Kysor Industrial Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1992

309 N.L.R.B. 237 (N.L.R.B. 1992)

237
309 NLRB No. 24
KYSOR INDUSTRIAL CORP.
1 These employees went to work immediately on receiving their
assignments.
2 Amelio’s, 301 NLRB 182 (1991).
3 The extent to which employee activity is protected depends on
its nexus to legitimate employee concerns about employment-related
matters. In other contexts, where there have been employee commu-
nications to third parties seeking assistance in an ongoing labor dis-
pute, the Board has declared that the protected nature of employee
activity depends on the extent to which it is ‘‘a part of and related
to the ongoing labor dispute’’ (emphasis in original). Allied Aviation
Service, 248 NLRB 229, 231 (1980), enfd. 636 F.2d 1210 (3d Cir.
1980). The Supreme Court has stated that ‘‘some concerted activity
bears a less immediate relationship to employees’ interests as em-
ployees than other such activity. We may assume that at some point
the relationship becomes so attenuated that an activity cannot fairly
be deemed to come within the ‘mutual aid or protection’ clause.’’
Eastex, Inc. v. NLRB, 437 U.S. 556 at 567–568 (1978). Here, the
employees banded together as a group to seek clarification of their
current work assignments. That clearly bears an ‘‘immediate rela-
tionship’’ to terms and conditions of employment.
Kysor/Cadillac, an Operating Division of Kysor In-
dustrial Corporation and Local 545, Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW), AFL–CIO. Case 7–CA–31823
October 15, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On January 31, 1992, Administrative Law Judge
Bernard Ries issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent did not violate
Section 8(a)(1) by issuing reprimands to six employees
because of their concerted protected activities. The
issue is whether the employees’ conduct in approach-
ing their supervisor’s desk on March 13, 1991, to ask
for clarification of their work assignment constituted
concerted protected activity and, if so, whether the Re-
spondent violated the Act by issuing the reprimands.
For the reasons set forth below, we find that the em-
ployees’ activity was protected by the Act and that the
Respondent violated Section 8(a)(1) by issuing rep-
rimands on the basis of the protected activity.
The complaint alleged the Respondent issued the
reprimands ‘‘because of its employees concerted pro-
tected activities including concertedly complaining to
Respondent regarding its memorandas [sic] of March
11 and 12, 1991, in regard to job classifications and
work stations.’’ The evidence, as more fully set forth
in the judge’s decision and briefly described here, dis-
closes that on March 13 there was a discussion in the
lunchroom among employees who were confused
about their work assignments. This confusion origi-
nated as a result of two apparently conflicting notices
that had just been issued. A group of about 15 employ-
ees went to the foreman’s desk to ask him where to
work. Seeing the crowd, the supervisor asked what
they were doing there and told them to get to work.
Some of the employees disbursed immediately, but six
others remained behind for specific instructions as to
their work assignments.1 Five of these employees were
issued verbal reprimands reduced to writing and one
was issued a written reprimand because he had re-
ceived a verbal reprimand the previous day. The five
verbal reprimands were subsequently rescinded by the
Respondent at the Union’s request.
The judge, in his analysis, framed the issue as one
of determining whether the Respondent understood, or
should have understood, that the employees were en-
gaging in a concerted complaint about an ambiguity
arising from the allegedly contradictory notices. In the
judge’s view, merely assembling at the supervisor’s
desk did not communicate to the Respondent that there
was an ambiguity about work assignments stemming
from its notices. The fatal flaw, according to the
judge’s reasoning, was that ‘‘[t]here is no testimony in
the record that anyone, at any time, indicated to Re-
spondent that the group arrival was related to confu-
sion about the effect of the two notices.’’ Therefore,
the Respondent, according to the judge, had no reason
to regard this activity as protected because all the Re-
spondent knew was that the employees had assembled
‘‘to get the work assignment for the day.’’ As noted
above, the judge found the activity unprotected. We
disagree.
Section 8(a)(1) is violated if the Respondent knows
of its employees’ concerted activity, if the activity is
protected by the Act, and if adverse employment ac-
tion is motivated by the employees’ protected con-
certed actions.2 The judge found, and we agree, that
the Respondent knew of the concerted nature of the
conduct. The judge found that the activity was not pro-
tected because of his restrictive focus on the Respond-
ent’s apparent lack of knowledge as to the source of
the employees’ confusion about their work assign-
ments. We find that the employees’ conduct was un-
dertaken in good faith and was protected. The violation
turns on the fact that the employees were reprimanded
for concertedly seeking information about their work
assignments, a term and condition of employment.3 As
soon as the Respondent was factually aware or put on
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We also find that the Respondent knew, or should have known,
that the employees’ conduct had a ‘‘protected’’ purpose based on the
employees’ statement that they had assembled to get their work as-
signment.
5 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
notice4 that the employees were making a concerted
inquiry, the Section 7 protections of the Act attached
to the employee conduct concerning their work assign-
ment, notwithstanding the fact that the Respondent
may not have been aware of the legal significance of
that conduct. Thus, we find that the General Counsel
has established a prima facie case that the Respondent
unlawfully issued reprimands to employees for engag-
ing in protected concerted activity. The Respondent,
therefore has the burden of establishing that the rep-
rimands would have been issued even in the absence
of the protected concerted activity.5 The Respondent
has not offered any explanation for the reprimands
other than that they were given to the members of the
group who ‘‘hung around and wanted specific direc-
tions.’’ That was not misconduct on the facts of this
case. The remaining employees of the original group
received no discipline, according to the first-shift su-
pervisor, Charles Cooper, because ‘‘[t]hey went back
to work.’’ The Respondent has thus failed to meet its
burden. Thus, we conclude that the Respondent vio-
lated Section 8(a)(1) by disciplining employees for en-
gaging in the protected concerted activity of making a
group inquiry as to their specific work assignments.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. By issuing a written warning to its employee
Kevin Gostlin on March 14, 1991, and by issuing
verbal warnings reduced to writing to its employees
Larry Widgren, Tim Gostlin, George Fisher, Teresa
Keeler, and Kevin Lattimer on March 14, 1991, be-
cause of their protected, concerted activities, the Re-
spondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.’’
THE REMEDY
Having found that the Respondent interfered with,
restrained, and coerced certain employees in the exer-
cise of their Section 7 rights by issuing warnings to
them on March 14, 1991, we shall order that the Re-
spondent cease and desist and take certain affirmative
action designed to effectuate the policies of the Act.
We shall order the Respondent to remove from its
records, if it has not already done so, the written warn-
ings directed to Kevin Gostlin, Larry Widgren, Tim
Gostlin, George Fisher, Teresa Keeler, and Kevin
Lattimer on March 14, 1991, and to provide written
notice to those employees, and to inform them that the
Respondent’s unlawful conduct will not be used as a
basis for further personnel action concerning them.
Sterling Sugars, 261 NLRB 472 (1982).
ORDER
The National Labor Relations Board orders that the
Respondent, Kysor Cadillac, an Operating Division of
Kysor Industrial Corporation, Cadillac, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing written warnings or verbal warnings re-
duced to writing to its employees because its employ-
ees engaged in protected, concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from its files any references to the un-
lawful warnings issued to Kevin Gostlin, Larry
Widgren, Teresa Keeler, George Fisher, Tim Gostlin,
and Kevin Lattimer on March 14, 1991, and notify the
employees in writing that this has been done and that
the warnings will not be used against them in any way.
(b) Post at its Cadillac, Michigan facility copies of
the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
239KYSOR INDUSTRIAL CORP.
1 The charge was filed on April 30, 1991, and the complaint was
issued on June 6, 1991.
2 Certain errors in the transcript are noted and corrected.
After the hearing was initially closed on October 30, a discussion
ensued between counsel for the General Counsel and me as to the
necessity for counsel to provide copies of his final two exhibits,
which had been rejected when offered in evidence. After counsel for
the General Counsel decided to withdraw the exhibits, the hearing
was briefly reopened to record this change of heart. When the tran-
script of proceedings was received, however, it did not show this
final colloquy. After communication with the reporting company, the
final exchange was discovered and the omission was corrected by
issuance of a revised version of the last page to me and counsel for
the parties. That revised page has been attached to the official tran-
script.
3 That I may not specifically refer to all the testimony given at the
hearing does not imply that I have failed to consider all such testi-
mony.
4 The answer to the complaint admits that Cleveland is a super-
visor within the meaning of Sec. 2(11) of the Act, as well as an
agent of Respondent.
5 His testimony was, as we shall see, both corroborated and contra-
dicted.
WE WILL NOT issue written warnings or verbal
warnings reduced to writing because our employees
engage in protected, concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL remove from our files any references to
the March 14, 1991 warnings issued to Kevin Gostlin,
Larry Widgren, Tim Gostlin, George Fisher, Teresa
Keeler, and Kevin Lattimer and WE WILL notify each
of them that we have removed from our files any ref-
erence to these warnings and that the warnings will not
be used against them in any way.
KYSOR/CADILLAC, AN OPERATING DIVI-
SION OF KYSOR INDUSTRIAL CORPORA-
TION
Joseph P. Canfield, Esq., for the General Counsel.
Joseph F. Martin, Esq. (Warner, Norcross & Judd), of Grand
Rapids, Michigan, for the Respondent.
Kevin Gostlin, of Evart, Michigan, for the Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was tried in Cadillac, Michigan, on October 30, 1991.1 The
complaint addresses warnings given to several employees in
March 1991, asserting that these warnings violated Section
8(a)(1) because they were provoked by protected concerted
activities in which the employees had engaged. Although the
Respondent denies material allegations of the complaint, it
agrees that it is engaged in interstate commerce and that the
Charging Party is a labor organization as defined in the Act.
Briefs were filed by the General Counsel and the Respond-
ent on or about December 4, 1991. I have carefully consid-
ered the briefs, the entire record, and my recollection of the
demeanor of the witnesses. Having done so, I make the fol-
lowing
FINDINGS OF FACT2
I. THE BASIC FACTS3
Respondent engages in the manufacture and nonretail sale
of truck radiators, temperature control systems, and related
products at its Cadillac, Michigan facility. It employs there
about 115 employees, who are represented for purposes of
bargaining by the Charging Party.
On March 11, 1991, Plant Manager Larry Payne posted
the following notice:
NOTICE
March 11, 1991
To allow continuous flow from shift to shift, we re-
quire incoming/outgoing operators to overlap on their
work centers where applicable. The intent is for ex-
change of information relative to any conditions that
the incoming operator should be aware.
In that same vein beyond the 5–10 minute commu-
nication overlap of the operators, this set of condition
[sic] becomes a burden for having extra persons in the
area that are not on that shift. There are, of course, ex-
traordinary circumstances that may require extra help;
however, under normal operating conditions, I am re-
questing that employees not working on that shift re-
main in the lunchroom prior to their shift and do not
remain on the shop floor after their shift.
If extraordinary circumstances require you on the
floor other than your shift, be sure to contract the re-
spective supervisor of that shift and department.
Kevin Gostlin, an employee who serves as the Union’s
deputy chief steward, testified that after the notice was post-
ed in department 5, in which he worked on the second shift
with some 22–23 other employees, a majority of his fellow
second-shift employees said that they did not understand the
notice and asked what it meant. Other employees also testi-
fied that the purpose of the notice was questioned and dis-
cussed.
On the evening of March 12, Assistant Supervisor Virgil
Cleveland4 handed Gostlin a handwritten notice signed by
Manager Payne and dated March 12, which later that day ap-
peared on the bulletin board in typewritten form, but bearing
a date of March 13, as shown here:
NOTICE
March 13, 1991
The company is reinforcing stipulation of perform-
ance. This requires employees to remain at their work
stations working until quitting time. This also requires
employees to be at work at the start of their shift.
Verbal warnings will be issued March 13 and written
warnings will start March 14 for anyone violating.
Larry Payne: According to Kevin Gostlin, the routine in
the past for employees reporting for work was to approach
their shift supervisor and ask what their assignment would be
for the day.5 Consequently, according to Gostlin, the employ-
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Other testimony indicates that there were approximately 15 em-
ployees in the breakroom.
7 Respondent makes no contention that the notices involved in this
case could not adversely affect the recipients. See Long Island Day
Care Services, 303 NLRB 112 (1991).
ees were assertedly confused by the notices, one of which
spoke of the need to ‘‘remain in the lunchroom prior to their
shift’’ and the other of which stated present policy as
‘‘requir[ing] employees to be at work at the start of their
shift.’’ According to Gostlin, at the break on the March 12
shift, ‘‘just about everybody on the second shift’’ spoke to
him about the matter. They also asked him where their
‘‘work station’’ was, indicating a lack of familiarity with
such a concept.
Gostlin says that he asked Assistant Supervisor Cleveland
for an explanation; Cleveland could not give him one.
Gostlin testified that he told the inquiring employees that
‘‘the best thing that they could do was to report to the super-
visor’s desk’’ at 3 p.m., the beginning of the shift.
On March 13, prior to the start of the shift, Gostlin went
to the breakroom, where ‘‘just about all of the second shift’’
had gathered.6 They again discussed the postings and Gostlin
told them to go to the supervisor’s desk at 3 p.m. Also
present in the breakroom, said employee Larry Widgren, was
Assistant Supervisor Cleveland, who is, technical supervisory
status notwithstanding, an hourly paid employee who is in-
cluded in the bargaining unit. The employees were confused,
according to Gostlin, but, as reflected by a grievance filed
by him on March 20, not quite in the manner one might sup-
pose:
Co. posted notice 3–11–91, requesting incoming em-
ployees to remain in the lunchroom prior to their shift.
Co. posted notice 3–12–91 dated 3–13–91 requiring
employees to remain at their work stations working
until quitting time, also requiring employees to be at
work at the start of their shift. . . . Co. policy clearly
states employees are assigned to depts. and classifica-
tions, not work places. Employees have not been noti-
fied that they are assigned to a work place or work sta-
tion.
Just before 3 p.m. on March 13, the second-shift employ-
ees left the lunchroom in a group and walked up to the su-
pervisor’s desk. There they found Plant Manager Payne, Su-
pervisor Charles Cooper, and Cleveland. The latter, said
Gostlin and some other General Counsel witnesses, instructed
people as to their work assignments for the day, and the em-
ployees went to their assigned places.
On the night of March 14, Cleveland handed Gostlin a
printed form captioned, ‘‘Notice of Employee
Counseling/Warning.’’ The form first indicates that Gostlin
was notified and warned on ‘‘3–13–91’’ and the following
boilerplate appears:
His conduct needs to be corrected on items specified
on this form. The intent of this counseling is not to
punish. The purpose is to correct and maintain good
conduct of all employees. A copy of this form will be
issued to the employee involved. If counseling will not
correct the problem, disciplinary action will be initiated
by the Supervisor which will become part of his record
with the Company.
Following this paragraph, 11 different potential offenses
are listed. On the form given to Gostlin, two offenses are
checked; they read:
Employees shall be at their work places ready to work
at the scheduled starting times. They shall remain at
their respective work places, exclusive of the scheduled
rest and lunch periods, during their entire shift, except
for necessary personal time, and they shall not quit
working until the designated quitting times.
. . . .
Deliberately restricting output.
The form was signed by Supervisor Cooper; written across
the bottom was the following: ‘‘Kevin—This is the second
time in (2) days. Next time warrents [sic] disciplinary ac-
tion.’’ The testimony shows that this latter note was written
by Plant Manager Payne, with whom Cooper had consulted
about the issuance of this form and others, as subsequently
discussed. When Gostlin asked Cleveland what the notice
was for, Cleveland assertedly replied that he did not know.
Gostlin testified that he knew nothing about ‘‘a prior warning
two days before.’’7
Five other employees—Kevin’s brother Tim Gostlin, Larry
Widgren, Theresa Keeler, George Fisher, and Kevin
Lattimer—received forms identical to that given to Kevin
Gostlin. They were in the group of 15–20 employees who
went to the supervisor’s desk on March 13. All five wrote
‘‘Not accepted’’ or similar words on the notices and returned
them to management; they were thereafter issued another
copy of the notice, but with the word ‘‘Verbal’’ written at
the top. The record indicates that a ‘‘verbal warning’’ is con-
sidered less significant than a ‘‘written warning.’’
Kevin Gostlin testified that after March 13, he would, each
day, ask Cleveland for his work assignment, as he had done
before that date, except that previously, he had gone on the
floor earlier to look for Cleveland, if necessary, and after
March 13, he would wait until 3 p.m. In a bargaining session
on July 18, however, Respondent’s counsel told the em-
ployee negotiators that they should report ‘‘to where we last
worked the day before.’’ Gostlin has done so since then.
We shall initially take up the evidence relating to the
‘‘first offense’’ allegedly committed by Gostlin on March 12.
In late December 1987, when there was no bargaining
agreement in effect, the Company handed out to employees
a reworked copy of a proposed bargaining agreement which
it implemented as ‘‘policy.’’ One of the provisions, entitled
‘‘Stipulation Of Performance,’’ begins, ‘‘Employees shall be
at their work places ready to work at the scheduled working
times.’’
Charles Cooper was the first-shift supervisor in March
1991. Although his shift lasted from 7 a.m. to 3 p.m., he
usually remained at the plant until, at the earliest, 3:15 or
3:20 p.m.
Cooper told us that at the beginning of the second shift
on March 12, he arranged for Assistant Supervisor Cleveland
to have certain tasks performed, as he usually did; in the
course of doing so, Cooper noticed that Kevin Gostlin was
not at his machine or even in the department ‘‘that I could
241KYSOR INDUSTRIAL CORP.
8 The document in evidence, dated March 12 and signed by Coo-
per, reads:
Kevin Gostlin was given a verbal warning on 3–12–91 at 3:20
p.m. for not being at his work station at proper time. Start of
shift is 3:00 p.m.
9 To some extent, Gostlin confirmed this testimony on cross-exam-
ination when he said, on being asked about the positions of Cooper
and Cleveland, ‘‘They were among us.’’
10 The General Counsel inadvertently errs on brief in stating that
‘‘Cooper said no’’ to Gostlin’s request. See Tr. 195–196.
11 As indicated, five of the six warnings have been rescinded; no
8(a)(3) violation is alleged.
12 Although Kevin Gostlin denied receiving a verbal admonition
on March 12 for being away from his work station, and the General
Counsel argues on brief that Gostlin ‘‘credibly denies’’ receiving
one, I note that the complaint itself specifically alleges that ‘‘[o]n
or about March 12, 1991, Respondent, by its agent Charles Cooper,
issued a verbal warning to its employee Kevin Gostlin.’’
see.’’ At ‘‘approximately eighteen minutes’’ after 3 p.m., he
saw Gostlin ‘‘leisurely’’ making his way to his machine
from the place where he had loaded his grease gun. Cooper
spoke to Gostlin and ‘‘reinforced’’ the requirement that he
be at his work station at the start of the shift. Cooper consid-
ered this to be a ‘‘verbal warning,’’ although he did not say
so to Gostlin, and he documented the occurrence in hand-
writing, a copy of which is now in evidence. In his testi-
mony, Gostlin said on cross-examination that, first, he did
not ‘‘recall’’ having, and, thereafter, that he ‘‘didn’t’’ have,
any discussion with Cooper on March 12, and that Cooper
did not ‘‘confront’’ him on that day.8 He did not return to
the stand to rebut Cooper’s later specific testimony. As
noted, written across the warning given to Kevin Gostlin on
March 13 is a notation by Manager Payne that this was the
‘‘second time in two (2) days’’ that Gostlin had committed
an offense. Given this evidence, which I do not believe to
be fabricated, and my preference for Cooper’s testimony over
Gostlin’s, I conclude that Cooper did indeed admonish
Gostlin on March 12.
Although, as indicated, Gostlin and other employees testi-
fied that what happened once the group had reached the su-
pervisor’s desk on March 13 was simply that Cleveland (who
had evidently dashed there from the lunchroom) gave out as-
signments to each employee, Supervisor Cooper gave a quite
different, and more credible, account. Cooper said that as he
was standing near the foreman’s desk speaking to Cleveland
about the work schedule, he noticed, probably 5–8 minutes
after 3 p.m., a group of 15 employees standing 10 or 12 feet
away from the desk. He ‘‘didn’t really know what was going
on’’ because it was ‘‘bizarre’’ and ‘‘an unusual situation.’’
He finished speaking to Cleveland, looked at his watch and
saw that it was 10 minutes after the hour, and then ‘‘walked
into the—into the middle of the group’’9 and told them it
was time to go to work. Most of the group ‘‘faded off’’ and
went to work before he said anything. Cooper asked ‘‘what
are you all doing or something to that effect,’’ and Kevin
Gostlin replied that ‘‘they were there to get the work assign-
ment for the day.’’ Cooper replied that everyone knew where
they were supposed to be, with the exception of Larry
Widgren, who had been floating from job to job for the pre-
vious few weeks. Cooper commented to Gostlin that ‘‘he of
all people knew where he was supposed to work.’’ Cooper
testified that he based this on the fact that employees are pri-
marily assigned to work centers and that Gostlin, as a deputy
chief steward, knew that that was where he was to work if
there was work available at that location.
Cooper further testified that ‘‘verbal’’ (but recorded) warn-
ings were given to the five members of the group who
‘‘hung around and wanted specific directions.’’ The remain-
ing employees of the original group received no discipline
because ‘‘[t]hey went back to work.’’ Gostlin received a
‘‘written reprimand’’ because it was his second offense in 2
days. The five so-called verbal warnings were, as the record
shows, subsequently rescinded on April 10, after discussion
between Manager Payne and union officers.
On cross-examination, Cooper recalled (although neither
Kevin Gostlin nor any other of General Counsel’s witnesses
had so testified) that Gostlin had asked on March 13 for a
meeting between Manager Payne and the ‘‘group of people,’’
which Cooper said he would try to arrange;10 Cooper did not
‘‘think’’ that Gostlin had explained why he wanted the meet-
ing.
Discussion and Conclusions
Despite the brevity of this hearing and, all things consid-
ered, its relatively slight practical significance,11 the proceed-
ing presents difficult factual and legal issues.
The complaint alleges that when Respondent issued verbal
warnings and a written warning on March 12 and 14 to six
employees,12 it did so ‘‘because of its employees’ concerted
protected activities including concertedly complaining to Re-
spondent regarding its memorandas [sic] of March 11 and
12, 1991, in regard to job classifications and work stations.’’
It is less than clear that the six employees were engaged in
concerted activity for the purposes delineated in the statute.
In sorting out the facts here, I must say that all the wit-
nesses generally seemed to be believable. Analysis of their
transcribed testimony, however, raises some doubts. In the
end, I do not think that credibility determinations play an im-
portant role in the case, but I am obliged to treat with them.
The reliability of Kevin Gostlin’s testimony is in some ques-
tion. For example, Gostlin testified at transcript 20–21 that
on March 13, there was a discussion in the lunchroom by
employees who spoke of why the notices had been posted
and what the employees were supposed to do, and he told
‘‘the group as a whole’’ that he would go to the supervisor’s
desk with them at 3 p.m. so that they would not be dis-
ciplined. But at transcript 66, when asked about his earlier
testimony that he told the people ‘‘that you’d go with them
to make sure that no one was disciplined,’’ Gostlin replied,
‘‘That’s not what I told them, no.’’ He then went on to say
that he arrived in the lunchroom with just a few minutes to
go until the shift began and told the others, ‘‘Let’s go. You
don’t want to be late. That’s all I said.’’ (See also Tr. 77.)
Larry Widgren, on the other hand, testified that, on March
13, he engaged in ‘‘small talk’’ in the breakroom with both
Kevin and Tim Gostlin ‘‘and then the situation of this notice
come up,’’ at which time Kevin mentioned that ‘‘the best
idea would be to go to the supervisor’s desk for direction,’’
a version which contradicts Kevin’s description of his ‘‘few
minutes’’ in the lunchroom.
Theresa Keeler got to the lunchroom only ‘‘a minute be-
fore three’’ and had no conversations with anyone. Still, at
3 p.m., she went to the foreman’s desk with approximately
15 other employees, presumably in accordance with Kevin’s
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 In fact, I am inclined to believe that for the most part, as Plant
Manager Payne and Supervisor Cooper testified, employees were as-
signed to particular jobs and did not request assignments from As-
sistant Supervisor Cleveland every day. The uncertainty of the testi-
mony to the contrary is exemplified by that given by Tim Gostlin.
At Tr. 104, he said he would ‘‘normally’’ ask Cleveland for a daily
assignment. At Tr. 108, he stated, ‘‘I guess it wouldn’t be that un-
usual for me to ask my foreman where to work,’’ but then he imme-
diately answered, ‘‘Yeah’’ to the question, ‘‘You did that every-
day?’’ Two pages later, Gostlin reverted to ‘‘I myself did [ask] most
of the time.’’ In the circumstances, which show that Cleveland, al-
though technically a statutory supervisor, was an hourly employee
and a member of the bargaining unit, I do not find appropriate the
General Counsel’s request that an adverse inference be drawn
against Respondent for not calling Cleveland as a witness.
14 There may have been other agendas. Kevin Gostlin, the deputy
chief steward, later filed a grievance which, he testified, protested
the postings because they indicated that employees had ‘‘work sta-
tions’’ rather than ‘‘classifications.’’ Plant Manager Payne testified
that higher union officers told him that the other employees had
been ‘‘led down the primrose path’’ by Gostlin as a result of ‘‘an
internal Union power struggle.’’
15 Unlike, e.g., the situation in NLRB v. Washington Aluminum
Co., 370 U.S. 9, 15 (1962), where the evidence showed ‘‘a running
dispute between the machine shop employees and the company over
the heating of the shop on cold days.’’
suggestion of the previous day that the best thing for her to
do was to go to the foreman and ask him where to work.
This would not, however, be at all unusual for Keeler be-
cause, according to her testimony, she ‘‘always asked fore-
men where to go,’’ and what Kevin was suggesting was ‘‘the
same as I always have [done].’’
In relevant part, Section 7 of the Act provides that em-
ployees have the right ‘‘to engage in other concerted activi-
ties for the purpose of . . . other mutual aid or protection.’’
The employees who together approached the supervisor’s
desk on March 13 were doing so, of course, in physical con-
cert. It is not so clear that this concertedness would have had
any particular significance. Keeler, like the Gostlins, testified
that she was doing what she always did: ask the foreman
where to work; she also testified, however, that she had a
companion purpose—that she ‘‘didn’t want to get wrote up.’’
It is hard to understand why she would have feared reprisal
if she continued performing as she always had; the notices
of March 11 and 13 did not convey any such connotation.13
There are other problems in the testimony of General
Counsel’s witnesses. Larry Widgren testified, after only nam-
ing Kevin Gostlin, that Gostlin was ‘‘one of them’’ who sug-
gested going to the foreman’s desk—‘‘[I]t was a group
idea.’’ After first denying that Cleveland had suggested that
Widgren go to the supervisor’s desk (Tr. 129–130), Widgren
then acknowledged the accuracy of his pretrial affidavit state-
ment that Cleveland had indeed made the suggestion (Tr.
133).
Despite these and other testimonial defects, it is true that
15 or so employees, in a group, did approach the super-
visor’s desk shortly after 3 p.m., and I accept that they (or
some of them) did so because of confusion about the effect
of the notices posted on March 11 and 12.14 Was this ‘‘con-
certed activity for the purpose of . . . mutual aid or protec-
tion?’’
It does seem probable that the concerted activity should be
regarded as being within the contemplation of the statute.
Most, if not all, of the employees were acting collectively in
an effort to avoid potential discipline as a result of possible
misunderstanding of the notices. Presumably, they foresaw a
diminution of the chance of discipline by acting in conjunc-
tion with one another. Although I think the question is not
open and shut, I cannot reasonably distinguish the facts here
from those in Squier Distributing Co., 276 NLRB 1195
(1985), cited by the General Counsel.
However, there is no showing that Respondent’s agents
had the slightest idea that the group of employees were even
trying to clarify, much less protest, whatever ambiguity may
be said to have arisen from the two notices.15 Cooper, who
struck me as the most personally impressive witness of all,
testified that when he questioned what the group was doing,
Gostlin ‘‘spoke up and said that they were there to get the
work assignment for the day.’’ There is nothing in this state-
ment to imply that, as the complaint alleges, the employees
were ‘‘concertedly complaining to Respondent regarding its
memorandas [sic] of March 11 and 12, 1991, in regard to job
classifications and work stations.’’ Cooper, who regarded this
massing of employees as ‘‘just a bizarre thing,’’ replied that
‘‘everyone knows where they’re supposed to be’’ with the
exception of Widgren, who had been floating between jobs
for a few weeks. There is no testimony in the record that
anyone, at any time, indicated to Respondent that the group
arrival was related to confusion about the effect of the two
notices.
In Meyers Industries, 268 NLRB 493, 497 fn. 23 (1984),
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), reaffd. 281 NLRB 882 (1986), enfd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), the Board held:
Once the activity is found to be concerted, an 8(a)(1)
violation will be found if, in addition, the employer
knew of the concerted nature of the employee’s activ-
ity, the concerted activity was protected by the Act, and
the adverse employment action at issue (e.g., discharge)
was motivated by the employee’s protected concerted
activity.23
23 . . . . Under this standard, an employee ‘‘may be discharged by
the employer for a good reason, a poor reason, or no reason at all, so
long as the terms of the statute are not violated.’’ NLRB v. Condenser
Corp. of America, 128 F.2d 67, 75 (3d Cir. 1942). Thus, absent special
circumstances like NLRB v. Burnup & Sims, 379 U.S. 21 (1964), there
is no violation if an employer, even mistakenly, imposes discipline in
the good-faith belief that an employee engaged in misconduct.
I must confess my uncertainty about the Board’s use of the
phrase ‘‘absent special circumstances like NLRB v. Burnup
& Sims.’’ The cited case involved an organizational effort,
concerted and, on its face, ‘‘protected’’ activity. The Su-
preme Court held, in essence, that, in such a context, an em-
ployer must be cautious in disciplining an organizer for as-
serted misconduct, because if the organizer is found not to
have engaged in such misconduct, then the employer’s good-
faith belief that he did would be no defense. Because it
would appear that the Board’s reference in Meyers Industries
to ‘‘special circumstances like NLRB v. Burnup & Sims’’
must extend beyond organizing efforts, does it apply here as
well?
243KYSOR INDUSTRIAL CORP.
16 On brief, the General Counsel advances an arguendo theory that
even if most of the employees knew where they were supposed to
work, they were nonetheless protected because they were acting in
concert with Widgren, who Respondent concedes did not know what
work he was supposed to do. Such an argument, of course, would
require a finding that Widgren’s need to be assigned was an objec-
tive entertained by one or more of the other employees, an unproven
premise, and also that Respondent understood this purpose, an equal-
ly dubious proposition.
I think not. Whatever the final sentence of footnote 23
may mean, it seems clear that before the Burnup & Sims
gloss on the statute comes into play, the employer must be
aware that the context in which the alleged misconduct oc-
curred was activity which was both concerted and protected,
qualifications which were present in Burnup & Sims. As the
Court stated in Burnup at 23, ‘‘In sum, § 8(a)(1) is violated
if it is shown that the discharged employee was at the time
engaged in a protected activity, that the employer knew it
was such, that the basis of the discharge was an alleged act
of misconduct in the course of that activity, and that the em-
ployee was not, in fact, guilty of that misconduct’’ (emphasis
added).
There is no doubt that Respondent viewed the conduct
here as concerted, but there is also no reason to believe that
Respondent should have regarded it as protected. As support
for the first proposition, the warnings which were handed out
regarding the March 13 incident went only to those six em-
ployees who did not immediately disperse when so ordered
by Cooper, including Widgren who, as Cooper testified, did
need to be assigned. I infer from this and other aspects of
the record that Respondent understood that this ‘‘group’’ was
making a deliberate joint appearance. I cannot conclude,
however, that Respondent did understand, or should have un-
derstood, that the employees were engaging in a concerted
complaint about an ambiguity arising from the allegedly con-
tradictory notices posted on March 11 and 12.16
The General Counsel also argues on brief an alternative
theory with respect to Kevin Gostlin which is not alleged in
the complaint. The evidence shows that union officials took
up the cause of the five other employees, telling Plant Man-
ager Payne that Gostlin had misled them into believing that
their activity would not result in adverse consequences and
also mentioning to Payne an ‘‘internal power struggle.’’ Con-
trary to the General Counsel’s contention, Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693 (1983), does not apply here,
because there is no evidence that Respondent reprimanded
Gostlin ‘‘either because employees sought advice from him
or because he was held to a higher standard because he was
a union official’’ (G.C. Br. 10). Furthermore, it is not ‘‘clear
that, at the behest of the Union, Kevin’s reprimand was not
rescinded because of an internal union power struggle.’’ Al-
though Plant Manager Payne testified that the union officials
had made such a reference, he reasonably asserted that
Gostlin’s written reprimand had not been rescinded for the
reason that Gostlin had committed two violations in 2 days.
The General Counsel offers one argument which could re-
flect on Respondent’s credibility. It may be worth examining,
although the only potentially important credibility conflict
here relates to the incident regarding Gostlin’s first rep-
rimand.
The ‘‘reprimands’’ received by the other five employees
on March 14 were handed to them by Virgil Cleveland. The
employees wrote on the forms that they did not accept the
admonitions and returned the forms to Cleveland. On the fol-
lowing day, the documents were returned to the five by
Cleveland; this time they had the word ‘‘verbal’’ written at
the top. Payne testified that this addition had been made be-
cause of his understanding from Cooper that the five recipi-
ents thought that they were receiving a ‘‘full warning,’’ and
he wanted to allay their fears.
Cooper had earlier testified that, ‘‘with a verbal warning,
the employee doesn’t necessarily have to get a copy.’’ In
fact, said Cooper, the instant case is the only one in which
Cooper has issued to employees copies of verbal warnings.
The General Counsel argues that ‘‘what is more likely is that
Cooper intended to issue written reprimands to all six em-
ployees over the events of March 13th, and in fact did issue
written reprimands to all employees, but later decided to re-
duce five of the reprimands to verbal because his actions
were contrary to Respondent’s own rules, and because of the
manner in which the reprimands were received by the em-
ployees. Since Cooper was particularly angry with Kevin
over the events of March 13th, he fabricated the reprimand
of March 12th to justify not reducing the written reprimand
issued to Kevin.’’
I do not think, to begin with, that Cooper fabricated the
March 12 reprimand; anything is possible, of course, but the
Cooper I saw did not appear to be a person who would man-
ufacture evidence. I am not sure that I understand the claim
that the issuance of written reprimands to all six employees
would be ‘‘contrary to Respondent’s own rules.’’ Those rules
(R. Exh. 3, p. 4) state that either a ‘‘Verbal reprimand or
warning’’ or a ‘‘Written reprimand or warning’’ may be
meted out for ‘‘Less Serious Offenses.’’
The problem I find here, to which the General Counsel
may be referring, is the unique issuance to employees of
written reprimands intended only to be verbal in character.
As noted, Cooper testified that normally, employees do not
receive documentation of verbal warnings. Cooper attempted
to explain this departure by saying, ‘‘Now, if the plant man-
ager gets involved, that’s a little different situation.’’ That is
not an ineluctable distinction, but it cannot, on the other
hand, simply be dismissed out of hand.
The most difficult problem I have with Cooper’s testimony
is his statement, in describing the events of March 13, that
when five or six people had still not left to go to work,
‘‘Virgil was there, also, be he [sic], you know, I told him
where—where the people—I wanted them to go.’’ Read one
way, this seems to fly in the face of Cooper’s contention that
all the employees but Widgren had a specific assignment.
However, it could be that the wording is ambiguous—that
Cooper simply meant to say that he told Cleveland that he
‘‘wanted them to go.’’ At another juncture on the same point
in his testimony, Cooper is asked, with respect to the remain-
ing five employees, ‘‘And then Mr. Cleveland gave them
their work assignments and then they left, too, isn’t that
right?’’ He answered, ‘‘After I talked to Kevin, they did.’’
Is Cooper agreeing with one of the factual premises of the
question, that Cleveland gave them their work assignments,
or is he simply responding to the question ‘‘they left, too,
isn’t that right?’’ (‘‘After I talked to Kevin, they did.’’). He
goes on to say that he told Kevin ‘‘that they all knew where
they was supposed to be working’’ and that ‘‘Then they—
finally, they all went back to work.’’
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the end, I believe, chasing these will-o’-the-wisps is not
productive. The facts which can be made the subjects of con-
tention are not the facts that really count here. It is the Gen-
eral Counsel’s burden to make a prima facie case, supporting
all the elements of an 8(a)(1) violation; that, in my view and
as discussed above, he has failed to do.
Having so concluded, I need not resolve the claim ad-
vanced by Respondent that the affected employees would be
required to exhaust any ‘‘complaint’’ that they had through
the channel of the grievance procedure unilaterally adopted
by Respondent. In passing, I might say that it seems unlikely
that the Board would approve such an argument.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in
the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]