and I said, ‘‘I’ll get back to
you as soon as I can,’’ but I want—I have to have time
to investigate these items.
Therefore, Thompson never denied with particularity that he
had promised to return to the employees with answers within
2 or 3 days after the October 25 meeting.
It is undisputed that Thompson did not report back to the
third-shift employees within 2 or 3 days of the October 25
meeting. He testified generally that, following that meeting,
he ‘‘had begun the process’’ of investigating their com-
plaints. But, other than testifying that he had not been able
to get answers to ‘‘all of them,’’ Thompson did not describe
with specificity what steps he had taken in doing so. Nor did
he advance even an estimate as to what further time he might
have needed to conclude his investigation of ‘‘all their
complaints[.]’’ Accordingly, on the night of Thursday, Octo-
ber 25, to Friday October 26, third-shift employees com-
pleted their work for the week during which they met with
Thompson and then began the following workweek by com-
pleting their shift for Sunday, October 28, to Monday, Octo-
ber 29, and by beginning their shift for Monday, October 29,
to Tuesday, October 30, without further word from Thomp-
son.
During that intervening 5 days, Respondent’s officials ad-
mittedly were put on notice of continued third-shift employee
dissatisfaction. For example, after the third shift’s work was
completed at 7:30 a.m. on Monday, October 29, first-shift
Rotomold Department Foreman Ray Garcia had been ap-
proached by Ramon Ventura. Ventura said that he desired to
be transferred, because he wanted to continue working for
Respondent and feared that he would lose his job because
some other third-shift employees were pressuring him to join
them in ‘‘not clocking in and not going to work’’ that night.
Ventura’s remarks were related by Garcia to Lopez. How-
ever, there is no evidence that Respondent took any pre-
cautionary action by accelerating Thompson’s investigation
of third-shift employees’ complaints. Nor is there evidence
that Thompson gave any consideration to again meet with
third-shift employees to try to head off any possible work
stoppage in which they might engage. But if Thompson held
no meeting with the employees after October 25, other offi-
cials of Respondent did so.
As Lopez acknowledged, ‘‘everybody clock[ed] in at the
same time’’ at the beginning of the third shift on Monday
night, October 29. The employees performed their work
without interruption and took their first break at 1:30 a.m.
on, by then, October 30. Assembler Luis Martin Gomez testi-
fied that prior to that, break assembler Jose Juventino Pulido
‘‘came to the working area and made a comment to us that
[Victor Lopez and his immediate supervisor, Ron Meredith]
put him [Pulido] as a leader. That they told him don’t get
the people excited, calm down.’’
At 1:30 a.m., most of the employees scheduled for break
divided into essentially two groups, one going to the dining
room located by Lopez’ office and the other to some benches
located in the parking lot at the plant’s entrance. Pulido
joined the latter group. There, Hernandez testified, Pulido re-
lated that he had been asked into Meredith’s office where
Meredith, Lopez, and Second-Shift Supervisor Jose Redondo
had been present. Then, reported Pulido to the employees at
the outside benches according to Hernandez, ‘‘they told me
that if I continue getting the people rattled up they were
going to do something against me. They told me to be care-
ful and that there were going to be consequences after this.’’
Pulido did not appear as a witness, apparently because he
remained in Mexico, where he had gone 4 or 5 months be-
fore the hearing commenced. However, there is no dispute
that he had been summoned to Meredith’s office prior to the
1:30 a.m. break on October 30. Blanco testified that he had
been present when Lopez had instructed Pulido to wait in his
(Lopez’) office and, after commencing his own work, had
observed Pulido enter and later leave Meredith’s office. More
significantly, Lopez admitted that, after the employees had
clocked in on October 29 and before the 1:30 a.m. break on
October 30, there had been a meeting with Pulido in
Meredith’s office. As Hernandez testified that Pulido had re-
ported, Lopez acknowledged that, in addition to himself,
Meredith and Redondo had been present. According to
Lopez, during this meeting Pulido was asked
why he was—he was—not agree with the decision we
take; we asked him if he wants to be a trainer at the
641CAMBRO MFG. CO.
same time with Gabriel Sepulveda or if he wants to
take that position or what’s the problem and—and not
take Gabriel or not tell Gabriel to—this involved, you
know, start training as a lead.
Lopez testified that Pulido had responded that he did not
‘‘want the position,’’ but that there had been problems be-
tween Sepulveda and himself when they had been neighbors
in Mexico sometime in the past. At one point, testified
Lopez, Pulido had said that he ‘‘just want[ed] to keep Ga-
briel Sepulveda out as a lead man,’’ but at another point
Lopez testified that Pulido had ‘‘said he doesn’t care if Ga-
briel’s going to take the position.’’ Lopez also testified that
Pulido had said that, other than Sepulveda’s selection, he had
no other problems.
Several aspects of the meeting with Pulido are noteworthy.
Lopez never explained Respondent’s motivation for suddenly
convening it with a single third-shift employee that night.
Nor did he explain the motivation that had led to selection
of Pulido as the employee with whom that meeting was con-
ducted. Similarly, in light of the concededly ‘‘quite a few
matters’’ raised with Thompson on October 25 by third-shift
employees, Lopez never explained why the subject of Sepul-
veda had been the lone topic of discussion during that meet-
ing.
Neither Meredith nor Redondo was called as a witness, al-
though there was no contention that they were unavailable to
Respondent for that purpose. As a result, Lopez’ account of
the meeting with Pulido is left uncorroborated. Moreover, the
record is devoid of an explanation for a second-shift super-
visor’s presence at a meeting with a third-shift employee.
Nor did Lopez explain why it had been necessary for Mere-
dith to preside over that meeting. Thompson never contended
that Meredith had been a participant in the investigation set
in motion by the third-shift employees’ October 25 com-
plaints. In fact, there is no showing that, in the ordinary
course, Meredith normally had even remained at Respond-
ent’s facility until the third shift had commenced working.
The crucial point for this proceeding about the meeting
with Pulido is that its occurrence provides plausibility for the
employees’ belief in the accuracy of Pulido’s accounts to
them of what had been said to him during it. In turn, that
provided a basis for suspicion of Respondent’s genuine will-
ingness to address the complaints voiced to Thompson dur-
ing the preceding week. In fact, the record does disclose that
the employees became upset on hearing Pulido’s description
of that meeting. Hernandez and Blanco testified that the
group at the outside benches discussed Pulido’s report. Ac-
cording to Blanco, the group decided, ‘‘That we were going
to stop [work] because what Victor Lopez was saying [about
Pulido’s role in the employees’ dissatisfaction] was a lie.’’
That account was corroborated by Hernandez who also testi-
fied that there had been renewed complaints about continued
pressure being put on employees, with the result that the
group decided to stop work and seek a meeting with Re-
spondent’s owner in light of Thompson’s by then seeming
unwillingness to address their complaints.
