Interlink Cable Systems

National Labor Relations Board - Board Decisions

Aug 10, 1987

285 N.L.R.B. 304 (N.L.R.B. 1987)

304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Interlink Cable Systems and Lorraine Kilcbesty.
Case 4-CA-15346
10 August 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 16 March 1987 Administrative Law Judge
Irwin Kaplan issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the ,fudge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
Member Johansen finds it unnecessary to adopt the judge's finding that
the concerted activity was unprotected
Margaret M. McGovern, Esq., for the General Counsel.
Pershing N. Calabro, Esq., of Philadelphia, Pennsylvania,
for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in Philadelphia on 16 October 1986. The un-
derlying charges were filed by Lorraine Kilchesty, an in-
dividual, on 2 October 1985 alleging that Interlink Cable
Systems (Respondent) discharged Kilchesty and other in-
dividuals employed by Respondent because they con-
certedly refused to sign warning slips. These charges
gave rise to a complaint and notice of hearing dated 26
June 1986 alleging that Respondent discharged employ-
ees Rita Passaro and Theresa Palmer for engaging in
protected concerted activities, namely, concertedly refus-
ing to sign warning slips, and that Respondent thereby
violated Section 8(a)(1) of the National Labor Relations
Act.
The Respondent filed an answer, conceding, inter alia,
jurisdictional facts but denying that it discharged any of
the employees in question or that it committed unfair
labor practices. According to the Respondent, the em-
ployees involved in this proceeding quit their' employ-
ment rather than obey reasonable rules and regulations
issued by the Employer.
Based on the record as a whole, including my observa-
tion of the demeanor of the witnesses, and after careful
consideration of the posttrial briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, Interlink Cable Systems, a Pennsyl-
vania corporation, is engaged in the manaufacture of
wire cables at its facility at 2041 South 29th Street,
Philadelphia, Pennsylvania. During the past year, in con-
nection with the aforenoted business operations, Re-
spondent sold and shipped products valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania.
The Respondent admits, the record disclosed, and I
find that it is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
On 1 October 19851 two supervisors and three produc-
tion employees were docked 15 minutes, as reflected on
their timecards, assertedly for returning late to their
work stations from lunch. According to Gaetan Simirig-
lio, Respondent's vice president, these individuals had-
punched their timecards that day at 12:54 or 12:55 p.m.,
but extended their lunch period instead of resuming
work at 1 p.m., as required.
The next day, 2 October, Simirglio spoke to this group
about lateness and gave out warning slips under circum-
stances as follows: while this group of supervisors and
production employees were in the lunchroom taking
their 10 a.m. break, Simiriglio stopped by and told them
to wait for him to return because he had something to
say. The group consisted of Lorraine Kilchesty and
Donald Aros, both supervisors, and production employ-
ees John McKinley, Rita Passaro, Theresa Palmer, and
'Caryn Fortuno.
Shortly thereafter, Simiriglio returned, carrying the
personnel folder of Jane Orem, a discharged employee
and warning notices for each member of the group with
the exception of Fortuno, a newly hired employee. Si-
miriglio told the group that former employee Orem had
wrongfully filed for unemployment compensation and
had lied on her form about not receiving warnings. Thus,
Simiriglio explained, he was issuing these "Employee
Warning Notices" to protect himself from similar unem-
ployment compensation claims. Each of these standard
warning forms contained a list of nine company rule vio-
lations with corresponding boxes. Simiriglio had checked
the box for "lateness" on each of the warning slips and
noted under the remarks section, "failure to obey verbal
i All dates hereafter refer to 1985 unless otherwise indicated
285 NLRB No. 44
INTERLINK CABLE SYSTEMS
warning." Various members of the group protested, de-
nying that they were late. Further, they told Simiriglio
that this action was not fair, pointing out that he had not
given them any verbal warnings. Kilchesty and Aros
told Simiriglio that as supervisors they should be exempt
and in any event, the warning slips were "childish . .
like being in Kindergarten again " Simirigho explained
that lateness had been widespread and told Kilchesty and
Aros that on "many occasions" he had warned them "to
see that the other employees got back to work on time,
let alone themselves." With regard to the extended lunch
on 1 October, Simirigho told the employees that he had
an employee of his brother's firm (located in the same
building) confirm that they were late by having him
punch a timecard showing 1:01 p.m, at which time Re-
spondent's employees had not yet returned to their work
stations
Rita Passaro asked Simiriglio, "What would happen if
I don't sign the slip?"2 According to Passaro, with cor-
roboration from Kilchesty and Palmer, Simiriglio told
the group, "If we didn't sign [the warning slips], to pick
up our paychecks and leave." According to Simiriglio,
he merely stated, "You can't go back to work yet." Si-
miriglio asked the employees to let him know what they
were going to do and left the room. After Simiriglio had
departed, Kilchesty told the other members of the group
that she would not sign because she had not been verbal-
ly warned and in any event denied that she had been
late. The other members, as a group, also refused to sign
for the same reasons and McKinley gathered the un-
signed warning slips and went into Simiriglio's office
According to Kilchesty, she and the other members of
the group returned to their work stations to collect per-
sonal belongings on the assumption that they had been
fired.
In Simirigho's office, McKinley told Simiriglio that no
one was going to sign a warning slip and although
McKinley was inclined to do so, he did not want to
cause any problems with the group. Simiriglio told
McKinley to tell the group that they could not go back
to work until they sign. This directive was then passed
on by McKinley to the members of the group, but they
still refused to comply. When Simiriglio learned that the
group was adamant about not signing he told McKinley
to tell them to punch out and go home 3
The following morning, 3 October, McKinley told Si-
miriglio that he was willing to sign the warning slip, did
so, and was permitted to return to work. The other
members of the group have not signed and have not re-
turned.
2 I credit Passaro, although both Kilchesty and Palmer testified that
Passaro used the plural pronoun "we" when she inquired of Simiriglio
regarding the consequences for failing to sign the warning slips I ques-
tioned Passaro on this point and her response was consistent with her
earlier testimony and categorical vis-a-vis the pronoun "I " However, as I
am persuaded (for reasons discussed infra) that the group acted con-
certedly, I do not deem the conflict material on this issue
a The record is somewhat in dispute whether Simiriglio also told the
employees to pick up their paychecks as testified by the General Coun-
sel's witnesses or whether the employees asked for their paychecks, as
testified to by Simiriglio
B Discussion and Conclusions
305
The essence of the General Counsel's case is that em-
ployees Rita Passaro and Theresa Palmer concertedly re-
fused to sign warning slips and, as this action was work
related and undertaken for their "mutual aid or protec-
tion" within the meaning of Section 7 of the Act,4 they
(Passaro and Palmer) were, absent other misconduct,
immune from discipline. Here, the discipline allegedly in-
volved unlawful terminations. According to Respondent,
these employees had "quit" and were not "fired." More-
over, Respondent denied that the action in question was
concerted and/or protected. As noted by the General
Counsel, "these elements are independent requirements
and both must be present, if the action is not undertaken
in concert, it is not protected by the statute." See gener-
ally Meyers Industries, 281 NLRB 882 (1986).
In agreement with the General Counsel, I find that the
record clearly established that employees Passaro and
Palmer acted in concert with each other, as well as with
Supervisors Kilchesty and Aros and employee McKinley
and that Simiriglio understood that all these individuals
acted as a group.5 Thus, it is undisputed that on 2 Octo-
ber, at the time Simiriglio handed out written warnings
to the aforenamed five individuals, he confronted them
as a group about their lateness Further, when the entire
group protested the justification for this action and Si-
miriglio was asked about the consesquences for refusing
to sign the warning notices, he left these individuals to
deliberate by themselves as a group and to advise him of
their decision. Simiriglio had conveyed to the members
of the group that they had to sign before they could
resume working. In Simiriglio's absence, all five individ-
uals collectively decided that 'they would not sign and
the unsigned warnings were then collected and given to
McKinley to turn over to Simiriglio along with the
group's negative response.
While McKinley was transmitting the group's decision
to Simiriglio, in the latter's office, the other members of
the group began to gather their belongings just before
punching out and leaving the facility. Kilchesty, Passaro,
and Palmer testified that they understood Simirigho's
message to mean that they either had to sign or leave the
premises because they were discharged. McKinley, for
his part, expressed reservations about not signing, but de-
cided to stick with the group's decision, at least as of 2
October.
Finally, it is noted, that Simiriglio's testimony is inter-
nally consistent with the notion that Passaro and Palmer
as well as the other members of the group acted in con-
cert. As testified by Simiriglio. "They were always in a
group, they always acted as a group." In these circum-
stances, and on the entire state of this record, I am per-
4 Sec 7 in pertinent part provides
Employees shall have the right to self-organization to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection [ Emphasis added ]
5 The General Counsel represented that Kilchesty and Aros were not
named in the complaint because as statutory supervisors they are denied
protection under the Act and that employee McKinley elected not to be
involved
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suaded and find the General Counsel has clearly estab-
lished that Passaro and Palmer as well as the other mem-
bers of the group acted in concert when they refused to
sign the warning slips. Whether this concerted action
was protected poses a more difficult question.
The record disclosed that Respondent has long main-
tained a general policy of issuing written warnings for
various infractions of company rules including lateness.
The employees were expected to sign this notice indicat-
ing, "I have read this notice and understand it." (G.C.
Exh. 2.) This policy was not uniformly disseminated nor
enforced On 2 October Simiriglio became more agres-
sive in implementing this policy. According to Simirig-
lio, lateness was widespread and a recently discharged
employee, Jane Orem, had lied on her claim for unem-
ployment coverage by denying that she had e%er been
warned. This was all explained to the group by Simirig-
lio on 2 October when he issued the disputed written
warnings He told the group on that occasion that he
was issuing these warnings to protect himself from future
claims similar to that filed by Orem. In particular, Simir-
iglio told the employees that these warning notices were
based on their lateness in returning from lunch on the
previous day. Earlier that morning, 2 October, when the
employees reported for work, they discovered that their
timecards reflected that they would be docked 15 min-
utes for an extended lunch period. Thus, in addition to
being docked in pay for lateness, the employees now re-
ceived written warnings that Simirglio wanted signed.
As noted previously, the employees denied that they
were late and contended that these warnings were unfair.
The record tends to support, and I find, that the em-
ployees were late in returning from lunch on 1 October
as contended by Simiriglio. Thus, Simiriglio credibly tes-
tified that the employees were still in the lunchroom at
1:01 p.m. at which time they began to walk back to their
work stations, although their cards were punched at
12:54 or 12:55 p in. Simiriglio's testimony is largely con-
firmed by General Counsel' s witness Kilchesty, who ad-
mitted that after she and the other members of the group
had punched out at 12:54 and 12:55 p.m., they did not
immediately go back to their work station, but returned
to the lunchroom for a few minutes As the timeclock
and lunchroom are some 200 feet away from the employ-
ees' work stations , I find it highly unlikely that they had
returned from lunch to their work station on time at 1
p.m.
It may be said that docking employees 15 minutes pay,
if only 1 minute late, by itself, is unduly harsh, let alone
issuing and then requiring these employees to sign warn-
ing slips for the same infraction. However, the witnesess
or fairness of such measures are not in issue. In Bird En-
gineering, 270 NLRB 1415 (1984), employees concertedly
ignored, as unfair, a newly established company rule, ef-
fective immediately, prohibiting them from leaving Re-
spondent's facility during their work shifts. Prior to this
time, employees had followed a practice of punching in
and out from lunch when leaving and returning to the
facility One of these employees complained to the Re-
spondent that the rule was unfair and noted that he did
not have his lunch inside the plant (presumably because
the new rule was announced that day). The employees
ignored Respondent's warnings, clocked out in protest,
and were discharged. In finding that the employees acted
concertedly but were unprotected in the manner they
elected to defy the new rule, the Board reasoned, in per-
tinent part, as follows:
These employees did not engage in a strike, with-
holding of work, or other permissible form of pro-
test to demonstrate their disagreement with the Re-
spondent's rule Instead they simply chose to ignore
the rule in direct defiance of the direction and
warnings of management. By treating the rule as a
nullity and following their pre-rule lunchtime practice
they did not participate in a legitimate protected exer-
cise but rather engaged in insubordination . These em-
ployees were attempting both to remain on the job
and to determine for themselves which terms and
conditions of employment they would observe.
[Emphasis added ]
It is well settled that unrepresented employees who
are without the benefit of an established grievance proce-
dure, as in the instant case, have a right under Section 7
of the Act, to give expression to their concerted protest
over terms , tenure, and conditions of employment.
NLRB v. Washington Aluminum Co., 370 U .S. 9 (1962).
At the same time, however, it must also be noted that
Section 7 does not protect all concerted activities. Wash-
ington Aluminum , supra at 17 The parameters delineat-
ing permissable concerted activity that is protected from
impermissible forms of concerted protest are generally
determined by a plethora of factors on a case-by-case
basis. As noted by the Board "the precise contours
within such activity (concerted protest concerning work-
ing conditions) is protected cannot be defined by hard-
and-fast rules. Instead , each case requires many relevant
factors be weighed ." Waco Inc., 273 NLRB 746 (1984);
see also Bird Engineering , supra.
On one hand , in the circumstances of Washington Alu-
minum , supra, employees walked off the job to protest
the cold conditions in the plant and were protected; on
the other hand, in Waco Inc., supra, a concerted work
stoppage was unprotected when employees remained in
Respondent 's lunchroom for some 3 - 1/2 hours in protest
of other employees who were discharged or forced to
quit under purportedly unjust circumstances . In Waco,
the employees also demanded that their manager meet
with them as a group but he refused on that basis. In-
stead , he indicated a willingness to meet them individual-
ly in his office . The manager told the group they must
choose either to return to work , in which case he prom-
ised to meet with them individually , or to punch out and
leave the premises. The employees remained in the
lunchroom for a substantial period giving no indication
that they were going to accept either alternative and, fi-
nally, later in the morning they were discharged. The
Board found , inter alia , that "they [the employees] had
overstepped the boundary of a spontaneous work stop-
page and were occupying the facility in a manner which
was unprotected "
In the instant case, the circumstances present a hybrid-
like situation . The employees never spoke of or engaged
INTERLINK CABLE SYSTEMS
in a strike, work stoppage, or some other form of self-
help, where, absent misconduct or unusual circum-
stances, such conduct is protected 6 Instead, the group's
self-help consisted solely of defying Simirigho's orders.
In effect, the group attempted to dictate for themselves
which of Simiriglio's orders or terms of conditions of
employment it would observe. The group left the facility
only when Simiriglio ordered them to punch out and
leave and only after they had an opportunity to deliber-
ate and make clear to their employer that they were not
going to sign.?
According to the General Counsel's witnesses, signing
the warning is tantamount to an admission . This percep-
tion was not communicated to Simirigho . Rather, the
members of the group denied that they had been late (a
denial found herein to be inconsistent with the admitted
facts), and they complained that it was unfair. Simiriglio,
on the other hand, asserted, with some documentary sup-
port , that the signature represents merely an acknowl-
edgement that the employee has received a warning and
understands it The warning notice itself makes no refer-
ence to any admission, but states , "I have read this notice
and understand it." It is also noted that the notice pro-
vides substantial space under the heading "Remarks" for
an employee to state his or her position As no employee
signed "under protest" and as the matter had not been
raised , I need not speculate regarding the consequences
of doing so.
The composition of the group (two of the five mem-
bers were supervisors) presented an additional challenge
to Simiriglio, This challenge was compounded when the
two supervisors told Simiriglio, in the presence of the
other employees, that the warning slips were "childish
. . . like being in kindergarten again ." Further, as credi-
bly testified by Simiriglio, without contradiction, they
appealed to him to exempt them from the slips on the
basis of their supervisory status. Simirigho refused , point-
ing out that he expected them to ensure punctuality from
their subordinates no less the fact that they too were
late.
In the total, circumstances of this case, I am persuaded
that the group 's refusal to sign the warning slips, without
more, falls short of protected self-help, when weighed
against Respondent 's right to maintain overall discipline
by imposing rules, even if newly established or invoked.
In short, I find that the concerted activities of Rita Pas-
saro and Theresa Palmer are unprotected by the Act.
Having found that these concerted activities were not
protected, a fortiori, Respondent was free to invoke dis-
ciplinary measures including discharge. See NLRB v.
Electrical Workers IBEW Local 1229, 346 U.S. 464, 477
(1953) ("The legal principle that insubordination, disobe-
dience or disloyalty is adequate cause for discharge is
plain enough"); see also Waco, Inc., supra; Bird Engineer-
6 Compare Johnnie Johnson Tire Co, 271 NLRB 293 (1984) (a brief
work stoppage was protected that involved employees leaving their work
stations to complain to Respondent about reduction in pay before return-
ing to work), Douglas Aircraft Co, 260 NLRB 1354 (1982) (a protected
employee distributed literature to fellow employees in protest over a
manager's institution of new rules)
7 Simiriglio noted that while the employees were on the premises with-
out clocking out and defying his orders , they were still on company time
307
ing, supra. Still, I find, for reasons noted below, that the
record falls short of establishing that the employees were
discharged as alleged. Thus, assuming arguendo, the ac-
tivities were protected, I find that the General Counsel
has not demonstrated by a preponderance of the credible
evidence that Simirigho discharged Passaro and Palmer.
It is undisputed that none of the employees expressly
stated that they were "quitting "; nor did Simiriglio tell
any of them that they were "fired," "discharged," or
"terminated " the test, in such circumstances, is whether
Simiriglio 's statements and action would reasonably
cause employees to believe that they had been dis-
charged. C. J. Krehbiel Co., 227 NLRB 383, 384 (1976);
Pink Supply Corp., 249 NLRB 674, 679 (1980).
The record disclosed that when it became clear that
the employees were not going to sign the warnings, Si-
mirigho told the employees to punch out and leave the
facility.8 Simiriglio testified that they had to clockout be-
cause they were on company time in the lunchroom. A
short time earlier, Passaro had asked Simiriglio about the
consequences and the latter insisted that they sign or
punch out and leave the premises. According to the
General Counsel , Simiriglio's statement was tantamount
to a discharge. Given the total circumstances, for reasons
noted below, I cannot concur.
The record revealed certain significant facts that tend
to militate against the discharge allegation or that em-
ployees reasonably believed that they were discharged.
First, as testified by Kilchesty, after Simiriglio told the
group of the consequences they faced for refusing to sign
(in response to Passaro's inquiry), he asked them to let
him know of their decision. Clearly, if they were already
discharged, there would be no reason for Simiriglio to be
further advised Rather, I find that Simiriglio by his
statements and action merely withheld permission to the
group to resume working unless they signed the warning
slips. Simiriglio 's condition in that regard was unambig-
uous. However, the group remained adamant in their re-
fusal to comply. As testified to by Kilchesty, they had
already punched out and gathered their belongings while
employee McKinley was transmitting the groups nega-
tive response.
Also militating against the discharge allegation is the
experience of McKinley the following morning. On the
morning of 3 October, McKinley told Simiriglio that he
was willing to sign the warning slip, did so, and resumed
working immediately. The record is devoid of any evi-
dence tending to show that had any other member of the
group taken the same action that he or she would have
been treated differently. On the contrary, McKinley's
8 According to the General Counsel's witnesses , Simiriglio also told
them to pick up their paychecks Simirigho, on the other hand, testified
that the employees requested their paychecks before leaving the premises
and he merely accommodated them In crediting Simiriglio over the
General Counsel's witnesses , it is noted , inter alia, that largely on the
bases of logistics, I had previously found that the General Counsel's wit-
nesses had not testified credibly whether they were actually late on 1 Oc-
tober as testified to by Simirigho Moreover, it is noted that Kilchesty
and Palmer testified that Passaro asked Simiriglio what would happen if
"we" did not sign the slips whereas Passaro insisted that she used the sin-
gular pronoun "I " This conflict tends to cast further doubt on the over-
all credibility of the General Counsel's witnesses
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
compliance and return to work, admittedly known to at
least Kilchesty, tends to belie any notion of futility, yet,
neither Kilchesty, nor any other member of the group,
inquired of S1mlriglio about their employment status.
As noted previously, the group never spoke of a strike
or work stoppage. In the circumstances of this case,
without more, Respondent's contention that the employ-
ees "quit" has some appeal. Compare Daniel Construction
Co, 277 NLRB 795 (1985) (each employee who had left
the premises stated an intent to return the following
day). It may be that here the employees quit, but also
hoped that Simiriglto would countermand his disputed
orders and urge them to return. In any event, I need not
make that finding as the burden is clearly on the General
Counsel to establish, prima facie, that the emloyees rea-
sonably believed that they were discharged. See Pink
Supply, supra (burden not met even though employees
expressly communicated to their employer that they
were not quitting).
On the basis of the foregoing and on the entire state of
this record,9 I find that the General Counsel has failed to
9 While not dispositive of the discharge allegations or related issues, I
have noted that the unemployment compensation claims of Theresa
Palmer and Rita Passaro were denied by the Commonwealth of Pennsyl-
vania, Department of Labor and Industry, Office of Employment Secun-
ty on the basis that these individuals had voluntarily terminated their em-
establish by a preponderance of the credible evidence
that Palmer and Passaro were discharged as alleged.
Having previously found that the concerted activities
of Rita Passaro and Theresa Palmer are unprotected by
the Act, I shall recommend that the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Interlink Cable Systems is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Respondent
violated Section 8(a)(1) of the Act.On these findings of
fact and conclusions of law and on the entire record, I
issue the following recommended' 0
ORDER
The complaint is dismissed in its entirety.
ployment (R Exhs 2, 3 (a)-(b)) Western Publishing Co, 263 NLRB 1110
fn 1 (1982)
io If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses