State Stove & Mfg. Co., Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State Stove & Mfg. Co., Inc. and Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO. Case 26-CA-2506. April 21, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 16, 1967, Trial Examiner Sidney Sherman issued his Decision in this proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 briefs, and the entire record in the case, and hereby adopts 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 adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, State Stove & Mfg. Co., Inc., Ashland City, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge herein was served upon Respondent on August 5, 1966,1 the complaint issued on September 25, and the case was heard on December 1. The issues litigated related to an alleged discriminatory work assignment and ' All events herein occurred in 1966, unless otherwise stated 2 Another allegation of the complaint was dismissed at the hearing 3 Apparently these were the only ones involved in the discriminatory discharge. After the hearing Respondent and the General Counsel filed briefs. Upon the entire record, including my observation of the witnesses, I adopt the following findings and conclusions: 1. RESPONDENT'S BUSINESS State Stove & Mfg. Co., Inc., hereinafter called Respondent, is a Tennessee corporation , and at its plant in Ashland City, Tennessee , manufactures hot water heaters. During the 12 months immediately preceding the issuance of the instant complaint , Respondent shipped from its plant to out-of-State points products valued in excess of $50,000. Respondent is engaged in commerce. II. THE UNION INVOLVED Stove, Furnace and Allied Appliance Workers International Union of North America , AFL-CIO, hereinafter called the Union , is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that on July 19 Respondent assigned Polk to more arduous work and discharged him because of his union activity, thereby violating Section 8(a)(3) and (1) of the Act.2 The answer denies that Polk was assigned to unduly arduous work or was discharged, contending that he refused to do the work assigned to him, thereby quitting his employment. The answer further denies that Respondent had any knowledge of Polk's union activity. A. Sequence of Events On May 23, the Union began a campaign to organize Respondent's plant by passing out handbills to Respondent's employees at a point on a roadway about a block from the plant. This operation was repeated on June 3 and July 19 and 20. About 800 handbills were handed out to employees on the first and second shifts, and about 200 more to the employees on the third shift.3 Attached to each handbill was a union authorization card. Polk was hired on June 13, at a rate of $1.50 an hour and was promised a 5-cent raise within 2 weeks. He was also told at that time by Respondent's personnel manager that Respondent did not have a union and did not intend to have one.4 Polk was assigned to installing jackets on heaters, and after 2 weeks he received a raise of 11 cents an hour. On July 19, while approaching the plant, Polk was accosted by one of the union agents engaged in the handbilling operation, and the two men conversed for about 10 minutes. The agent then handed Polk a number of cardss to be passed out by him in the plant. During their conversation both men were within view of a guard stationed in the plant guardhouse. Arriving at the plant, Polk approached some employees in the plant lunchroom and handed them cards. At this time his supervisor, Anderson, entered the room. There is conflicting testimony, to be discussed below, as to whether Anderson observed the solicitation by Polk. handbilling on June 3, whereas the first and second shifts were circularized on May 23 and July 19 and 20 4 These findings are based on Polk's uncontradicted testimony. 5 The agent estimated the number at 50 cards, whereas Polk thought there were about 150 164 NLRB No. 14 STATE STORE & MFG. CO. Shortly after the beginning of the shift, Anderson ordered Polk to discontinue his regular work of installing jackets on heaters and to wrap fiberglas insulation around the heaters, instead. Polk refused to accept this assignment and, after Anderson consulted with one of his superiors, Polk's timecard was punched out, and he left the plant. B. Discussion The General Counsel does not dispute that Polk refused to accept a work assignment, contending only that such assignment was made by Respondent in the expectation that Polk would refuse it, and that Respondent would thereby be afforded a pretext for discharging him, thus ridding itself of a known union adherent. At the threshhold, it becomes necessary to consider Respondent's contention that it had no knowledge of Polk's union activity. Anderson, who was the prime mover in the discharge of Polk, admitted that he was aware that the Union was passing out handbills and authorization cards, but denied that he knew of any involvement by Polk in any such activity. However, Polk testified that on July 19, just as he was about to hand a union card to another employee in the plant lunchroom, he spied Anderson about 8 or 10 feet away, and that Anderson was looking at Polk, whereupon he desisted from passing the card. On the basis of demeanor, I credit Polk and find that his action in attempting to pass the union card was observed by Anderson.6 