As to the group taking their break in the dining room,
Gomez testified that Pulido’s report was discussed, along
with the fact that Respondent’s officials had falsely accused
Pulido of causing discontent when, in fact, all of the employ-
ees were unhappy with Lopez’ ‘‘bad manners’’ and unwill-
ingness to listen to employees, as well as with a perceived
lack of raises and adequate insurance coverage and with the
selection of the relatively newly hired Sepulveda. However,
unlike the outside group, Gomez testified that the one in the
dining room had decided to try to talk to Lopez and, if he
proved unwilling to listen, to then attempt another meeting
with Thompson.
Apparently the dining room group’s approach was adopt-
ed. For, Lopez testified that as the break concluded he was
approached by Pulido who said the assemblers would like a
meeting. Lopez agreed and went to the production area, say-
ing, ‘‘Okay. Let’s see what the problems are and we’re going
to talk about it.’’ However, testified Lopez, everybody began
talking at once. He further testified that, during the group’s
initial response, he had heard Pulido, Rafael Ramirez, and
Blanco, in particular, say ‘‘they don’t want Gabriel as a lead
and say, why not take another employee that’s the Korean
name.’’
Gomez and Blanco were the only two employees who tes-
tified with any specificity regarding what had been said at
this particular meeting with Lopez. Both agreed that the em-
ployees had complained about Sepulveda. But they testi-
fied—and Lopez did not deny—that the specific complaint
pertaining to Sepulveda had centered on his short employ-
ment with Respondent in relation to the tenure of other em-
ployees—in short, on his relatively low seniority. Nor did
Lopez specifically deny the testimony of Gomez that the em-
ployees also had ‘‘told [Lopez] about the bad insurance, . . .
about the bad ventilation when we would be painting.’’
Indeed, Lopez effectively conceded that more than one
problem had been voiced by the employees at that particular
time. Thus, he testified that when ‘‘everyone start[ed] talking
at the same time,’’ he had concluded that ‘‘we’re not [going
to] solve the problems, [and] I decided to talk to each person
in my office, so I tell [them], ‘Okay, we’re going to solve
the problems, we’re going to talk to each employee in my
office and we’re going to take care of all the problems.’’’
(Emphasis added.) He directed the employees to return to
work and they did so. Lopez then began meeting with indi-
vidual employees.
He first called in Rafael Ramirez, who said he had no
problems with Lopez nor with working with Sepulveda, but
had joined the group so that there would be unity. Lopez’
next meeting was with Alida Nunez. He testified that when
he inquired about her problems, she had replied, ‘‘I have no
problems to work in the Assembly Department, but you
know we don’t want Gabriel Sepulveda.’’ Responding to this
remark, Lopez testified that he told Nunez, ‘‘I select this guy
to be training as a lead. This guy is not a lead, yet. He is
training for the position, when we are ready to put him in
that position, he’s going to be a lead, but right now he is
training only.’’ According to Lopez, Nunez then said that she
had no other problems.
Lopez testified that when he went to call the third em-
ployee for an individual meeting, he discovered that the em-
ployees had stopped working and were standing in the pro-
duction area. According to Lopez, ‘‘I went over to them and
I say, Okay, please go back to work. I’m talking with each
person and all problems are solving [sic]’’’ (emphasis
added), but the employees replied, ‘‘No, we’re not going
back to work until we speak to the plant manager or the
owner of the company.’’ Neither of those officials was
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
present at that time of the morning. So, testified Lopez, ‘‘I
told them again, ‘Okay, please go back to work. The plant
manager or the owner would show up early in the morning
so at that time we can have a meeting with them and we can
solve the problems if you want to talk to [them].’’’ (Empha-
sis added.) Hernandez, Gomez, and Lemus each testified that
Lopez also told the employees that they should clock out if
they did not intend to return to work. However, the employ-
ees repeated that they wanted to speak with the plant man-
ager or the owner.
By way of explanation, Blanco testified that the employ-
ees’ request to speak with the owner had been motivated by
their perception that their earlier complaints had been ig-
nored, especially in light of Thompson’s failure to return
with answers within the promised 2 or 3 days of the October
25 meeting. Because they ‘‘felt that perhaps [Thompson] had
communicated [their October 25] complaints’’ to the owner
and because ‘‘we were having more pressure [from Sepul-
veda] and we could hardly take it anymore, so we stopped’’
work and sought to protest directly to Respondent’s owner.
In fact, it ultimately was not disputed that, during the ini-
tial exchange with Lopez after the work stoppage, some of
the employees had expressly complained about Sepulveda’s
selection. For example, Blanco testified that, ‘‘Some of the
other persons such as the ladies said, ‘Why, we know the
work, we know the work we do in the areas and we’ve been
here a lot longer?’’’ Yet, when initially asked if he had
known why the employees had stopped working on October
30, Lopez claimed ‘‘at that time I didn’t know why they had
stopped working’’ and that he had not been concerned about
the employees’ reasons for doing so. Only when pressed fur-
ther during cross-examination did he finally concede that,
So when they stopped working and I went over to
them, you know, I didn’t ask them why they had
stopped working for; but I have an idea that’s the prob-
lem, because they don’t want Gabriel as a lead. They
didn’t want—they say and they don’t want to go back
to work until they talk to the owner or the plant man-
ager because they don’t want Gabriel as a lead.
Moreover, in the end, Lopez did not dispute that the particu-
lar complaint about Sepulveda’s selection had pertained to
his lack of seniority relative to that of other employees.
It is undisputed that Lopez withdrew from the production
area following this exchange; that the machinists and most
of the foamers resumed working; that the assemblers tried
unsuccessfully to persuade working employees to support
them by stopping work and, then, joined other employees in
the dining room at the 3:30 a.m. lunchbreak; and, that after
that break some assemblers remained in the dining room and
other stood around in the area immediately outside of the
dining room. However, the evidence was not so straight-
forward concerning the actions of Respondent’s officials fol-
lowing Lopez’ departure from the production area after his
exchange with the employees who had ceased working.
Lopez testified that, having unsuccessfully tried to per-
suade the employees to return to work, he had ‘‘called Steve
and Ron Meredith, my boss.’’ According to Lopez, ‘‘When
I called Ron the first time, he told me to tell them go back
to work and we’re going to show up early in the morning
so we can talk to them and, you know, tell them again,
please go back to work.’’ Yet, as pointed out above, Mere-
dith was never called as a witness by Respondent and, ac-
cordingly, did not corroborate Lopez’ account of that as-
serted conversation. Moreover, while Lopez described that
conversation as having occurred ‘‘[w]hen I called Ron the
first time,’’ he did not describe their conversation(s) during
their subsequent telephone call or calls that morning. Further-
more, although Lopez claimed that following that ‘‘first’’
conversation with Meredith, he had ‘‘started doing’’ as Mer-
edith had instructed, there is no evidence that Lopez returned
to again speak with the employees until after the
lunchbreak—over an hour after the work stoppage had
begun. Not only did the employees place their second
postwork stoppage exchange with Lopez as having occurred
at that time, but Lopez admitted, in response to counsel’s
suggestion, that it had not been until ‘‘about 4:10 that morn-
ing’’ that he had returned to where the employees had gath-
ered ‘‘in the lunch room in the production area.’’ At no point
did Lopez explain his apparent failure to more promptly
carry out Meredith’s purported above-described instruction.
The confusion in Respondent’s evidence is compounded
by comparison of Lopez’ testimony with that of Thompson
concerning their telephonic communication during the early
morning of October 30. Lopez first testified that, at ‘‘about
4:10 that morning,’’ he had told the employees to ‘‘[g]o back
to work,’’ but that they had remained ‘‘in the lunch room in
the production area.’’ He then testified, ‘‘At that time and
that’s when I called Steve and I told them, please go back
to work . . . and if you don’t, please clock out and come
back at 7:30 so we can have a meeting.’’ As a result, it was
not clear from Lopez’ testimony whether he had telephoned
Thompson immediately before or after his second postwork
stoppage exchange with the employees. However, Lopez
never described, nor even claimed, that he had participated
in more than a single telephone conversation that morning
with Thompson. That is, he never claimed that there had
been a telephone conversation between them much earlier
than the one that he placed as having occurred immediately
before or after his second exchange with the employees who
had stopped work.
Thompson also described a telephone conversation with
Lopez that, testified Thompson, had occurred ‘‘about 4:00,
between 4:00 and 4:30.’’ However, he claimed that that call
had been the second one concerning the work stoppage that
he had received from Lopez. Thompson further testified that
the call ‘‘between 4:00 and 4:30’’ had occurred ‘‘maybe an-
other hour, an hour and a half’’ after an earlier call from
Lopez.
Not only was that testimony about an earlier call not cor-
roborated by Lopez, but other aspects of Thompson’s testi-
mony about two telephone calls are puzzling. For example,
he claimed that he had issued essentially identical instruc-
tions to Lopez in both of them. Thus, he testified that during
the first asserted call, ‘‘I told him . . . let [t]he people have
a choice to work or not to work, that if they don’t want to
work, it’s their choice and they can clock out and leave the
premise[s].’’ In the call between 4 and 4:30, Thompson testi-
fied that ‘‘I asked [Lopez] to write this down that he should
tell the employees . . . that they should return to work and
if they don’t want to return to work, then they should clock
out and leave the premise[s].’’ At no point did Thompson
explain what he could have hoped to accomplish by twice in-
643CAMBRO MFG. CO.
structing Lopez to follow an essentially identical course of
action. Nor is such an explanation suggested by review of
the other evidence. Moreover, at no point did Lopez testify
that he had been twice instructed by Thompson to tell the
employees to return to work or to clock out and leave the
premises.
Furthermore, Thompson’s testimony was internally incon-
sistent in its descriptions of his reaction to Lopez’ report
concerning the work stoppage. At one point, he testified that,
having been told that the employees would not resume work-
ing until they spoke with him or the owner, ‘‘I said, ‘Okay,
I’ll get up and get ready and come in as soon as I can.’’’
But Lopez did not corroborate that testimony and Thompson
later testified that, after having spoken with Lopez, he had
been unable to get back to sleep. But that testimony contra-
dicted his own account of an intention announced to Lopez
to ‘‘get ready and come in as soon as I can.’’ Of course, it
might be argued that Thompson was referring to the first as-
serted call when he claimed that he had tried to get back to
sleep and, by contrast, that he had gotten ready to go to work
after the second purported telephone conversation with
Lopez. However, any such possible supplied explanation for
this internal contradiction is completely eliminated by
Thompson’s further specific testimony that, after talking to
Lopez, ‘‘I couldn’t go back to sleep so I decided to come
in earlier.’’ That is, he had come to Respondent’s plant only
after unsuccessfully trying to return to sleep. In the face of
that testimony, there is no basis for an argument that Thomp-
son’s inability to return to sleep had occurred as a result of
Lopez’ asserted first telephone call and did not pertain to
Thompson’s reaction to the call ‘‘between 4:00 and 4:30.’’
With regard to the substance of the call or calls by Lopez,
Thompson testified that during the asserted first one, there
had been no discussion whatsoever concerning the employ-
ees’ reasons for having stopped work:
Q. And you didn’t ask him why they had stopped
work?
A. No. Not that I recall at that time in the morning?
However, testified Thompson, in the purported second tele-
phone conversation, Lopez ‘‘did describe some of the prob-
lems they were having, that they were unhappy with the—
the person that he had chosen for the lead.’’ (Emphasis
added.) Having thus abruptly shifted from multiple reasons
for the work stoppage to a single one, in midsentence,
Thompson subsequently adhered to the latter version, testify-
ing that he only recalled Lopez telling him that the employ-
ees were concerned about Sepulveda’s selection as lead and,
further, that he did not ‘‘recall asking’’ whether ‘‘the em-
ployees had voiced any other problems to [Lopez].’’
Whether because of his promise to ‘‘get ready and come
in as soon as I can’’ or because he ‘‘couldn’t get back to
sleep so I decided to come in earlier,’’ Thompson did make
the 25-mile drive from his home to Respondent’s plant. He
testified that he had arrived about 5:15 or 6 a.m. and that
‘‘I went into my office and asked Victor [Lopez] to tell me
what was going on,’’ to which Lopez replied that the em-
ployees still refused to return to work or to clock out and
leave the premises. According to Thompson, during this
meeting with Lopez, there had been no ‘‘detailed discus-
sion’’ of Sepulveda nor apparently of any other motivation
that the employees might have had for ceasing work earlier
that day. Lopez did not corroborate Thompson’s testimony
regarding this meeting and the discussion that assertedly oc-
curred during it.
After his arrival, Thompson did meet three times with the
employees who had ceased working: in his office, shortly
afterward in the lunchroom, and across the street from Re-
spondent’s plant after the employees had left it. During the
office meeting, employee Jose Luis Garcia—who is not an
alleged discriminatee—interpreted for the Spanish-speaking
employees and the English-speaking Thompson. However,
Garcia did not appear as a witness. Thompson described this
meeting by testifying only that he had asked the assembled
employees, ‘‘What’s going on? and they were all talking at
the same time,’’ and had ‘‘continued to talk’’ when he asked
them to return to work. Undisputed was the testimony that
Blanco had said to Thompson that the employees liked to
work, but that he had not responded to their problems within
2 or 3 days as he had promised, to which Thompson replied
that the employees should have given him more time because
he was continuing his investigation. Nor is it disputed that
Thompson ultimately told the group that he ‘‘did not want
to know anything else’’ and that they were suspended. Some
of the employees demanded that Thompson put the suspen-
sion in writing and they all left the office, going to the din-
ing room.
Thompson wrote out separate suspension notices for each
of the employees. Each notice recited that the employee was
‘‘suspended for failure to follow instructions pending an in-
vestigation’’ and directed that the personnel office should be
called for further information between 3 and 4 o’clock that
afternoon. Thompson took the notices to the dining room
where he distributed them to the employees assembled there.
Despite the notices’ direction to call the personnel office,
Thompson did not deny having orally told the employees to
either call or return to Respondent’s facility that afternoon.
Initially, the now-suspended employees continued to refuse
to leave the facility and Thompson called the police to re-
move them. However, before the police arrived, the employ-
ees decided to leave when one of their members appeared to
become ill.
After leaving Respondent’s plant, the employees went
across the street from it. Thompson testified that, on noticing
them there,
I think that I—I wanted to know what their real
problem was; that I—I think I wanted to ask them one
more time, you know, what their particular problem
was, because it didn’t make sense to me that—that they
were that upset that they had taken the action they had
taken and made the choices that they made. And I just
wanted to ask them, you know, one more time.
He told bilingual First-Shift Supervisor Garcia to accompany
him across the street to talk to the employees.
There is no dispute that Garcia did cross the street and did
speak with the employees that morning, although Blanco de-
nied that Thompson had accompanied or later joined him. By
contrast, Alida Nunez and Ofelia Romero each testified that
she did not remember if Thompson had been with Garcia and
Hernandez testified that, ‘‘Thompson came to us, after that
Mr. Ray Garcia came close to us . . . to come and inter-
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pret.’’ But the more significant dispute centered on the words
exchanged during the meeting across the street from Re-
spondent’s plant.
Garcia testified that, interpreting for Thompson, he asked
the employees why they had stopped work, to which three
of them—Pulido, Blanco, and Gomez—replied that they did
not want Sepulveda ‘‘trained for a lead position’’ and that
they were willing to return to work if he was fired. Garcia’s
description of the employees’ response was not uncontested.
Blanco denied that the employees ever had demanded that
Sepulveda be fired. Nunez testified that, from what she re-
membered, there was no mention by the employees of want-
ing someone fired. Romero testified that, in replying to Gar-
cia that morning, she had complained that ‘‘we were being
pressured a great deal on the job, that a young man they
have there working was bossing us and mistreating us.’’ But
she further testified that, ‘‘I did not hear anyone say that
anyone wanted someone fired.’’
In the final analysis, any reliance that might have been
placed on Garcia’s recitation of a demand for Sepulveda’s
discharge was undermined completely by Thompson’s own
testimony regarding Garcia’s translation of the employees’
responses to his question of them. During direct examination,
Thompson testified that Garcia had translated ‘‘that their rea-
son for not going back to work was because we had a—a
chosen lead over other employees, and that the employees
felt that we had cheated a seniority system.’’ At that point,
Thompson made no mention of any employee demand for
Sepulveda’s discharge. Nor did he do so during cross-exam-
ination when he testified, in response to a question concern-
ing what Garcia had said about the employees’ answer, ‘‘that
they—they didn’t like this person being chosen for a lead
and—well, that was it. They didn’t like that person that Vic-
tor Lopez had chosen for the lead.’’ Indeed, Thompson then
answered affirmatively when next asked if that had been ‘‘all
Mr. Garcia told you[.]’’ Ultimately, during redirect examina-
tion, Thompson testified that he had heard Garcia’s testi-
mony and that his recollection of what had occurred across
the street conformed to Garcia’s testimony. However, even at
that stage, Thompson still did not specifically claim that any
of the employees had demanded the termination of Sepul-
veda.
On conclusion of the meeting across the street with the
suspended employees, Thompson returned to Respondent’s
plant. At approximately 3 p.m. that day, those employees re-
turned there. In individual meetings with Thompson, each
one was handed a personnel action notice which recited that
he/she was being terminated for insubordination because of,
‘‘Refusal to return to work or leave company property.’’
Aside from these legends on those notices, the only other
evidence—and the only evidence provided under oath—per-
taining to Respondent’s motivation for these terminations
was the testimony of Thompson. However, in light of the
wellsettled principles that, in evaluating the legality of dis-
charge motivation, ‘‘the pivotal factor is motive’’ (citation
omitted); NLRB v. Lipman Bros., 355 F.2d 15, 20 (1st Cir.
1966), and ‘‘the employer’s motive becomes the focal
point’’; NLRB v. Oberle-Jordre Co., 777 F.2d 1119, 1121
(6th Cir. 1985), careful examination of that testimony reveals
certain objective aspects that tend to undermine reliance on
it.
Despite the above-quoted statements on the personnel ac-
tion notices, under oath Thompson never did explain the spe-
cific reason(s) for Respondent’s decision to fire the 11 al-
leged discriminatees. Twice he testified about circumstances
under which those employees would not have been dis-
charged:
Q. If the employees had clocked out that night, after
they refused to work, if they wanted to strike or engage
in a work stoppage, and they had left the property and
came back at 7:30 in the morning, were you going to
fire them?
A. No. We would have had a meeting.
. . . .
Q. (By Mr. Ristau): Steve, if the employees had
gone back to work would you have fired them?
A. No.
Q. If the employees had left the plant after they
stopped work and were waiting a meeting for you,
would you have fired them?
A. No.
Q. If it had been communicated to you anywhere
along the course of the evening that the employees
were stopping work because of an unsafe condition,
would you have fired them?
A. No. Of course not.
But, affirmatively, at no point did Thompson testify concern-
ing the actual reason or reasons for Respondent’s termination
decision.
It is settled that ‘‘mere existence of valid grounds for a
discharge is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on those
grounds.’’ (Citation omitted.) NLRB v. Symons Mfg. Co., 328
F.2d 835, 837 (7th Cir. 1964). Accord: Singer Co. v. NLRB,
429 F.2d 172, 179 (8th Cir. 1980). For, the ultimate ‘‘deter-
mination which the Board must make is one of fact—what
was the actual motive of the discharge?’’ Santa Fe Drilling
Co. v. NLRB, 416 F.2d 725, 729 (9th Cir. 1969). Thompson
never did explain that motive.
Furthermore, although Thompson acknowledged that he
had been a participant in the decision to terminate the 11 em-
ployees, he refrained specifically from claiming that he had
been the only official of Respondent involved in having
made that decision:
Q. Okay. And did you make the decision to termi-
nate these people?
A. No, not completely.
Q. Was anyone else in management or ownership of
the company participatory in this decision to terminate
these employees?
A. When a problem or a situation arises of this im-
portance, you know, concerning the employees, you
know, it’s customary where several people, several
members of the management would come together and
discuss the problem and try to arrive at the right solu-
tion.
Q. So the answer is yes to that question?
A. Yes.
However, Thompson never identified the other official(s)
who had participated in the discharge decision. Moreover, no
645CAMBRO MFG. CO.
other official of Respondent appeared as a witness to explain
the actual motive for it. Yet, their ‘‘motivation was critical
on the question of Respondent’s reason for [that decision,
and] its failure to call [them] permits an adverse inference
as to its motivation.’’ (Citations omitted.) American
Petrofina Co., 247 NLRB 183, 192 (1980).
In fact, Thompson vacillated when asked even so basic a
question as when the termination decision had been made
during the day on October 30: ‘‘to pin it down, when we had
actually made the decision, I think is—is on the difficult side
because you would have members of the group expressing
their feelings.’’ Indeed, the effort to more precisely focus this
particular aspect of the termination decision was met with
only additional equivocation by Thompson: ‘‘I think that I
came away from that meeting with the understanding that
there was going to be a termination.’’
