Go-Lightly Footwear, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1980

251 N.L.R.B. 42 (N.L.R.B. 1980)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Go-Lightly Footwear, Inc. and Cindy L. Lais and
Cathy C. Lindquist. Cases 3-CA-9112-1 and
3-CA-9112-2
August 12, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 22, 1980, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Go-Lightly
Footwear, Inc., Amsterdam, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
' The Administrative Law Judge made two inadvertent factual errors
in the section of his Decision entitled "Findings of Fact" First, he stated
that Executive Vice President Robert Winig ordered the Amsterdam
plant manager. Celso Vargas, o fire employees "Lindquist. Lais and Her-
nandez" The third employee fired by Vargas was not named Hernandez
but Nelda Gonzales Second, the Administrative Law Judge incorrectly
related that Robert 'Winig visited the Amsterdam plant to check the time-
cards of the employees fired Winig did examine the timecards of the em-
ployees, but he did so at thie loversville plant. 'We hereby correct these
errors
We agree with the Administrative Lau Judge's finding that Respond-
ent had knowledge of Lais and Lindquist's protected concerted activity
In addition to the factors cited by the Administrative Law Judge in sup-
port of his finding, we rely orn the admissions set forth in Robert Winig's
affidavit, which was admitted into evidence at the hearing. In his affida-
vit, Winig related the events of the first business day following the day of
the protected concerted activity Winig stated that he was told about the
employees' picketing and their leaving the plant without punching out
prior to instructing Vargas to fire the employees: "After hearing this
story [of the picketing and walkout] from Shea and having Brandt con-
firm much of it I then pulled the timecards of the 3 employees Those
timecards were at the Gloversville office I saw that none of the three
employees had punched out I then immediately phoned Vargas It was
about 11 30 a m. I instructed him to let go these 3 employees'"
2 Member Jenkins would award interest on the backpay due based on
the formula set forth in his dissent in Ol(mpic Medical Corporation. 250
NLRB No 11 (1980).
251 NLRB No. 8
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge our employees be-
cause they engage in a walkout or other con-
certed activity for mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the National Labor Relations Act.
WE WILL make Cathy Lindquist and Cindy
Lais whole for any loss of pay they suffered as
a result of our firing them because they en-
gaged in concerted activity for mutual aid and
protection, plus interest.
Go-LIGHTLY FOOTWEAR, INC.
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS, Administrative Law Judge: On June
20, 1979, Cindy L. Lais and Cathy C. Lindquist filed
charges against Go-Lightly Footwear, Inc. (hereafter
called Go-Lightly or the Company), claiming that Go-
Lightly fired them for engaging in protected concerted
activity.' Those charges formed the basis of a complaint,
alleging violation of Section 8(a)(l) of the Act, that the
Regional Director for Region 3 issued on June 26, 1979.
Go-Lightly's answer admitted the complaint's jurisdic-
tional allegations. But Go-Lightly denied that it had fired
Lais and Lindquist because of their concerted activities
or that the Company had otherwise violated the Act.
I heard the case in Albany, New York, on November
26 and 27, 1979.2
FINDINGS OF FACT
Go-Lightly manufactures footwear; shoes at a plant in
Gloversville, New York, and slippers in Amsterdam,
New York. Neither plant is unionized.
Norbert Winig is the president of Go-Lightly. Robert
Winig is executive vice president. Celso Vargas managed
the Amsterdam plant for the Winigs during most of the
period of February 1979 to September 1979. With the ex-
' The June 2(0 charges amended the charges filed by Lais and Lind-
quist ton May 22, 1979
2 The General Counsel filed a unopposed motion to correct tran-
script The motion is granted
GO-LIGHTLY FOOTWFAR, INC. 43
ception of one 5-day period during those months, Orla
Brandt supervised the work at the Gloversville plant.
That 5-day period was May 14 through 18, when
Brandt took Vargas' place at the Amsterdam plant while
Vargas was away. (Actually Brandt's work at the Am-
sterdam plant overlapped Vargas' slightly, since Vargas
was away from the plant only 3 working days, May 16
through 18.)
On May 16 one of the workers at the Amsterdam
plant, Gladys Majewski, complained to Brandt about
what Majewski felt was Brandt's unfair treatment. Ma-
jewski was originally from Puerto Rico and she believed
that Brandt's treatment stemmed from Brandt's prejudice
against Puerto Ricans. Majewski said so to Brandt and
then left the plant. When Majewski returned on Friday,
May 18, she found a note on her timecard advising her
that her "services [were] no longer needed." That led to
another argument between Brandt and Majewski. Ma-
jewski stalked out of the plant, promising to return.
Brandt, taking that as a promise of bodily harm, got
upset.
At lunchtime on that same day, May 18-about
noon-Majewski and a friend (who had not previously
been connected with Go-Lightly in any way) appeared
outside the factory with several poster-board placards
that Majewski had made. While the exact wording of the
placards is not altogether certain, it appears that the
placards read: "Lincoln Freed The Slaves," "God Does
Not Discriminate, Why Do You," "Go-Lightly Employs
Scab Labor," "Go-Lightly Is Unfair To Minorities," and
"Beware of Go-Lightly's False Promises." 3
Brandt did not go outside during the lunchbreak. But
an employee-Go-Lightly's chief mechanic-told her
that Majewski was outside with placards and that one of
the placards said, "Go-Lightly Employs Scab Labor."
When Brandt went to a window to look, she could
indeed see Majewski, but could not read the placards
from that distance. Meanwhile, during the lunchbreak, at
least three employees asked Majewski if she needed any
help with her campaign: Cindy L. Lais, Cathy C. Lind-
quist, and Nelda Gonzales.4 Majewski said that she did
not then need any assistance but might want it later on.
None of the plant's employees remained with Majewski
when the lunchbreak erded.
An hour or so later, however, a newspaper reporter
appeared on the scene, apparently having been contacted
by Majewski. At that point Majewski asked her friend to
have Lindquist, Lais, and Gonzales join her. Majewski's
friend did that by going into the factory building and
motioning for Lindquist to get the other two and to
come out.
Lindquist, Lais, and Gonzales left their work stations
and joined Majewski openly, without attempting to hide
their departure from Brandt, who in fact watched the
three employees leave. In leaving the plant the three vio-
s As to the claimed "false promises," there is no dispute that the
Winigs had told at least some of the workers at the Amsterdam plant at
the time they were hired that the employees there would be covered by
medical insurance But the arrangement the Winigs were counting on fell
through and. on May I I, the employees all received letters advising that
medical coverage would not be provided until some future time: See
GC. Exh. 4
4 Gonzales did not file a charge and is not referred to In the complaint
lated two plant rules. They left their machines without
getting permission to do so and they left the plant with-
out punching out. Go-Lightly has no written set of plant
rules. But the testimony at the hearing makes it clear that
all employees knew of and generally obeyed both of
these rules.
Once outside, Lindquist, Lais, and Gonzales talked to
the reporter for awhile "about Gladys [Majewski] being
fired and what we felt was favoritism shown in the mill
and about what we thought was false advertising in the
paper concerning jobs," carried placards for awhile and,
apparently, just talked among themselves (with Ma-
jewski) for awhile. They concluded that they should
speak directly to Norbert Winig about what they saw as
Brandt's unfair supervisory practices. But they dropped
that course of action when a union organizer arrived and
instead talked over the matter with her. After that talk
Gonzales and Lindquist returned to work at the plant, at
or about 2:30. Lais went home.
Meanwhile, inside the plant, word had spread that Ma-
jewski had a gun. That completely unnerved the already
tense Brandt, so that Go-Lightly's chief mechanic, rather
than Brandt, undertook to call Norbert Winig and, subse-
quently, the police about the matter. The activities by
Majewski and her associates were completely peaceful,
however, and there is no evidence whatever that Ma-
jewski had a gun, much less contemplated using one.
That evening Brandt met with Norbert Winig while
she was still badly scared and upset. She told Winig that
she felt endangered by the situation at the Amsterdam
plant and refused to go back there. She did not mention
any placards, picketing, newspaper reporters, or even the
absence of Lindquist, Lais, and Gonzales.
Then, on Sunday, Norbert Winig advised Robert
Winig of what Norbert knew of Friday's circumstances,
a narrative limited to matters about Brandt's concerns for
her physical safety and about an ex-employee possibly
carrying a gun outside the plant.
On Monday, Vargas returned to the plant. Vargas no
longer works for Go-Lightly and did not testify. But ac-
cording to the testimony of Lais and Lindquist, which I
credit, they told him that they walked out because Ma-
jewski was fired and because of Brandt's favoritism. Ac-
cording to Robert Winig, he and Vargas did discuss Fri-
day's events on Monday, but that Vargas limited the dis-
cussion to the fact that Lindquist, Lais, and Gonzales
had left the building without getting permission to do so
and without clocking out. Vargas also mentioned that a
number of other employees were angry that the three
seemed to be getting away with those violations of the
rules. Winig visited the Amsterdam plant, checked the ti-
mecards, and ordered Vargas to fire Lindquist, Lais, and
Hernandez. As far as Robert Winig was concerned, "we
always had a precedent that if people walked off the job,
it was automatic, in my mind, that they quit their job."
Later that day, Go-Lightly's chief mechanic amplified
Vargas' description of Friday's events, mentioning,
among other things, that there had been some signs "that
some people had been walking around with out front"
and that one of the signs said, "Go-Lightly Employs
Scab Labor." He also told Robert Winig that he saw
GO-LIGHTLY FOOTWEAR, INC
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lais, Lindquist and Gonzales with Majewski, talking to
a reporter. 5
Meanwhile Vargas followed Winig's order to fire the
three workers and the resulting discharges led Lindquist
and Lais to file the charges that led to this proceeding.
THE PARTIES' POSITIONS
The General Counsel argues that the above facts rep-
resent a clear case of the Company firing three employ-
ees because of the employees' participation in activity
that is protected by the Act.
The Company argues that: (1) the General Counsel
should have called as witnesses such relatively disinter-
ested persons as the newspaper reporter and a police of-
ficer who visited the picketing site and that the General
Counsel's failure to present this "best evidence" ought to
be reflected in the Board's findings of fact; (2) the em-
ployees were obligated to bring their complaints to the
Winigs before walking out since the Winigs kept them-
selves available to Go-Lightly's employees; (3) there was
no showing that the three employees' activity was ad-
dressed to work-related complaints or grievances, or that
it furthered a group purpose; (4) it was not shown that
Go-Lightly had any knowledge of the nature of the
three employees' activities; (5) the three employees were
fired solely for leaving the plant without permission, and
not because of their picketing or other such activity; and
(6) focusing on Lais, in particular, she did not return to
the plant even when the others did.
ANALYSIS, CONCLUSIONS, AND FURTHER FINDINGS
OF FACT
The activity in question was concerted, obviously, and
did relate to wages and working conditions. The plac-
ards were not models of clarity. But they are not re-
quired to be. And a walkout in support of a discharged
employee, plus picketing outside a plant with placards
refering to unkept promises by the employer, to scab
labor, and to unfairness to minorities, reasonably relates
to matters protected by the Act: See, e.g., Diagnostic
Center Hospital Corp. of Texas, 228 NLRB 1215, 1217
(1977). Nor is there any requirement that Gonzales, Lais,
and Lindquist had to undertake less drastic forms of pro-
test before walking off their jobs: See N.L.R.B v. Wash-
ington Aluminum Co., 370 U.S. 9, 14-15 (1962); Audio
Systems, Inc., 239 NLRB 1316 (1979).
Finally, as regards the employees' conversations with a
reporter, the reporter was advised of the placards (and
took photographs of them), and was told about Go-
Lightly's alleged favoritism and misleading employment
advertisements. That too adds up to protected activity
since employees do not lose the Act's protections merely
because they choose to use "channels outside the imme-
diate employer-employee relationship": Eastex, Inc. v.
N.L.R.B., 437 U.S. 556, 565 (1978); see also Allied Avi-
ation Service Co., 248 NLRB 229 (1980).
The three employees did violate company rules when
they walked out during working hours without punching
out and without notifying their supervisor. But activity
5 General Counsel argues that the chief mechanic was a Go-l.ightly
supervisor. But the evidence does not show that to be the case.
that is otherwise protected does not lose that protection
because of violations of those kinds of work rules: e.g.,
Ontario Knife Co., 247 NLRB No. 168 (1979). Had the
employees engaged in a series of short-term walkouts, or
even if they had planned to do so, the existence of those
rules could be significant: See, e.g., Polytech, Inc., 195
NLRB 695, 696 (1972). But there was only one walkout
here and no evidence of any plan to undertake any more.
As to the company's claimed lack of knowledge of the
three employees' activities, it is true that ordinarily a
showing of knowledge by the employer of the concerted
activity in question is a necessary element in finding a
violation of the Act: e.g., Diagnostic Center Hospital
Corp., supra , 228 NLRB at 1216. But that does not help
Go-Lightly since the Company did have that knowledge.
Lais and Lindquist described their activities to Celso
Vargas, an admitted supervisor, before the Company
fired them. Further, no more than a few hours after the
three employees were fired, and perhaps before they
were, Robert Winig was told about the employees' pick-
eting. And finally, Brandt, whom I find to be a Go-
Lightly supervisor, knew about Majewski's picketing and
saw Gonzales, Lais, and Lindquist leave together.6 How-
ever upset Brandt may have been, the protection the Act
would otherwise accord the three employees can hardly
be denied in these circumstances because of Brandt's un-
willingness to look out the window.
I have considered the Company's claim that Lais
should not be entitled to the protection of the Act given
her decision to go home, rather than back to work, after
the events outside the plant ended. But as I add up the
evidence, that decision was an integral part of Lais' pro-
test about the conditions of employment at the Go-Light-
ly plant. Thus, Lais' refusal to work for the rest of the
day was protected activity. In any case, Go-Lightly fired
all three employees, not just Lais. And the Company
made no distinction between how it should react to Lais'
activities when she was acting directly in concert with
her fellow employees and how the Company should
react to her departure for the remainder of the day.
Since the Company did not distinguish at the time it
fired her between these two facets of Lais' behavior, it
can not properly do so now.
Finally, as to the General Counsel's failure to call as
witnesses a reporter and a police officer who were pres-
ent at the picketing, the General Counsel had no obliga-
tion to do that. Accordingly, no presumptions should be
made because he did not. Neither person is or was em-
ployed by the General Counsel or was otherwise shown
" The Company admits that Brandt was a supervisor of employees at
the Gloversville plant. Go-Lightly claims, however, that she did not have
supervisory authority at the Amsterdam plant. But a distinction of that
kind makes no sense when the issue is one of the employer's knowledge
of an event. Moreover, since Brandt had been asked by the Winigs if she
"would take over the [Amsterdaml plant while [Vargas] was gone" and
had done so, she was a Go-Lightly agent for purposes of keeping track f
personnel matters for the Winigs Finally. Brandt was a supervisor in her
work at the Amsterdam plant. She replaced Vargas. an admitted supervi-
sor; if Brandt were not a supervisor it would mean that during most If
the period in question a plant of 60 workers would not have had a super-
visor present; Hrandt assigned work to employees and rdered correc-
tions; and the Amsterdanm employees clearly thought 1f her as a supervi-
sor and representative of management
GO-LIGHTLY FOOTWEAR, INC. 45
to be under his control. The Company was in as good
position to subpena the two as was the General Counsel.
Since it chose not to, it may not now complain about the
lack of testimony from those two witnesses.
CONCLUSIONS OF LAW
1. Go-Lightly Footwear, Inc., is an employer within
the meaning of Section 2(2) and Section 8(a)(1) of the
Act.
2. Go-Lightly terminated its employment of Cindy L.
Lais and Cathy C. Lindquist because Lais and Lindquist
engaged in concerted activity for the purpose of mutual
aid and protection.
3. Go-Lightly accordingly interfered with, restrained,
and coerced employees in the exercise of the rights guar-
anteed to employees in Section 7 of the Act, an unfair
labor practice in violation of Section 8(a)(l) of the Act.
4. That unfair labor practice affected commerce,
within the meaning of Section 10(a) of the Act.
THE REMEDY
The recommended Order will require Go-Lightly to
cease and desist from interfering with employees in the
exercise of their Section 7 rights by discharging employ-
ees who engage in concerted activity for the purpose of
mutual aid and protection. 7
The recommended Order will also require Go-Lightly
to make Lais and Lindquist whole for any loss of earn-
ings they suffered as a result of their discharge by Go-
Lightly. Loss of earnings shall be computed as pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 8
Finally, Go-Lightly will be required to notify its em-
ployees of the action being ordered by the Board.
Upon the foregoing findings and conclusions, and
upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER9
The Respondent, Go-Lightly Footwear, Inc., Amster-
dam, New York, and its officers, agents, successors, and
assigns, shall:
I will recommend that Go-L.ightl) also be required to cease and
desist from violating the Sec. 7 rights of employees in any like or related
manner: See Hicknmon FWod. Inc., 242 NLRB 1357 (1979).
' Following the filing of the charges that led to the institution of this
proceeding. Go-Lightly offered Lindquist and Lais reinstatement effec-
tive July 30. 1979 Lais returned to Go-Lightly Lindquist did not.
9 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
I. Cease and desist from:
(a) Discharging any employee by reason of the em-
ployee's concerted activities for the purpose of mutual
aid or protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Cindy L. Lais and Cathy C. Lindquist whole
for any losses they may have suffered by reason of their
discharge by Go-Lightly, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other documents nec-
essary to analyze and compute the amount of backpay
due under this Order.
(c) Post at its Amsterdam, New York, facility copies
of the attached notice marked "Appendix."'° Copies of
said notice, on forms to be provided by the Regional Di-
rector for Region 3, after being duly signed by Go-
Lightly's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Go-Lightly shall take reasonable
steps to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Go-Lightly
has taken to comply with this Order.
ings. conclusions. and recommended Order herein shall. as pros ided in
Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I' In the event that this Board's Order is enforced bh a Judgment of
the United States Court of Appeals, the words in the notice reading
"Posted bh Order of the National Labor Relations Board" shall read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board"
GO-LIGHTLY FOOTWEAR, INC 5