From the lunchroom, Polk proceeded to his station on the production line and began his regular work of installing jackets on heaters. Some minutes later,? Anderson instructed Polk to change stations with Armstrong, who was wrapping fiberglas insulation around the heaters, in preparation for Polk's jacketing operation. According to Anderson, he took this action because he observed that Polk, who was a smaller man than Armstrong, was having difficulty handling the heaters, which were of more than average size; and Anderson testified variously (1) that the production line had already begun to fall behind schedule and that both Armstrong and Polk were responsible therefor,8 and (2) that, while the line had not yet slowed up, Anderson anticipated that it would because of the trouble Polk was having with the heaters. According to Polk, he refused the change in assignment, reminding Anderson of an incident about 2 weeks before, when Polk had insulated for about 2 hours, but was taken off that work by Anderson after Polk asserted that he could not do the work because of his sensitivity to the 8 While Anderson was apparently not close enough to read the card, he admitted that he was aware of the fact that the Union was distributing cards to the employees, and, while he denied that he had ever received such a card, himself, there is no dispute that thousands of cards were passed to Respondent's employees by the union agents In view of this, the inference is warranted that Anderson was familiar with the appearance of the card and that he recognized the card in Polk's hand during the lunchroom incident as a union card r Polk estimated that about 30 minutes had passed, whereas, according to Anderson's calculation, it was a matter of 10 to 15 minutes 8If this version is to be credited, the question arises why Anderson thought it would help speed up the line to assign Polk to a job, which even Armstrong, who was more familiar therewith, could not handle adequately B According to Polk, particles of fiberglas adhered to, and irritated, his skin Anderson admitted that other employees had 85 fiberglas,9 and that he would never accept such an assignment again. Anderson professed at the hearing to have no knowledge of any such prior incident, and insisted that on July 19, Polk offered no explanation for his refusal to insulate. On the basis of demeanor, and in view of the circumstantiality of Polk's testimony regarding his prior experience with the fiberglas, I credit such testimony and find that he had been previously assigned to insulation, and was taken off that work, after advising Anderson that he could not tolerate the fiberglas, and that he would never take such an assignment again.10 For like reason, I credit Polk's testimony that on July 19, when Anderson assigned Polk to insulating, he reminded Anderson of the prior incident, in explaining his refusal of the assignment. Thereafter, according to Polk, Anderson insisted that, by refusing to insulate, Polk had quit his employment and, when Polk denied that he was quitting, Anderson announced his discharge. Polk added that he was then taken by Anderson to another supervisor," to whom he reported that Polk had refused to insulate, and despite Polk's explanation that he could not tolerate the fiberglas, and his insistence that he was doing a good job on the production line, the other supervisor punched out Polk's timecard and paid him off. Anderson's version was that, after Polk's refusal to insulate, Anderson took him to the plant superintendent, who, upon being apprised of such refusal, announced that Polk had quit, and instructed Anderson to punch out Polk's timecard. I find that, whichever of the foregoing versions is credited, Polk did not resign but was in fact discharged for his refusal to accept a change in assignment. 12 It has been found that it was Respondent's avowed policy to prevent organization of its employees by a union that: on July 19, Anderson observed Polk in the plant lunchroom in the act of attempting to pass a union card to another employee; about an hour later Polk, at Anderson's instance, was discharged for refusing an assignment, which Anderson had good reason to expect him to refuse; and only 2 weeks before Anderson had relieved Polk of a like assignment, when he complained of sensitivity to the fiberglas. In view of this, and in view of Anderson's aforenoted vacillation as to his reason for assigning Polk to the insulation job on July 19, I conclude that Anderson made such assignment for discriminatory reasons, in the hope that, by rejecting it, Polk would afford Anderson a pretext for discharging him. It follows that, by making such assignment and by discharging Polk for rejecting it, Respondent violated Section 8(a)(3) and (1) of the Act. 13 quit, when assigned to the insulation work, and that he would take an employee off insulation, if it caused his skin to "break out " 10I find, also, as testified by Polk, that on that occasion he offered to "punch out" but Anderson reassigned him to his regular work u Polk was evidently confused as to the identity of the other supervisor Respondent cites this as a reason for not relying on Polk's recollection as to other circumstances However, there is no dispute that another supervisor was involved in Polk's separation (see the text, below), and I do not deem a mere mistake as to the name of such supervisor, with whom Polk had little, if any, contact to vitiate the reliability of his recollection as to matters of more immediate concern to him i2 In any case, even if Polk had quit because of the change in his assignment, it would be appropriate to find that such quitting was a constructive discharge, if such change was in fact discriminatory 13 Respondent contends that there was no disparate treatment 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent's operations described in section I, above, have a close, intimate , and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to the free flow of commerce. V. THE REMEDY It having been found that the Respondent violated Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent on July 19 unlawfully discharged Polk, I shall recommend that Respondent be required to offer him reinstatement to his former of substantially equivalent position without impairment of seniority or other rights and privileges. I shall also recommend that Respondent be required to make him whole for any loss of earnings suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of such discrimination to the date of a valid offer of reinstatement, less his net earnings during such period. Backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum . Isis Plumbing & Heating Co., 138 NLRB 716. In view of the discriminatory conduct found above, there exists a threat of future violations by Respondent, which warrants a broad cease-and-desist order. CONCLUSIONS OF LAW 1. Respondent is an employer under the Act. 2. The Union is a labor organization under the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by assigning Polk to more arduous work because of his union activity and discharging him because of his refusal to accept such assignment. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent, State Stove & Mfg. Co., Inc., Ashland City, Tennessee, its officers, agents, successors, and assigns, shall be required to: 1. Cease and desist from: (a) Discouraging membership in Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or in any other labor organization, by discriminating against employees in regard to their hire or tenure of employment, or in regard to their work assignments. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union or any other labor organization , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer John W. Polk immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and notify him if he is presently serving in the Armed Forces of the United States of his right 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. (b) Make whole the said employee in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy" for any loss of pay he may have suffered by reason of Respondent's discrimination against him. (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 necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Ashland City, Tennessee, copies of the attached notice marked "Appendix."14 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith. 15 of Polk, citing testimony by Anderson that Carr, who had quit because of an assignment to insulating , applied for rehire and was rejected, when he indicated that he was still unwilling to handle insulation However, Polk testified, without contradiction, that he had observed other employees refuse to insulate, who were not discharged Moreover, more pertinent here, in any case, is the disparity in the treatment of Polk, himself, who, as found above, 2 weeks before his discharge had been reinstated despite his refusal to insulate, but only an hour after being observed with a union card in his hand was discharged for essentially the same conduct Respondent points also to the undisputed testimony that all the employees on the production line were subject to intermittent assignments to insulating work However , as already noted, Anderson admitted that he would not press such an assignment on employees who demonstrated sensitivity to fiberglas, and, on the basis of Polk's credited testimony regarding his own experience, I find that Anderson did not, as his testimony implied, require that such sensitivity be demonstrated by the appearance of a skin rash , but accepted an employee 's assurance that he could not tolerate the fiberglas " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 's In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " STATE STORE & MFG. CO. 87 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or any other labor organization, by discriminating against employees in regard to their hire or tenure of employment, their work assignments , or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form , join , or assist Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to John W. Polk immediate reinstatement to his former or substantially equivalent position , restoring his seniority and other rights and privileges, and WE WILL make him whole for any loss of pay suffered by reason of our discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining , members of Stove, Furnace and Allied Appliance Workers International Union of North America , AFL-CIO, or any other labor organization. STATE STOVE& MFG. CO., INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right 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. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Telephone 534-3161.