Toledo Commutator Co.

National Labor Relations Board - Board Decisions

Jan 28, 1970

180 N.L.R.B. 973 (N.L.R.B. 1970)

TOLEDO COMMUTATOR CO.
Toledo Commutator Company and International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW). Case 7-CA-7187
January 28, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On October 27, 1969, Trial Examiner Anne F.
Schlezinger issued her Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner' s Decision . The General Counsel
filed a brief in reply to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case,' and hereby adopt the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Toledo Commutator
Company, Owosso, Michigan , its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
'Respondent's request for oral argument is denied because, in our
opinion , the record , exceptions , and brief adequately set forth the issues
and positions of the parties.
'We affirmatively construe the Trial Examiner 's Remedy to mean that
the backpay for each employee is to be the amount she would normally
have earned from the time that a request for reinstatement was first made
by the employee or on her behalf . The Trial Examiner found that the
employees , after their initial request for reinstatement , may have called the
plant to report that they were sick. We do not construe such action by the
employees as a second strike , but merely an attempt to protect their jobs.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Trial Examiner : Based upon a
charge filed on February 24, 1969, by international
973
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), referred to
herein as the Charging Party, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 7 (Detroit, Michigan), issued a
complaint on March 27, 1969. The complaint alleges that
Toledo Commutator Company, referred to herein as the
Respondent, had engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the National Labor
Relations Act, as amended, by discharging and failing and
refusing to reinstate 21 employees because they engaged in
protected concerted activities. In its answer, duly filed, the
Respondent admits certain facts set forth in the
complaint, but denies that it has engaged in any unfair
labor practice.
Pursuant to due notice, a hearing was held before me at
Owosso and Flint, Michigan, on May 14, 15, 27, and 28,
1969. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant
evidence. Subsequent to the hearing, the General Counsel
and the Respondent filed briefs which have been fully
considered. The Respondent's motions to dismiss the
complaint, made at the hearing and in its brief, are hereby
denied for the reasons set forth below.
Upon the entire record in this case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under
the laws of the State of Delaware, maintains its principal
office and place of business at Owosso, Michigan. At all
times material herein, the Respondent has been engaged
at its Owosso plant, the only operation here involved, in
the manufacture, sale, and distribution of commutators,
slip rings , and related products. The Respondent, in the
course and conduct of its business operations, annually
purchases goods and materials valued at more than
$50,000 from points located outside the State of
Michigan . I find, as was stipulated at the hearing, that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Il. THE LABOR ORGANIZATION INVOLVED
I find , as was stipulated at the hearing , that the
Charging Party is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that 21 employees walked off
their jobs to protest the Respondent's refusal to grant
improved working conditions, that this conduct constituted
protected concerted activity, and that the Respondent
discharged and failed and refused to reinstate them
because of this conduct, in violation of Section 8(a)(1) of
the Act. The Respondent contends that these employees
left during working hours without permission, presented
no demands pertaining to working conditions before or
after leaving, were therefore treated as voluntary quits,.
and have been permanently replaced. The parties
stipulated at the hearing that the 21 women named in the
complaint are employees who walked off their jobs on
Wednesday, November 13, 1968, at about 2 p.m.,
although their shift did not end until 3:30. The issues are,
180 NLRB No. 146
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, whether the employees who walked out quit
their jobs or engaged in protected concerted activity, and
whether the Respondent lawfully treated them as
voluntary quits or discharged and failed and refused to
reinstate them in violation of the Act
B The Events
1 Events preceding the walkout
The Respondent's employees are unorganized. There is
a "suggestion and improvement committee" of three
employees that discusses shop problems with management
but is not allowed to handle wage and hour negotiations
The women employees learned on the morning of
November 13, 1968, that a few of the male employees had
been given wage increases They were disturbed because
they would have to wait months for an increase under the
Respondent's policy to review wages only in June of each
year' They discussed this matter among themselves during
the morning,' and word was spread about 9 a.m. that
there would be a meeting with management at 10 a.m.
During the 9 20 coffeebreak the women discussed the raise
and other issues they would bring up at this meeting.
Company officials, including President Louden, Vice
President Walton, and Plant Manager Pier, were meeting
in one of the offices that morning when, as Pier described
it: " all of a sudden a bunch of women came to the
door and wanted a meeting with management. It was
decided by Mr. Louden that I could take the,women out
and talk with them, so I immediately asked them to go
back to the maintenance department which was the largest
area to have a meeting of such length. Although I was
pretty unhappy about the event,' I decided to hear what
they had to say " Pier estimated that from 75 to 90,
practically all the women employees, were present.
The meeting was disorganized, with various employees
directing questions and comments to Pier, who is hard of
hearing. The descriptions of what occurred at this meeting
vary, apparently due in large part to the number present
and the difficulty in hearing what was said. The record
shows that Pier was asked why Louden and Walton were
not present, to which Pier replied that they sent him. One
of the first complaints brought up was about the raises
given only to a few men. Pier replied that the men in
question had been reclassified and given greater
responsibility. As to some of the questions raised Pier was
unable to give answers. At the end of the meeting, which
lasted about an hour, a few employees proposed deadlines
for these answers which ranged, according to various
witnesses, from 2 weeks down to 2 o'clock that afternoon
Some of the deadlines were admittedly proposed and
received in a joking manner.
Immediately after the meeting, Pier reported to Louden
and Walton who, Louden testified, were "concerned and
alarmed about the meeting " Although Pier stated that
they had been given a week to reply, they discussed
immediately the answers to some of the questions raised
because they were "concerned about it," and Pier was
directed to prepare a written list of the questions so they
could give them proper consideration. Pier prepared the
following list.
'There is no dispute that this was the policy although the Respondent
had announced a general wage increase in February 1968, half of it to
become effective at that time and half in June
'The regular starting hour was 7 am but some employees began at 6
a in and worked an hour overtime
ESSENCE OF MEETING WITH WOMEN HELD
NOV. 13, 68
List of complaints.
1 Not satisfied with down time allowance when job
setters are working on machines
2 They felt we do not have sufficient material
handlers, pans too heavy to move
3. Expressed the opinion that the incentive system
was no good Wanted us to discard it and put all on
hourly rate
4 Asked why they couldn't at least get a cost of
living raise because of higher prices and taxes.
5. Not satisfied with the set-up men.
6 Foremen move personnel too often
7 Too many bosses assigning work
8 Too many different time studies for similar jobs
9. Not sufficient time spent by time study when job
is rated.
One girl said they would give me a week to get
situation corrected
The list makes no reference to the question about the raise
limited to a few of the men although the women
apparently viewed this as one of the principal issues. Pier
testified that he did not include it because he had
explained this matter at the 10 a in. meeting.
Some of the women were not satisfied with Pier's
explanation as it appeared to them there had been no
change in the work the mere in question were performing.
They continued to discuss the matter after the meeting
with Pier. In the course of these discussions, they
considered proposals that they should walk out unless they
received answers to their complaints by 2 o'clock that
afternoon, and that they should claim to be sick as they
believed, based on the plant practice of permitting up to 3
days of sick leave before requiring a doctor's certificate,
that this would protect their jobs
Margaret Ramsdell credibly testified that when some of
the women took the position that "if the company follows
through as they have in the past about settling anything it
will be probably June any way so why don't we give them
a time limit like two o'clock today," she, as secretary
of the suggestion and improvement committee, acted as
spokesman and offered to ask Richard Mead, chairman of
that committee, to notify management of this position.
She and Carol Rood, as was their custom, went to Rood's
home during the 1130-12 o'clock lunch period, and
Ramsdell while there telephoned Mead at the plant and
asked him to notify management that "a group of girls
decided they would like to have an answer, either yes or
no, either we could possibly have a raise before the June
time that we usually got one . . or we would walk out."
Ramsdell's conversation with Mead was reported to a
number of the women
Mead testified that he received the call from Ramsdell
between 11.30 and 12 o'clock, that he went to see Pier,
who lunched in his office, and that. "I told him the
women wanted to see Mr Louden by two o'clock, or they
were going to have a bunch of sick women on their hands,
they were all going to go home Mr. Pier told me he has
had enough of this stuff and he wasn't going to take any
more ultimatums and that he would get something out on
it, and let him take care of it, and I left " Mead also
testified that he was followed into Pier's office by Paul
Lehman, who said he had heard the same thing Lehman,
the third member of the suggestion and improvement
TOLEDO COMMUTATOR CO.
committee, testified that he had heard talk about a
walkout and, as a member of the committee, felt he
should report it to management to see if the walkout
could be prevented; that he went to Pier's office and, as he
entered, heard Mead tell Pier "the girls want to talk to
Mr. Louden before two o'clock or there is going to be a
walk out and I said yes I have heard the same thing .. .
he said to us, that he was all through putting up with this
sort of thing, and he would take care of it from there."
Pier agreed that Mead and Lehman came to his office
about 12:20, but testified that the conversations were as
follows: "he [Mead] said oh those silly women, and I said
why. He said this is something , really something.
Something has to be done about these work stoppages,
and I said I am going to take care of it. I told him I
would take care of it . . . while Mead was in there, Ms.
Lehman came in and he said a couple of the girls were
going home sick . . . I just thanked him and he left." Pier
admitted that there was no precedent for Lehman
reporting such a matter to him. I do not credit Pier's
version of what was said. I found Pier's demeanor as a
witness unimpressive , his testimony in general less candid
and forthright than that of Mead and Lehman, and his
testimony as to this particular matter implausible.
Accordingly, I find that Mead and Lehman notified Pier
shortly after 12 noon that the women were planning to
walk out and report they were sick unless Louden met
with them before 2 o'clock.
As the parties stipulated at the hearing, at about 1:50
Pier posted the following notice in the coffeeroom and at
the timeclock:
11-13-68
NOTICE
ON SEVERAL OCCASIONS EMPLOYEES HAVE STOPPED
WORK TO HAVE MEETINGS WITH MANAGEMENT TO VOICE
THEIR COMPLAINTS.
THESE WORK STOPPAGES CANNOT AND WILL NOT BE
TOLERATED BY MANAGEMENT!
WE DO HAVE DEPARTMENT FOREMEN WHO WILL.
LISTEN TO COMPLAINTS AND REFER THEM TO
MANAGEMENT . YOU ALSO HAVE A COMMITTEE
REPRESENTING EMPLOYEES TO REFER SUGGESTIONS TO
MANAGEMENT.
THE ABOVE CHANNEL [SIC ] OF COMMUNICATIONS ARE
NOT BEING FOLLOWED AND IN THE FUTURE UNLESS
THESE COMMUNICATIONS ARE FOLLOWED , MANAGEMENT
WILL REPREMAND [SIC] EMPLOYEES FOR UNAUTHORIZED
WORK STOPPAGES.
ANY WALK OUT OF EMPLOYEES FROM THEIR JOBS
WILL BE CONSIDERED THAT THE EMPLOYEE HAS QUIT.
The Respondent ' s officials testified that during their
discussion about the 10 a.m. meeting , they also discussed
the disruptive effect of such meetings and the fact that
there were other channels for employee complaints. They
maintained that while a company rule prohibiting such
meetings had "always " been in effect , they decided to
prepare a notice to put a stop to such disruptions and to
warn employees , according to Louden , that "such a work
stoppage in the future would be met by a reprimand."
Walton drafted a notice and showed it to Louden when
Louden returned from luncheon at 1:30 . Louden approved
the draft and directed that it "be posted as quickly as it
could be ." Pier , who posted the two copies at 1:50,
testified that " I told Mr . Mead we had posted the notice
and asked him to encourage people to read it," that he
did so because Mead "was on the suggestions committee,"
975
and that: "I went around and told every foreman the
notice was being posted, and encouraged all of the
foremen to tell all of the people this notice was being
posted .... When I was going around telling the foremen
I heard [Foreman] Bill Marks say that some of the people
were getting sick, and said this was the second indication.
I thought the first one was nothing but the second
indication, I didn't know what to believe."
The Respondent's officials testified that the notice was
intended to prevent meetings such as the one held at 10
a.m., and had no reference to a walkout at 2 o'clock as to
which, the Respondent maintains, it had no knowledge by
1:50. 1 have found above, however, that the Respondent
was told by Mead and Lehman shortly after 12 o'clock of
the possibility of a walkout at 2 o'clock. In addition, the
notice warns that unauthorized work stoppages would be
met by a "repremand" but, in the event of a walkout, the
employees would be considered to have quit. Further, with
no indication that anyone was seeking another meeting
such as the one held at 10 a.m. the notice was handled
with considerable urgency. Thus, Louden approved the
draft immediately upon his return from luncheon, he
directed that it "be posted as quickly as it could be," and
Pier, who posted the notice at 1:50, in the few moments
remaining before 2 o'clock called the notice to the
attention of Mead and of all the foremen and asked them
to call it to the attention of all the employees. Finally, at
proceedings before the Michigan Employment Security
Commission in which some of the women who walked out
were seeking unemployment compensation, the
Respondent maintained that the claimants were
terminated in accord with the notice posted at 1:50.3 It is
apparent, from the foregoing and the entire record, and I
find, that the notice was posted by the Respondent as a
warning against the walkout about which Mead and
Lehman had notified Pier.
After Mead talked to Pier about the possibility of a
walkout, he reported to Ramsdell that he had done so.
Some of the women who had been discussing a possible
walkout decided after hearing about Mead's report that a
walkout was their only recourse, and some who read or
heard about the notice that had been posted decided to go
out nevertheless.
2. The walkout on Wednesday, November 13
Women began walking out about 2 o'clock. Most of
them told their foremen they were leaving because they
were sick. Some testified that their foremen gave them
permission to leave while others admitted they were not
given permission . A number of timecards were collected
by foremen as the women punched out. Those who walked
out expected from the earlier discussions that most of the
women employees would participate but only 21 did so.
They remained outside the plant for a short time, then
dispersed, some to their homes, a few to a beauty parlor,
and several to a nearby bar and grill . Some returned to
the plant later to meet carpools or to request employees
reporting for the night shift, which began at 3:45, to stay
'In these proceedings a referee originally disqualified the claimants for a
6-week period because he held that they left their jobs voluntarily. On
appeal by the claimants, this disqualification was removed on the basis of
findings that the claimants had an intention of returning to work and had
engaged in a concerted action based on what they believed to be a proper
grievance . These rulings have been appealed by the Respondent As to the
relevance of these proceedings , see Krajewski Mfg. Co v. N L R B , 413
F.2d 673 (C.A. 1); Wind River Logging Company, 175 NLRB No 133.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out Clara Jones went to see Cross, the representative of
the Charging Party, who is her brother-in-law. He advised
her to report back to work the next morning
Many of those who walked out testified that they left,
as they told their foremen, because of illness or to see a
doctor or dentist Some testified they would have left in
any event as they were not too sick to work, and some
that they went out because others did One testified that
she left "in protest of the company actions," another that
she "didn't feel that [the posted notice] was a proper
answer ," and one was told by General Foreman Bernest,
when he saw her wearing her coat and talking to another
employee, to "get the hell out of there."' Although some
testified they felt the Respondent knew the cause of the
walkout in light of the meeting with Pier that morning, it
is clear that none of them told the foremen they were
leaving because of the complaints raised at that meeting
It is likewise clear that those who walked out did not
intend to quit and believed that claiming to be sick would
protect their jobs for up to 3 days In addition to
testimony about the 3-day sick leave practice, there is
testimony by a number of employees, which the
Respondent did not dispute, that foremen had generally
granted requests to leave work because of illness or to see
a doctor or dentist, testimony that several employees had
quit and been rehired, as to which the Respondent
maintained only that this was a matter within its
discretion, and testimony by a number of employees that
they or other named employees had left work early
without permission and returned a day or two later with
no questions raised by their foremen, which I found more
credible than the denials by some of the Respondent's
witnesses 5
Walton testified regarding the walkout that "I became
aware of the problem just at two o'clock, or shortly
thereafter when a number of employees were leaving the
plant," and that he called Teichman, personnel director,
as "I was anxious to know how many there were, and had
him prepare a list of those employees who left the plant
without permission " He did not explain how he knew at
that point they were leaving without permission Walton
reported to Louden that employees were leaving and,when
he received Teichman's list, showed it to Louden, who
testified that he remained with Walton "at this stage .
because needless to say we were quite alarmed and
concerned " Immediately after reviewing Teichman's list,
Walton and Louden called a meeting with Pier and all the
foremen in order "to discuss how many left the plant and
why they left the plant " All the foremen reported that the
women who left "all went home sick," that this was the
only reason they gave, that none were given permission to
leave, and that the foreman called the posted notice to
their attention.
Louden left this meeting to telephone the Respondent's
attorneys in Detroit As he testified, he told them that a
number of employees had left the plant in the middle of
the shift without permission, that "we normally consider
them as voluntary quits when they do such a thing, and
had we acted properly and what should we do, and I was
advised that we should be very careful, that this might
have some evidence - first of all, the question did we
'Bernest did not testify
'The Respondent introduced in evidence a document headed "List of
Employees who are treated as voluntary quits for leaving work prior to the
end of the shift ," which contains seven names with dates ranging from
September 1965 to June 1968 The payroll slips attached to the list
indicate , however , that some of the seven did not merely leave work early
but expressly quit their jobs
have any evidence of this being a labor dispute, and I had
to admit that we did not, and I was cautioned that we
should watch for signs of a labor dispute " Louden
returned to the foremen's meeting and, as he testified
further "They were nervous and we wanted to be sure
that we were right and I may have said that I had advice
that we should be very careful as to our consideration of
the status of these people . . . The status was that they
would be considered voluntary quits pending any further
information that we might receive . if any demand or
any position or advice was received from the people that
had left that they were leaving because of wages or hours
or working conditions .11
As noted above, a number of timecards were pulled as
the women punched out. Walton testified, however, that it
was after the meeting with the foremen that he and
Louden decided to have the timecards removed and slips
made out showing these employees to be voluntary quits
Teichman that afternoon made out such slips for all 21.
There was no discussion about the possibility of treating
some of the 21 differently Louden gave instructions to
start recruiting new employees that afternoon Teichman
testified that there was an immediate attempt to get
replacements, but then admitted that hiring takes time as
applicants must be interviewed and given a medical
examination, and that he left Wednesday evening to go
deer hunting for a week 6 Pier, who commented that the
Respondent could not "run the plant with that many
employees gone," testified that when Louden told him on
Wednesday to begin recruiting replacements, he did so
immediately and "We hired quite a few of them
That afternoon," but then he also admitted that people
could not be put on the payroll "that fast" as "they had
to get a physical before they could go to work."
3. Events following the walkout
a. Thursday and Friday, November 14 and 15
A number of those who walked out Wednesday
afternoon attempted to return to work Thursday morning.
Jones, Hughes, and Saxton vent in at 6 a m. but found
their timecards missing from the rack. They proceeded to
their work stations but were told by Foreman Applebee
that as they had no cards they could not work.' While
they were talking to Applebee, Pier came in and,
according to the testimony of Jones and Hughes,' which I
credit, told them they had no jobs I do not credit Pier's
testimony that he merely told them to go to the office. He
admitted that he did not tell them which office or whom
to see, the offices did not open for 2 hours, and the
assertion that they had no jobs was in accord with the
Respondent's course of conduct regarding all those who
walked out. As Mead testified credibly, Foreman
Kiplinger told him on Thursday morning that Louden
"was taking a stand on this and these women will
absolutely not get back in "'
°Teichman testified that when he returned , he was instructed by Louden
that there had been "no communication of the employees being on strike,
so I was to consider them quit " He also testified that some new employees
had been hired in his absence
'Applebee did not testify
'Saxton did not testify
'Kiplinger did not testify Louden denied that he held any separate
meeting about the 21 women with Kiplinger, but did not deny that
Kiplinger was at the meeting attended by all the foremen on Wednesday
afternoon
TOLEDO COMMUTATOR CO. 977
When the three women left the plant, they met others
of the 21 coming to work at 7 a.m., and reported that
Pier had told them they no longer had jobs. As a result,
the others did not go in, but went home and telephoned
their foremen that they were sick. Later that morning a
number of the women who had walked out met at the
home of Helen VanOver and agreed they would call in
sick again on Friday and return to work on Monday.
They were still of the opinion they could thereby protect
their jobs for 3 days. Accordingly the women called the
plant again on Friday and reported sick. Louden and
Walton testified that the only word they received about
this matter on Thursday and Friday was that the women
called in sick, which, Walton added, "is the normal
procedure."
b. Monday, November 18
On Monday a group of 18 of the 2110 went to the plant
at about 7 a.m. seeking to return to work. They were met
by both Louden and Walton." Louden told them that he
was "shocked" by their leaving, that the Respondent
could not have "this sort of thing," and that he considered
they had quit as they left without permission and they
would not be coming back to work. The women said they
regretted what they did and pointed out that they had
never done anything like this before. As Louden testified:
"some of them reminded me that they had been with the
company many years, and I was aware of this. Some of
the people involved I think have up to eighteen years
service." Iola Barnes, who had been employed since 1950,
asked if they could not be given reprimands and put back
to work, but Louden said this could not be done. Some of
the women mentioned that they had certificates from
doctors who treated them during their absence from the
plant, but were merely told they could leave them in the
personnel office. The women obtained the personal
belongings they had left at the plant, which were brought
to them by Bernest . They were given permission to fill out
applications for jobs. Some did so at that time and others
at a later date, and some went to the plant at various
times to seek jobs. The Respondent has hired a number of
employees since the walkout but has offered jobs to none
of the 21.
Walton testified with regard to the discussion on
Monday morning that, "As far as I could make out, they
give us the assurance that leaving had nothing to do with
the morning meeting." Louden testified in this regard that
the women "made reference to the fact we did have a
meeting with John Pier on Wednesday morning," that
they said "this was no reason for their action on the
afternoon of that same day ... assuring me there was no
connection between either dissatisfaction with that
morning meeting or with working conditions in the plant,
and, of course, this was my most serious observation at
this time, on the advice I had obtained to watch for any
evidence that this was a labor dispute." Louden further
testified that as no demands for changes in working
"Two who heard that the Respondent was refusing to take them back
had obtained other jobs starting on Monday Two others who walked out
on November 13 testified they had been given permission to go deer
hunting beginning November 14, while the foremen claimed the permission
was tentative and had not been confirmed . In any event, one of the two
was still away on Monday.
"The company offices opened at 8 a.m. Louden and Walton were not
normally at the plant at 7 a.m. but were that Monday because , Louden
testified, they were "watching for the possibility of labor dispute being
brought up."
conditions were made, the Respondent's decision was to
continue to consider the women as voluntary quits, but
also "to continue to watch for any demand that might
cause this situation to be considered a labor dispute."
C. Concluding Findings
1. The walkout
As set forth above, on the morning of November 13
virtually all the women employees complained to
management about the pay raise given to only a few of
the men while they had to wait until June, and about
certain other working conditions. The women, after
meeting with General Manager Pier and presenting their
complaints, were not satisfied with Pier's explanation as
to this raise issue and afraid that answers to the other
complaints might be long delayed. As a consequence of
their discontent, they began to talk of a walkout after the
meeting with Pier, and this talk spread quickly through
the plant. Employees Mead and Lehman notified Pier
shortly after 12 noon that if no response was received
from President Louden by 2 p.m., the women would
report sick and walk out. Pier told Mead and Lehman he
would take care of the situation
As soon as Louden returned from luncheon at 1:30 and
approved it, a notice was posted by Pier - 10 minutes
before the walkout was scheduled - warning among other
things that "any walk out of employees from their jobs
will be considered that the employee has quit." Pier called
the attention of Mead and all the foremen to this notice
and urged them to call it to the attention of all the
employees. Nevertheless 21 women walked out at 2
o'clock.
I find on the entire record that the 21 women walked
out on the afternoon of November 13 in order to bring
pressure on the Respondent to act on the complaints
raised at the meeting with Pier that morning, that this was
action for their mutual aid and protection, and that the
walkout, therefore, constituted concerted activity protected
by the provisions of Section 7 of the Act.' 2 The walkout
did not lose its character as protected concerted activity
because the employees who walked out, who had no
bargaining representative, did not wait a reasonable time
to see if the Respondent would satisfy the demands for
changes in working conditions made earlier that day," or
because they failed to repeat their demands when they
walked out but merely asserted they were sick in the belief
this would protect their jobs.14
I also find that the Respondent was not warranted in
assuming , as it contends it did, that because these
employees walked out before the end of their shift without
permission, they were quitting their jobs.'s The employees
had protested various working conditions to management
that morning, this was followed by discussions throughout
the plant of a walkout, and Pier was expressly notified by
Mead and Lehman that employees would walk out unless
"N L.R.B v Washington Aluminum Co. 370 U.S 9; B & P Motor
Express, Inc. v. N L R.B , 413 F 2d 1021 (C.A. 7); Hugh H. Wilson Corp
v N L.R B., 414 F.2d 1345 (C A 3); Top of Waikiki, Inc, 176 NLRB
No. 6.
"First National Bank of Omaha v N L R. B , 413 F .2d 921 (C A. 8).
N L.R B v. Washington Aluminum Co., supra , states that "it has long
been settled that the reasonableness of workers ' decisions to engage in
concerted activity is irrelevant to the determination of whether a labor
dispute exists or not "
'See Bav Standard Products Mfg Co. 178 NLRB No. 7; Adam Loos
Boiler Works Co , 176 NLRB No. 131, TXD, fn 4
"See N.L R B. v Harry F Berggren & Sons, Inc.406 F . 2d 239 (C.A.8),
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louden met with them before 2 p.m. Following that
notification, the Respondent hastily prepared a notice
warning employees against a walkout and, moments
before the scheduled walkout, Pier posted the notice,
called it to the attention of Mead and all the foremen, and
instructed them to call it to the attention of all the
employees. Vice President Walton was aware of the
walkout as soon as it began, promptly assumed the
employees were leaving without permission, and took
immediate steps to obtain a list of the participants in the
walkout. Finally, the women who walked out left personal
belongings in the plant. I find, in all the circumstances,
that the Respondent was aware that these employees were
not quitting their jobs but engaging in a group protest. I
find further that the purpose of the walkout, although not
articulated by the employees who engaged in the walkout,
was readily apparent to the Respondent" in view of the
demands for changes in working conditions made by the
employees only a few hours before the walkout occurred"
and the lack of answers to their complaints." The
Respondent's awareness that this was the purpose of those
who walked out is shown also by the Respondent's
uniform treatment of all who walked out.
2. The termination of employment
The Respondent had lists prepared of the employees as
they were walking out, removed their timecards, changed
their designations to voluntary quits, notified all the
foremen they were to be considered voluntary quits, and
directed the hiring of replacements to begin immediately.
I find that the Respondent was thereby terminating these
employees in retaliation for the walkout.
That these actions constituted discharge is shown by the
response to those seeking to return to work Thursday
morning - by Applebee that they could not work
because they had no cards and by Pier that they had no
jobs - although they had been away from work only one
and a half hours, left claiming to be sick, and had not
been replaced. Again on Monday, when virtually the
entire group of women came to the plant seeking to return
to work, Louden and Walton, both of whom made a
enfg . 165 NLRB No 52, art. denied 396 U.S 823 In the Washington
Aluminum case , supra, the Supreme Court nullified a plant rule that
purported to prohibit "plainly protected kinds of concerted work stoppages
until and unless the permission of the company's foreman was obtained."
"See Westmont Tractor Company, 173 NLRB No. 183 , in which the
Board found that the employer "was aware , or, at the very least, had
reason to suspect that its employees had agreed upon group action" to
seek correction of grievances , but "without deciding that Respondent's
prior knowledge of its employees' concerted activities is an essential
element in support of a finding of an illegal discharge because of such
activity ." N L.R.B. v Ford Radio & Mica Corp.. 258 F.2d 457 (C.A. 2),
on which the Respondent relies, is clearly distinguishable . Further, see B &
P Motor Express v. N L R .B., supra , in which the Court held.
The evidence also supports the conclusion that the employer had
reasonable notice of the purpose of the walkout , and that the discharge
cannot be justified as good faith company action in the face of an
unexplained refusal to work. Cf. N.L.R.B v. Ford Radio & Mica Corp.,
258 F.2d 457 (2nd Cit. 1958).
"In ElectromecDesign & Development Co. Inc, 168 NLRB No. 107,
the Board , in finding a walkout protected concerted activity, relied on the
manifest dissatisfaction of employees with the employer 's failure to accede
to their demands made 3 weeks earlier and not renewed prior to the
walkout.
"International Van Lines, 177 NLRB No. 33 The court stated in Hugh
H Wilson v. N.L R. B., supra, that "the coalescence of a grievance and
concert of action may . . be triggered by an action of or a failure to act
by management."
special point of being there when the group arrived,
refused to permit any of them to go back to work, not on
the ground that any of them had been replaced but that
they had all quit their jobs. Although the Respondent
admittedly could not "run the plant with that many
employees gone," Louden and Walton were adamant in
this refusal even after various individuals apologized for
their action, offered to accept a reprimand, pointed out
they had never done anything like this before, presented
doctors' certificates, mentioned their many years of
satisfactory service and other extenuating circumstances,
and made reference to the Wednesday meeting with Pier
although disclaiming, according to Louden and Walton,
that it had any connection with the walkout. Furthermore,
although many of those who walked out made written and
personal applications for rehire, the Respondent offered
jobs to none of them, but proceeded instead to recruit new
employees.' 9
There is no adequate explanation in the record for the
Respondent's insistence that the 21 had quit irrevocably in
view of their prompt efforts to return to work, for its
failure to exercise as to any of the 21 its discretionary
policy of rehiring employees who quit, for its denial of
sick leave for any of the 21, or for its treatment of those
who left work early on this occasion so much more
severely than it did on other occasions. 30 It is evident from
all the circumstances that the difference in this instance
was that the employees had acted in concert, and the
Respondent's officials, "quite alarmed and concerned"
about what was going on in the plant that day, decided it
could not have "this sort of thing." Accordingly, I find,
on the basis of the foregoing considerations and the entire
record, that the Respondent on November 13, 1968,
discharged all 21 employees who walked out that day and
thereafter failed and refused to reinstate them because of
their participation in protected concerted activity, and that
the Respondent thereby violated Section 8(a)(I) of the
Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondeht has engaged in
unfair labor practices in violation of Section 8(a)(l) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. I have found that the Respondent
discriminated against 21 employees, named in the attached
list marked "Appendix B," by discharging and thereafter
failing and refusing to reinstate them, in violation of
Section 8(a)(1) of the Act. I shall therefore recommend
"See The Laidlaw Corp. v. N.L.R.B., 414 F. 2d 99 (C A 7), in which the
Court found unlawful discrimination against strikers on the basis inter alia
of the fact that "The company failed to offer any reason for preferring new
workers as opposed to strikers."
"See Royal Manufacturing Company, 177 NLRB No. 80.
"Top of Waikiki, supra; B & P Motor Express Incorporated, 171
NLRB No. 174 , enrd B & P Motor Express v. N.L.R. B., supra.
TOLEDO COMMUTATOR CO.
that the Respondent offer them immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay they may have suffered as a result of the
discrimination against them by payment to each of them
of a sum of money equal to the amount which each would
normally have earned as wages from November 13, 1968,
to the date of the offer of reinstatement, less her net
earnings during such period, to which is to be added
interest at the rate of 6 percent per annum in accordance
with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716. It will be further recommended that
the Respondent cease and desist from "in any other
manner" infringing upon the rights guaranteed to its
employees by Section 7 of the Act."
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 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 discharged and thereafter failed and
refused to reinstate 21 employees, named in the attached
list marked "Appendix B," in violation of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, and
pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent, Toledo Commutator
Company, Owosso, Michigan, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging and failing and refusing to reinstate
employees because they have engaged in concerted
activities for the purpose of mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer the 21 employees named in the attached list
marked "Appendix B" immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any losses of pay they may have suffered as a result of the
discrimination against them in the manner set forth in the
section above entitled "The Remedy."
(b) Notify any of the employees named in the attached
list marked "Appendix B" if at present serving in the
Armed Forces of the United States of their rights to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
"Wind River Logging Company, 175 NLRB No. 133.
979
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and necessary to analyze the amounts of
backpay due under the terms of this Recommended
Order.
(d) Post at its Owosso, Michigan, plant copies of the
attached notice marked "Appendix A."13 Copies of said
notice, on forms provided by the Regional Director for
Region 7, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent
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. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
"In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 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 . In the event
that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
the Seventh Region , in writing , within 10 days from the date of this Order,
what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations Board
an agency of the United States Government
WE WILL NOT discharge or fail or refuse to reinstate
employees because they have engaged in concerted
activities for the purpose of mutual aid or protection.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
guaranteed statutory rights.
WE WILL offer to the employees listed below
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make them whole for any losses of pay
they may have suffered as a result of the discrimination
against them.
Iola Barnes Donna Mead
Doris Bradish Charlotte Merko
Rose Current Bonny Powell
Norma Downer Margaret Ramsdell
Marian Danek Carol Rood
Linda Hildebrandt Sandra Sabo
Angeline Hughes Edna Saxton
Joanne Jensen Marlene Swarthout
Clara Jones Winnie Thayer
Dorothy Krajcovic Helen VanOver
Dorothy Weir
WE WILL notify the above-named employees if at
present serving in the Armed Forces of the United
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States of their rights to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
TOLEDO COMMUTATOR
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
500 Book Building , 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.
APPENDIX B
Iola Barnes
Doris Bradish
Rose Current
Norma Downer
Marian Danek
Linda Hildebrandt
Angeline Hughes
Joanne Jensen
Clara Jones
Dorothy Krajcovic
Donna Mead
Charlotte Merko
Bonny Powell
Margaret Ramsdell
Carol Rood
Sandra Sabo
Edna Saxton
Marlene Swarthout
Winnie Thayer
Helen VanOver
Dorthy Weir