C. Analysis
Ultimate disposition of the issues presented by this case is
governed by essentially straightforward principles. ‘‘A viola-
tion of § 8(a)(1) is established if (1) the employee’s activity
was concerted; (2) the employer was aware of its concerted
nature; (3) the activity was ‘protected’ by the [A]ct; and (4)
the discharge or other adverse personnel action was moti-
vated by the protected activity.’’ (Citation omitted.) NLRB v.
Oakes Machine Corp., 897 F.2d 84, 88 (2d Cir. 1990). On
the facts of this case there can be no dispute that the first
two elements are satisfied. After the first break during the
morning of October 30, 11 employees ceased working and
sought collectively to protest certain working conditions to
Plant Manager Thompson or to Respondent’s owner. Lopez
knew that the 11 employees were acting in concert and it is
admitted that he communicated that fact to Thompson. Ac-
cordingly, there is ample evidence of activity by employees
that was concerted and, further, that Respondent had knowl-
edge of its concerted nature.
As to whether the employees’ work stoppage was pro-
tected, ‘‘[a] concerted work stoppage and walkout by unrep-
resented employees for their mutual aid and protection is
protected by § 7 of the Act.’’ (Citations omitted.) United
Merchants & Mfrs. v. NLRB, 554 F.2d 1276, 1278 (4th Cir.
1977). However, this fundamental protection for such activity
is not without limitation and Respondent rests its principal
arguments on two such limitations. First, it argues that the
dischargees had only a single objective for their work stop-
page and that object had been to protest the selection of an
individual—Gabriel Sepulveda—as a supervisor. Since, con-
tinues the argument, the protection of Section 7 does not or-
dinarily encompass protests concerning the selection of su-
pervisory personnel, the dischargees’ work stoppage was not
protected activity. Second, argues Respondent, the employees
remained in its plant after the work stoppage, rather than
walking out and, therefore, whatever protection Section 7 ex-
tended to their activity was lost as a consequence of their un-
willingness to return to work or to clock out and leave the
premises when directed to do so. But, in the circumstances
of this case, there is no merit to either argument.
As to Respondent’s first argument, ‘‘Traditionally, the in-
terest of the employer in selecting its own management team
has been recognized and insulated from protected activity.’’
Abilities & Goodwill v. NLRB, 612 F.2d 6, 8 (1st Cir. 1979).
Consequently, where ‘‘employee concerted activity is de-
signed solely to effect or influence changes in the manage-
ment hierarchy[,] . . . the Board has found that such conduct
does not constitute protected activity.’’ (Citation omitted.)
Hoytuck Corp., 285 NLRB 904 fn. 3 (1987). However, while
it cannot be disputed that the dischargees were opposed to
Sepulveda’s selection, their work stoppage was not deprived
of statutory protection because of that opposition. This is so
for essentially three reasons.
First, although, in questioning, counsel characterized the
position for which Sepulveda had been training as a super-
visory one, no evidence was adduced to show that Sepulveda
possessed or, once trained, would possess any one of the su-
pervisory powers enumerated in Section 2(11) of the Act. It
is settled that the party who contends that a particular posi-
tion is supervisory bears the burden of establishing as much:
bears the burden of adducing evidence that independent judg-
ment is exercised by its occupant with respect to at least one
of the powers listed in Section 2(11) of the Act. See, e.g.,
Hydro Conduit Corp., 254 NLRB 433, 437 (1981). More-
over, as illustrated by portions of their testimony quoted in
subsection II,B, supra, whenever not led by characterization
of Sepulveda’s then-present and projected position, both
Lopez and Thompson referred to that position as a ‘‘lead’’
one—the type of position ordinarily categorized as being
nonsupervisory. See, e.g., Brewery Workers v. NLRB, 298
F.2d 297, 303 (D.C. Cir. 1961), cert. denied 369 U.S. 843.
Accordingly, the evidence does not support the contention
that Sepulveda did or would occupy a position that could be
characterized as supervisory within the meaning of Section
2(11) of the Act. It follows that protests about his selection
did not constitute an effort ‘‘to effect or influence changes
in the management hierarchy’’ of Respondent. Hoytuck
Corp., supra.
Second, to the extent that Sepulveda’s selection had been
an item of protest, there is no basis for concluding that the
employees had not been protesting ‘‘in fact . . . the actual
conditions of their own employment.’’ Puerto Rico Food
Products Corp. v. NLRB, 619 F.2d 153, 156 (1st Cir. 1980).
Although there is a basis for concluding that Pulido did not
like Sepulveda, based on past experience when both resided
in Mexico, there is no basis for concluding that Pulido or
any of the other 10 dischargees had stopped and refused to
return to work on October 30 simply because of personal an-
imosity between those two men. Cf. Joanna Cotton Mills Co.
v. NLRB, 176 F.2d 749 (4th Cir. 1949). Rather, as described
in subsection II,B, supra, there was credible testimony that
employees were dissatisfied that Respondent had bypassed
more senior employees in selecting the newly hired Sepul-
veda for ‘‘lead’’ training and, further, that they and their
work were being subjected to perceived abusive and unfair
criticism and treatment by the relatively inexperienced Sepul-
veda.
Both of those concerns—seniority and treatment—pertain
to conditions of employment even where an actual statutory
supervisor is the immediate object of concerted activity. For
example, concerted activity has been held protected by Sec-
tion 7 of the Act where protests about supervisors have fo-
cused on ‘‘employee complaints about their supervisors’
treatment of them,’’ Calvin D. Johnson Nursing Home, 261
NLRB 289 fn. 2 (1982), and on employee resentment that a
relatively inexperienced supervisor ‘‘did not understand the
work and that one of their number should have been ad-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vanced to the position of [supervisor].’’ NLRB v. Guernsey-
Muskingum Electric Cooperative, 285 F.2d 8, 12 (6th Cir.
1960).
Third, the evidence shows that there were more reasons
for the work stoppage than simply selection of Sepulveda for
lead training. As might be expected whenever unorganized
employees have ‘‘to speak for themselves as best they
could,’’ NLRB v. Washington Aluminum Co., 370 U.S. 9, 14
(1961), different employees singled out different conditions
that precipated their work stoppage: Sepulveda’s lack of se-
niority and perceived mistreatment of them, reports of what
had been said to Pulido during Meredith and Lopez’ meeting
with him before the first break on the October 29–30 third
shift, Thompson’s perceived broken promise to report back
to the employees 2 or 3 days after his meeting with them
on October 25, the various items complained about to
Thompson at that meeting. Thus, despite isolated expressions
to Lopez and Thompson during the morning of October 30,
in fact there had been more than a single reason for the em-
ployees’ work stoppage.
Indeed, Respondent’s officials admitted that they under-
stood that there had been multiple reasons for the dissatisfac-
tion that led to the work stoppage. As quoted in subsection
II,B, supra, Lopez testified that, when he had first met with
the employees after their break and before the work stoppage
had begun, he had told them that he would try to resolve
‘‘all’’ of their ‘‘problems.’’ Similarly, Thompson testified—
at least before abruptly reversing field—that Lopez had de-
scribed ‘‘some’’ of the employees’ ‘‘problems’’ during a
postwork stoppage telephone conversation that morning.
In sum, there is no basis for concluding that the work
stoppage had been motivated solely by supervisory selection
and that, by their work stoppage, the employees were at-
tempting, even in part, to interfere with Respondent’s selec-
tion of its management team. To the contrary, the third-shift
employees believed that they faced myriad problems which
they felt should be addressed by Respondent. Therefore, a
preponderance of the evidence shows that the work stoppage
was protected by Section 7 of the Act.
Respondent’s second principal argument is that, by their
postwork stoppage remainder in its plant, the dischargees lost
the Act’s protection. In so arguing, Respondent relies on
cases whose holdings are rooted in the doctrine enunciated
in NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 253
(1939). Essentially, that case stands for the proposition that
‘‘employees [have] the right to strike but they [have] no li-
cense to commit acts of violence or to seize their employer’s
plant’’ in the course of doing so. Relying on that holding,
Respondent argues that the 11 dischargees’ refusal to leave
its facility, in response to Lopez’ order to do so if they did
not return to work, deprived their work stoppage of contin-
ued protection under Section 7 of the Act.
At first blush, it might appear that the outcome in this case
is governed by the Board’s decision in Waco, Inc., 273
NLRB 746 (1984). In that case, the Board concluded that the
allegedly unlawful discharged employees—who had refused
to begin work and, failing either to state specific demands
or to facilitate possible resolution of their concerns by meet-
ing with the fabrication department manager on other than a
group basis, had remained in the employer’s lunch room for
at least 3-1/2 hours, giving no indication of a willingness to
either return to work or leave the premises—‘‘had over-
stepped the boundary of a protected, spontaneous work stop-
page, and were occupying the facility in a manner which was
unprotected.’’
Nevertheless, the Board pointed out in that very case that
‘‘the precise contours within which such activity is protected
cannot be defined by hard-and-fast rules. Instead, each case
requires that many relevant factors be weighed.’’ Id. For,
‘‘not every strike in which strikers remain on the premises
amounts to an unlawful deprivation of an employer’s right.’’
Roseville Dodge v. NLRB, 882 F.2d 1355, 1358 (8th Cir.
1989). Indeed, employees are ‘‘entitled to have their protest
heard and to hear the reaction of management.’’ GF Business
Equipment v. NLRB, 529 F.2d 201, 204 (8th Cir. 1975). ‘‘An
employer cannot convert a protected in-plant work stoppage
into an unprotected trespass by the simple expedient of or-
dering his employees from the plant where . . . such an
order serves no immediate employer interest and unduly re-
stricts the employees’ right to present grievances to their em-
ployer.’’ NLRB v. Pepsi-Cola Bottling Co. of Miami, 449
F.2d 827, 829 (5th Cir. 1971).
A review of the cases since Fansteel, where employees
have remained in their employers’ facilities after stopping
work, discloses that both the Board and the circuit courts
have struggled to identify criteria for applying that case’s
doctrine. Some decisions have concluded that the employees’
continued presence deprived their activity of the Act’s pro-
tection: Waco, Inc., supra; NLRB v. Condenser Corp. of
America, 128 F.2d 67, 77 (3d Cir. 1942); Cone Mills Corp.
v. NLRB, 413 F.2d 445, 450–454 (4th Cir. 1969); Advance
Industries v. NLRB, 540 F.2d 878, 883–885 (7th Cir. 1976).
Others have reached the contrary conclusion: Roseville
Dodge v. NLRB, supra; GF Business Equipment v. NLRB,
supra; NLRB v. Pepsi-Cola Bottling, supra; Cudahy Packing
Co., 29 NLRB 837, 867–868 (1941), affd. sub nom. Omaha
Cudahy Plant Workers Union v. NLRB, 123 F.2d 63 (8th Cir.
1941); NLRB v. American Mfg. Co., 106 F.2d 61, 67–68 (2d
Cir. 1939), modified and affd. per curiam 309 U.S. 629; Olin
Industries v. NLRB, 191 F.2d 613, 615–616 (5th Cir. 1951),
cert. denied 343 U.S. 919; NLRB v. J. I. Case Co., 198 F.2d
919, 921–922 (8th Cir. 1952), cert. denied 345 U.S. 917;
Golay & Co. v. NLRB, 371 F.2d 259, 261–263 (4th Cir.
1966), cert. denied 387 U.S. 944; United Merchants & Mfrs.
v. NLRB, supra.
In the process of attempting to accommodate employees’
statutory right to present complaints about working condi-
tions to their employers and employers’ rights to possession
and protection of their property, these cases have examined
whether the employees have remained on the employer’s
premises for a relatively short or definable period of time—
such as ‘‘during the time that discussions with the employer
were being carried on,’’ United Merchants & Mfrs. v. NLRB,
supra, 554 F.2d at 1279, or until their shift had ended, NLRB
v. Pepsi-Cola Bottling, supra, 449 F.2d at 829—or, instead,
have attempted to remain for a relatively prolonged or indefi-
nite period, such as ‘‘refus[ing] to leave after the end of their
shift,’’ Advance Industries v. NLRB, supra, 540 F.2d at 884,
or indicating ‘‘no plan to give up their occupation of Re-
spondent’s lunch room.’’ Waco, Inc., supra, 273 NLRB at
747; see also Cone Mills Corp. v. NLRB, supra, 413 F.2d at
454. There also has been consideration of whether the em-
ployees have presented specific complaints, Masonic & East-
ern Star Home, 206 NLRB 789 (1973), enfd. 514 F.2d 894
647CAMBRO MFG. CO.
(D.C. Cir. 1975), or whether, instead, the employees failed
to ‘‘communicate to the [employer] the particulars of their
grievance so as to facilitate a discussion or possible resolu-
tion of their concerns.’’ Waco, Inc., supra. See also Advance
Industries v. NLRB, supra, 540 F.2d at 884.
Another factor considered in this area has been whether
the employees ‘‘were not permitted to present or discuss
their grievances with the plant representatives,’’ Olin Indus-
tries v. NLRB, supra, 191 F.2d at 615, see also NLRB v.
American Mfg. Co., supra, 106 F.2d at 67; GF Business
Equipment v. NLRB, supra, 529 F.2d at 204, and no other
means existed for addressing the employees’ complaints,
United Merchants & Mfg. v. NLRB, supra, 554 F.2d at 1279,
or, instead, alternative means to continued presence on the
premises existed for peacefully resolving the dispute, such as
a grievance procedure, Advance Industries v. NLRB, supra,
540 F.2d 885, or an expressed willingness to meet with the
employees to discuss their complaints. NLRB v. Condenser
Corp., supra, 128 F.2d at 77; see also Waco, Inc., supra.
Other factors addressed in some of these decisions have been
whether or not the dispute resulted from the employer’s un-
fair labor practices, NLRB v. American Mfg. Co., supra, 106
F.2d at 68, and whether or not the employees acted ‘‘in reck-
less disregard of the employer’s rights,’’ United Merchants
& Mfrs. v. NLRB, supra, 554 F.2d at 1279, by ‘‘claiming to
hold the premises in defiance of the right of possession of
the owner,’’ NLRB v. American Mfg. Co., supra, 106 F.2d
at 67; see also NLRB v. Clinchfield Coal Corp., 145 F.2d 66,
72 (4th Cir. 1944); interfering ‘‘with the work performance
of non-strikers,’’ NLRB v. Pepsi-Cola Bottling, supra, 449
F.2d at 829; see also Roseville Dodge v. NLRB, supra, 882
F.2d at 1359; or threatening or engaging in acts of violence
and damage to property, id.; see also United Merchants &
Mfrs. v. NLRB, supra, 554 F.2d at 1279, as opposed to
‘‘interfer[ring] with production no more than a simple ces-
sation of work by these employees would have.’’ Golay &
Co. v. NLRB, supra, 371 F.2d at 262.
In contending that the dischargees were deprived of Sec-
tion 7 protection by their continued presence in its plant after
stopping work, Respondent contends that they disregarded a
specific instruction to clock out and leave the premises if
they did not return to work, they remained in the facility for
over 4 hours, Respondent had an established grievance pro-
cedure which the dischargees knew had been successfully
utilized by second-shift employees, and Lopez had assured
them that they would be able to meet with Thompson when
he arrived in the morning. Yet, in the context of the events
described in subsection II,B, supra, these considerations are
not as persuasive as portrayed by Respondent’s contentions.
As pointed out above, absent evidence of an employer in-
terest that justifies restricting the dischargees’ right to present
their grievances, Respondent was not free to ‘‘convert a pro-
tected in-plant work stoppage into an unprotected trespass by
the simple expedient of ordering [its] employees from the
plant.’’ NLRB v. Pepsi-Cola Bottling, supra, 449 F.2d at 829.
There is no evidence, and Respondent does not claim, that
the 11 dischargees, or any one of them, ever ‘‘claim[ed] to
hold the premises in defiance of [Respondent’s] right of pos-
session.’’ NLRB v. American Mfg. Co., supra, 106 F.2d at 67.
That is, they appealed to coworkers for support, but there is
no evidence of interference with the work of those who did
not join them.
After the lunchbreak, they remained in the dining room
and area immediately outside of it. However, Respondent
presented no evidence that the presence of so relatively few
employees barred other employees’ access to the dining
room. Moreover, although the area outside of the dining
room is utilized for storage and access, Respondent did not
present any evidence that the dischargees’ presence there
prevented access through, or performance of work in, that
particular area. Nor did Respondent claim or present any evi-
dence of threats or acts of violence or of property damage
by any of the dischargees. In sum, while production was di-
minished to the extent that they did not perform their own
work, there is no evidence that production that morning suf-
fered to any greater extent—‘‘no more than a simple ces-
sation of work by these employees would have.’’ Golay &
Co. v. NLRB, supra, 371 F.2d at 262.
Nor is Respondent’s argument necessarily enhanced by the
4 nonworking hours spent in its facility by the dischargees
on October 30. Although an obviously valid consideration,
there is no universal agreement on the exact number of hours
and minutes that must elapse for continued presence to be re-
garded as excessive and unprotected. For example, the
Board, at least impliedly, deemed 3-1/2 hours to be excessive
in Waco, Inc., supra. However, the Eighth Circuit Court of
Appeals later characterized a 2- to 3-hour period of contin-
ued presence as a ‘‘limited period of time.’’ Roseville Dodge
v. NLRB, supra, 882 F.2d at 1359.
Of course, one might argue that those cases should be syn-
thesized so that periods of up to 3 hours of continued pres-
ence remain protected, while employees are deprived of pro-
tection for remaining in their employer’s facilities for any
longer period. But, such an approach is overly mechanistic.
In some instances, a continued presence of even 5 minutes
may overly infringe on an ‘‘immediate employer interest,’’
NLRB v. Pepsi-Cola Bottling, supra. By contrast, in other in-
stances—such as ones where employees cease work and,
while waiting ‘‘to have their protest heard and to hear the
reaction of management,’’ GF Business Equipment v. NLRB,
supra, retire to an isolated and unused location on their em-
ployer’s premises—a relatively prolonged continued presence
might remain protected. In short, this is not a factor suscep-
tible of simple determination by a stopwatch.
The significant consideration here about postwork stop-
page duration of the dischargees’ continued presence in Re-
spondent’s facility is that at no point—prior to their suspen-
sion—did they state, or even indicate, that they planned not
‘‘to give up their occupation of Respondent’s [dining room
and adjacent area].’’ Waco, Inc., supra. In fact, at no point
did they state or indicate even an intention to remain for a
relatively prolonged or indefinite period of time. Rather, as
Lopez acknowledged, the dischargees stated that they in-
tended to remain until they could secure a meeting with
Thompson or the owner. There is no evidence that gives rise
to even an inference that they likely would have remained
any longer, once such a meeting was conducted. As a con-
sequences, so far as the evidence shows, at all times Re-
spondent retained the ability to control the duration of the
employees’ continued nonworking presence through Thomp-
son or the owner’s participation in such a meeting—by al-
lowing the dischargees ‘‘to have their protest heard and to
hear the reaction of management.’’ GF Business Equipment
v. NLRB, supra.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Of course, as Respondent points out, that approach would
have required Thompson or the owner to come to its facility
in the middle of the night. Yet, in the circumstances, that is
not so unreasonable as it might appear at first blush. Because
Respondent operates round the clock 5 days a week, it can
fairly anticipate that there will be occasions when intermedi-
ate and even ultimate supervision might have to respond to
emergencies and lesser abnormal occurrences at times other
than those during which such supervision ordinarily works.
Respondent does not suggest that there have not been occa-
sions when Thompson or the owner have come to the facility
at hours when they do not customarily work. Nor does it
suggest that one or the other would not do so if necessitated
by such events as major equipment malfunction or customer
demand.
Indeed, Respondent’s point is based on a somewhat one-
sided approach to the free time of third-shift employees, on
the one hand, and that of Thompson and the owner, on the
other. For, on its face, it obliges third-shift employees to sac-
rifice their free time, when they have gotten off work on
conclusion of their shift, so that Thompson and the owner
can enjoy their own free time without interruption. So cava-
lier an allocation of burden between employee and employer
is not necessarily one required of employees to secure the
Act’s protection.
Totally aside from the foregoing considerations, however,
Respondent’s argument, concerning the unreasonableness of
demanding that Thompson or the owner appear in the middle
of the night, loses all sympathy when viewed in conjunction
with its argument pertaining to its grievance procedure. Page
14 of Respondent’s personnel handbook sets forth an open-
door policy that, inter alia, allows employees to bring prob-
lems to their immediate supervisor. In addition, that policy
provides:
If an employee believes the immediate supervisor is
the source of the problem and he/she feels uncomfort-
able about approaching the supervisor, the employee
may request a meeting with the supervisor who is the
next higher authority in the chain command.
In fact, third-shift employees had followed that policy. On
October 25 they presented ‘‘quite a few’’ complaints to
Thompson. Credible testimony establishes—and, in the end,
Thompson never denied—that he had promised to report
back to those employees within 2 or 3 days. However,
Thompson did not keep that promise. By the morning of Oc-
tober 30 the third-shift employees still had not heard the re-
action of Thompson to their protest. Consequently, from the
employees’ perspective, Respondent appeared to be failing to
comply with its own grievance procedure.
Of course, due to the weekend, 2 of the intervening days
had been nonworking ones. Nevertheless, it was Thompson
who had made the undisputed promise. The employees were
entitled to take him at his word: that 2 or 3 days meant sim-
ply that, and not days calculated by excluding weekend days.
If Thompson had actually intended to exclude such days
from his promise, he should—and could—have simply said
so to the employees.
In that connection, Respondent attempts to shift to the dis-
chargees the burden of Thompson’s failure to respond within
2 or 3 days. For, it asserts that if one or more of those em-
ployees had asked Thompson, he would have disclosed that
it was taking longer to investigate the myriad complaints, but
that he would report to them when finished. But by his
promise, Thompson accepted responsibility for initiating fur-
ther communication between himself and the third-shift em-
ployees. Yet, there is no evidence that he had done so at any
time from the morning of October 25, when he met with the
third-shift employees, to that of October 30, when the work
stoppage occurred. Hence, for Respondent’s contention to the
plausible, one or more of the third-shift employees would
have been obliged to wait after their shift had ended for
Thompson’s arrival for work, thereby again sacrificing their
nonwork time—as they had done on October 25 when they
initially met with Thompson at the end of their shift to voice
their complaints—so that they could inquire, in effect, if
Thompson was a person of his word and intended ever to
keep the substance of his already broken promise as to time
of reply.
Not only were the third-shift employees confronted by
Thompson’s failure to keep his promise, and by the absence
of any indication that he ever intended to do so, but an addi-
tional troublesome event occurred that morning when
Thompson’s subordinate supervisors abruptly involved them-
selves in one of the complaints that had been addressed to
Thompson. As pointed out in subsection II,B, supra, Lopez—
the only supervisor at the meeting with Pulido who testified
in this proceeding—never explained the objective for sud-
denly conducting such a meeting with a single employee.
Nor did he explain why Pulido had been selected to be that
employee. In conjunction with Thompson’s unkept promise,
it is hardly surprising that the occurrence of that meeting
with Pulido would heighten third-shift employee suspicion
about Respondent’s willingness to seriously address their
complaints.
In light of Thompson’s nonresponse within the promised
2 to 3 days of October 25, three added factors naturally rein-
forced employee suspicion that resort to Respondent’s open-
door policy had been meaningless and, further, negated the
asserted unreasonableness of an early morning meeting with
Thompson or Respondent’s owner. First, it is not disputed
that one of the October 25 complaints had centered on the
employees’ perceived mistreatment by their supervisor,
Lopez. Yet, after the shift began on October 29, it had been
that very supervisor who inexplicably began dealing with one
of the very subjects—Sepulveda’s selection for training—
about which the employees had complained to Thompson.
Second, from third-shift employees’ perspective, Thompson’s
unexplained nonappearance during their shift contrasted
sharply with that of Meredith and Second-Shift Supervisor
Redondo, who appeared on October 29–30 to participate in
the meeting with Pulido. Finally, Thompson’s apparent non-
response to third-shift employee complaints also contrasted
sharply with his reaction to earlier complaints by second-
shift employees. His response to the latter, but not to the
former, left a natural impression that he might not intend to
dignify the complaints of the third-shift employees.
In sum, whatever conclusion might be reached by applying
the foregoing analytical factors in other contexts, a prepon-
derance of the evidence in this case does not establish that,
by their conduct during the early morning of October 30, the
11 dischargees ‘‘seize[d] their employer’s plant,’’ NLRB v.
Fansteel Metallurgical Corp., supra, and, hence, were de-
649CAMBRO MFG. CO.
prived of the Act’s protection. Furthermore, even were it to
be concluded that their continued presence somehow lost the
Act’s protection at some point that morning, there is no cred-
ible evidence that ‘‘the actual reason for the discharges [was]
the fact that they stayed too long in [the dining room and
adjoining area].’’ Molon Motor Corp., 302 NLRB 138
(1991).
The lone witness who testified concerning Respondent’s
discharge motivation was Thompson. However, in testifying,
he was not a persuasive witness and a review of the record
of his mostly uncorroborated testimony, particularly that po-
tion pertaining to the discharge motivation, serves only to
confirm the unfavorable impression left by the time that he
had completed his testimony. Thus, he avoid identification of
the point at which the discharge decision had been made. He
conceded that the decision had been a joint one—one made
by himself and one or more other officials. But he did not
identify who else had participated in making that decision
and no other witness appeared to explain Respondent’s moti-
vation. Indeed, while Thompson freely testified as to cir-
cumstances under which the dischargees would not have
been terminated, he never did affirmatively testify as to the
actual reason or reasons that led Respondent to make that de-
cision.
In evaluating motivation, the fact that good reason for ter-
mination may have existed is not the determinative consider-
ation. For, ‘‘the policy and protection provided by the . . .
Act does not allow the employer to substitute ‘good’ reasons
for ‘real’ reasons.’’ Hugh H. Wilson Corp. v. NLRB, 414
F.2d 1345, 1352 (3d Cir. 1969), cert. denied 397 U.S. 935.
Here, the General Counsel established that 11 employees
were terminated for engaging in a concerted protest about
working conditions. Respondent failed to establish that their
activity lost the Act’s protection and, even if it did, failed
to meet its burden of going forward with credible evidence
that the termination decision had been based solely upon
‘‘the fact that [the dischargees] stayed too long in [Respond-
ent’s facility].’’ Molon Motor Corp., supra. Therefore, a pre-
ponderance of the credible evidence establishes that the dis-
charges were unlawfully motivated and violated Section
8(a)(1) of the Act.
CONCLUSION OF LAW
Cambro Manufacturing Company committed unfair labor
practices affecting commerce by terminating eleven employ-
ees on October 30, 1990, for engaging in activity protected
by Section 7 of the National Labor Relations Act.
REMEDY
Having found that Cambro Manufacturing Company en-
gaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and, further,
that it be ordered to take certain affirmative action to effec-
tuate the policies of the Act. With respect to the latter, it
shall be ordered to offer to Reyes Venegas, Rogelio
Rodriguez, Luis Martin Gomez, Jose Juventino Pulido, Ofelia
Romero, Alida Nunez, Francisco Lemus, Rafael Ramirez,
Ramon Ventura, Hugh Torres Blanco, and Bernardo Hernan-
dez Gonzalez immediate and full reinstatement to the posi-
tions from which they were terminated on October 30, 1990,
dismissing, if necessary, anyone who may have been hired
or assigned to perform the work from which they were termi-
nated. If the position of one or more of those 11 employees
no longer exists, it shall be ordered to reinstate those particu-
lar employees to a substantially equivalent position, without
prejudice to his/her seniority or other rights and privileges.
It also shall be ordered to make each one whole for any loss
of pay he/she may have suffered because of the unlawful ter-
minations with backpay to be computed on a quarterly basis,
making deduction for interim earnings, F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest to be paid on
the amounts owing as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]