Custom Wood Interiors, Inc.

CUSTOM WOOD INTERIORS, INC. 187 Custom Wood Interiors, Inc. and Thomas W. Tuvell. Case 12-CA-8459 March 7, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On December 14, 1979, Administrative Law Judge George Norman issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions, a motion for leave to introduce new evidence, and a supporting brief. The General Counsel filed a brief in opposition to Respondent's motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law I Respondent's hrief and motion for lease to intr .dluce nlew eidence seek permission to shos that during November 1978. when Tuvlell as laid off. Fred Breakey, Respondent's production manager. wsas engaged v, ith other emplosecs in "an operation hich as in competition ith [Respondent '" Assuming that Respondent had satisfactorily sho\v n that this eidence was either nessI discovered or unavailable at the time of the hearing, vse .ould and do herehs dens Respondent's motion since the proffered eidence. even f accepted. would not affect the result reached herein See Reppcl Stel and SupplY Co. Inc. 239 NLRB No 53 (1978) Breakes's competition ith Respondent could only circumstan- tially bear upon and undermine his credibilits. a factor which is not cru- cial to our acceptance of the Administrative Laws Judge's determination that Respondent siolated the Act 2 Respondent has excepted to certain credibility findings made hb the Administratire I.as Judge It is the Board's established policyv not to overrule an administrative las judge's resolutions vith respect to credi- bility unless the clear preponderance of all of the relevant eidence con- vinces us that the resolutions are incorrect Standard Dry ll Products, Inc.. 91 NLRB 544 (1950). enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings It is apparent that the Administrative as Judge intended to refer to Tuvell and nadvertently referred to Breake) in the third sentence of par 3, sec IV The corrected sentence is as fiillows "On the other hand. Breake5 testified that his response as negative hen T ell asked him if he (Tu'ell) sas being fired for uniiin actisity but then proceeded to tell Tuell, in effect., that if he hod been laid off fr uion actilit Breakey wuould not hase told him so We agree with the Administralive Law Judge that Respondent unllas- fully discharged Tuvell because he engaged in protected concerted ac- tisities on behalf of the Union At the outset, vse note that the Adminis- tratile Lass Judge redited Tusell's testimony that Breaker told him he ssas being fired fir having fought Respondent's president, Johnson. on the conitract Additionally, lusell ,was the only emploee identified and personallx cholsenl bh Johnson to be laid off. contrars tI past practice The record sho w that normally Johnlson would deitilfN a prod uctl i classificallon hich, i ies of production needs. ,Aas osertaffed Brea key wuld then cull from that griiup the employee r eniployee, to he laid off There is also e idencc that Jhnsoin had I leraled T sL ell',s snlok- ing habits., alleged o he a reaslon fir his discharge. \S ithoUt prcx l s complaint fi r qUile s',me Iime Tu eli testified Ihait his habits had heen unchanged fr I cirs iea;rs hlllch included the time he had ,tirked for Resplondent aind for anlther cornpanii Ilill.naged h Jhllson Addl tionally. Johnson testified that oimclime during the sunmmer, hc h ad begL t keep fig ures, n Ih c)ist per fltlure ssaltchilng er ti'Xlllr, and 248 NLRB No. 23 Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Custom Wood Interiors, Inc., Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Make Thomas W. Tuvell whole for any losses he may have suffered by reason of his un- lawful discharge, in the manner set forth in the sec- tion herein entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. "lying do n hos long it takes for person ti nmake a table and hos, long it as taking them to do a perimeter "3hil Respondent claimed that Tux ell's poor production as in large part the reari, tfor his la! off. Respondent failed to submit an) dociumentatlon of this lack of procduct% - ilt. xern through it admittedly as keeping such records Respondent's failure 1to produce this eidence s arrants the iference that such proof would have not have aided Respondent's case See lxironin Inc (ih Divirson), 199 NI.RB 131. 134 (1972) Johnson's deviation from past layoff procedure. his relatiel\ sudden interest in Tuvell's smoking habits, and Respondent's failure tIu document its claim that Tuvell's production ,uas poor, considered in conjvction 'sith sWhat e consider to be the key factor-Tuell's credited testimony that Breakey said the firing wsas premised on Tuxell's protected aclil- ties-- all lead inexorably to the conclusionl that Respondent iolated Sec 8(a)(l) and (3) of the Act : Respondent excepted to the proposed remedy hich requires Re- spondent to offer Tusell reinstatement The record reveals that Respon- dent offered Tusell reinsatemenl in a letter dated February 20. 1979) and that at the hearing, the General CouI Il conceded that reinstatement had in fact been offered. and as n longer all issue There is nothing in the record to indicate that the offer ,sas other than full and unconditional and therefore alid We therefore find that Respondenl's exception is meritolrius, and hase modified the recommended Order to reflect our determination the Respondent is relieved of ils obligation to offer Tuxell reinstatement Of course, Respondent must sill reimburse Tuxell for an) monetary losses suffered as a result of his discharge APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice. We intend to abide by the following: The National Labor Relations Act gives all employees the right: CUSTOM WOOD INTERIORS INC. 187 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT terminate employees for en- gaging in concerted activities with other em- ployees for their mutual aid and protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL make Thomas W. Tuvell whole any losses he may have suffered as a result of his unlawful discharge, plus interest. CUSTOM WOOD INTERIORS, INC. DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This case was heard on May 7 and 8, 1979, in Tampa, Florida. It is based on an unfair labor practice charge filed on January 8, 1979, by Thomas W. Tuvell, an individual, against Custom Wood Interiors, Inc., herein called Re- spondent. A complaint based on that charge was issued on February 5, 1979, by the Regional Director for Region 12 of the National Labor Relations Board. The complaint alleges that Respondent terminated the em- ployment of employee Thomas W. Tuvell and thereafter refused and continues to fail and refuse to reinstate said employee to his former or substantially equivalent posi- tion of employment because Tuvell was a member of and/or assisted United Brotherhood of Carpenters and Joiners of America, Gulf Coast District Council Carpen- ters, Local No. 696, herein called the Union, and because said employee engaged in concerted activities for the purpose of mutual aid or protection. Respondent denies that Tuvell was terminated or that he was terminated for the reasons alleged in the com- plaint. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to argue orally. The General Coun- sel and Respondent filed briefs. Upon the entire record, including my consideration of the briefs and my careful observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Florida corporation with an office and place of business located in Tampa, Florida, where it is engaged in the business of manufacturing and selling store fixtures. During the past 12 months, which is repre- sentative of all times material herein, in the course and conduct of its business operations, Respondent manufac- tured, sold, and directly shipped products valued in excess of $50,000 from its Tampa, Florida, place of busi- ness to its customers located outside the State of Florida. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION United Brotherhood of Carpenters and Joiners of America, Gulf Coast District Council Carpenters, Local No. 696, is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES Respondent and the Union were parties to a collec- tive-bargaining contract covering Respondent's employ- ees. That agreement expired on October 31, 1978.' Ne- gotiations for a new contract were conducted in Septem- ber and October and a new contract was agreed upon in the last week of October. Thomas W. Tuvell, the Charging Party, had been in Respondent's employ since the early part of 1974. His job was carpenter-assembler. He testified that in Septem- ber, at the commencement of negotiations, Respondent's employees began discussing what they wanted their union to seek at the bargaining table. He said these dis- cussions took place in the plant, many at his workbench which was centrally located in the plant. He said that be- cause he was one of the senior employees and older than the others they sought out his advice with respect to po- sitions to be taken in the negotiation process. He testified further that the offers which were made by Respondent during negotiations and the employees' counteroffers, and vice versa, were discussed by the employees after re- ceiving blow-by-blow reports from the negotiating com- mittee. Tuvell took certain positions with respect to the demands that he thought should be made of the employ- er and, more often than not, his suggestions were adopt- ed after an informal vote of the employees. Shortly after the contract was entered into, or in the first part of November, Tuvell went on vacation and re- turned to work on Monday, November 27. He testified that on the afternoon of his first day back at work he was approached by Fred Breakey, the production man- ager, and was told by Breakey that he had some bad news for him. Breakey then proceeded to tell him he was laid off. Breakey also said, "I'm also going to have to tell you that I can't call you back." Tuvell responded, "What's the matter, I mean what's the reason?" Breakey replied that Huey (Huey Johnson, the president of the Company) had told him that Tuvell fought him on the contract. And then Breakey said, "I'm not supposed to tell you this." Tuvell then said, "If you are going to lay me off and you're not going to call be back that's the Lfl ,, othcrsvs ill .';llad ll ¢x'l, t rct'if , 't'od i Iccrill ook Plrce in 1 978 CUSTOM WOOD INTERIORS, INC. 189 same as being fired ain't it." Breakey said, "Yes, it is." And with that Tuvell began to pack his tools. Breakey testified as follows concerning that conversa- tion: I approached Mr. Tuvell and told him I have some bad news, that I was going to have to let him go. And at that time it seems like-I don't remem- ber the exact conversation. But he said "Well, does it have anything to do with union activity?" I said, "No. It's not that. If it was I couldn't tell you that anyway." He said, "Well, will I be coming back?" I said, "It doesn't look that way." Breakey also testified that Tuvell was a skilled worker and that he did not want to let him go, but Johnson de- cided they had to let him go because work was slow and they had to keep cutting back. Respondent laid off a number of employees in Septem- ber and the first week of October. Three of those em- ployees were recalled in November for a rush job and again laid off in November. There were no other layoffs after the earlier large layoff except Tuvell's. Huey Johnson, president of Respondent, at first testi- fied that Fred Breakey had decided to lay off Tuvell but both he and Breakey later testified that Breakey usually decided which employees to lay off, but the only em- ployee that Johnson selected for layoff was Tuvell. John- son testified that Tuvell escaped being laid off in Septem- ber because Breakey wanted to keep him. Breakey thought he was a good worker. After examining his affi- davit, Johnson recalled that Tuvell escaped an earlier layoff because he was not at the plant at that particular time and, only after the discussion with Breakey, he agreed to keep Tuvell. Breakey, however, was not aware of the decision to lay off Tuvell in the earlier layoff and the decision to lay off Tuvell only if things got slower. Johnson testified that Tuvell was laid off because of his poor performance and spending too much time in the restroom. He said he did not know what Tuvell did in the restroom, but had been told that he was smoking al- though he never saw Tuvell smoking in the restroom. Although Tuvell smoked in the restroom standing in the doorway and Johnson admitted observing Tuvell closely, Johnson claims he never saw Tuvell smoking but was merely told that he was smoking. Notwithstanding, Tuvell was observed by many other employees while he smoked in the restroom with the door open. Johnson later testified that Tuvell was placed on the layoff list be- cause of excessive restroom breaks. Breakey testified that Johnson wanted to lay off Tuvell because his work habits and the habit he men- tioned was smoking in the restroom. However, Breakey said that Tuvell did not smoke in the restroom any more than any other employee but because he left the res- troom door open it was obvious and was seen by John- son while others were not. Tuvell testified without con- tradiction that he had never received any complaint about his smoking nor any notice that Respondent was not satisfied with his work. As for management's awareness of Tuvell's discussions with other employees concerning their positions during collective bargaining, there is no direct evidence that any management official was aware of Tuvell's activities. However, the plant was small, ranging from 15 to 25 em- ployees, and most of Tuvell's activities occurred near his workbench. As previously stated, the bargaining began in September and ended in late October. Johnson, while testifying, admitted that he had been watching the floor very closely during the period of September and Octo- ber and that during October and November he was watching Tuvell's work very closely and keeping re- cords on what was being produced. IV. DISCUSSION AND CONCLUSIONS Considering the small size of the plant, the plant presi- dent's own testimony that he watched the plant oper- ations and Tuvell very closely during the bargaining period, September through October, and at a time when Tuvell and other employees (during work breaks and lunch) discussed offers and counteroffers in connection with the bargaining negotiations then in progress, creates the inference that Johnson was aware of Tuvell's pro- tected union activities in the plant during September and October. The Board and the courts have often inferred company knowledge of employees' protected activities in similar circumstances. Webco Bodies, Inc., d/b/a Webco Pacific, Inc., 595 F.2d 451 (8th Cir. 1979). In Webco, supra, a case whose facts are remarkably similar to the facts herein, the court stated, with respect to company knowledge, as follows: The Board reasonably inferred that the Company knew that the Union organizing campaign was pro- ceeding from the following facts: Union activity was carried on openly in a small plant that employed only eighteen persons. A number of employees discussions about the Union occurred during lunch while they were sitting on truck bodies or chassis at the plant. One of the em- ployees involved in the discussions was the brother- in-law of the plant manager. The nature of the Company's operation was such that responsible management officials were continuously in contact with the work force. The plant manager worked closely with the employees and was often in the plant. See Chauffeurs, Teamsters and Helpers Local 633, N.H. v. N.L.R.B., 166 U.S. App. D.C. 157, 509 F.2d 490 (D.C. Cir. 1974); Amyx Industries, Inc. v. Xi.L.R.B., 457 F.2d 904, 79 LRRM 2930 (th Cir. 1972). In many respects the testimony of Johnson and Brea- key was inconsistent with their own earlier testimony and with each other's testimony. Moreover, Tuvell testi- fied creditably that, when he asked Breakey if he was being fired for his union activity, Breakey told him he was being laid off and would not be recalled because he had opposed Respondent's contract proposals and influ- enced other employees to do the same. On the other hand, Breakey testified that his response was negative when Breakey asked him if he (Breakey) was being fired for union activity but then proceeded to tell Tuvell, in effect, that if he had been laid off for union activity Breakey would not have told him so. To me, that reveals CUSTOM WOOD INTERIORS, INC 189 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Production Manager Breakey would either lie or withhold the truth to suit his or Respondent's purposes. For that reason, and his inconsistent and contradictory testimony, I do not credit him I find that Tuvell was terminated because he was a member of and/or assisted the Union and because he en- gaged in concerted activities for the purpose of mutual aid or protection as alleged in the complaint. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to ef- fectuate the policies of the Act. Having found that Respondent discharged Thomas W. Tuvell because he was a member of and/or assisted the Union and because he engaged in certain concerted ac- tivities for the purpose of mutual aid or protection, I shall recommend that Respondent offer him immediate and full reinstatement to his former position or, if his former position no longer exists, to a substantially equiv- alent position without prejudice to his seniority and other rights and privileges, and make him whole for any losses he may have suffered as the result of his discharge. Any backpay found to be due shall be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).2 Respondent shall also be ordered to cease and desist from infringing upon the Section 7 rights of its em- ployees "in any like or related manner." See Supreme Bumpers Inc., d/b/a Precision Plating, 243 NLRB No. 45 (1979). CONCLUSIONS OF LAW 1. By laying off Thomas W. Tuvell and thereafter re- fusing to reinstate him to his former substantially equiv- alent position of employment because he was a member of and/or assisted the Union and because he engaged in concerted activities for the purpose of mutual aid or pro- tection, Respondent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. 2. By engaging in the conduct prescribed above, for the reasons set forth above, Respondent discriminated and is discriminating in regard to hire, tenure, and terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and Respondent thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. 2 See., generally, Isi Plumbhing Heating Co. 138 NLRB 716 (1962) 3. The unfair labor practices numerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER3 The Respondent, Custom Wood Interiors, Inc., Tampa, Florida, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discriminatorily terminating employees because they engaged in concerted activities with other employ- ees for mutual aid and protection. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Thomas W. Tuvell immediate and full rein- statement to his former position or, if that is not possible, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any losses he may have suffered by reason of his unlawful discharge, in the manner set forth in the section of his Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Tampa, Florida, facility copies of the at- tached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Resondent's autho- rized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event no exceptions are filed as pros ided by Sec 102 46 of the Rules and Regulations of he National Labor Relations Board. the find- ings. conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conlclusions. and Order. and all objections thereto shall be deemed waisted for all purposes 4 In the eent that this Order is enforced b a Judgment of a United States Court of Appeals. the ords in the notice reading "Posted by Order of the National Labor Relations Board' shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "