Modern Carpet Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modern Carpet Industries, Inc. and International Union, Allied Industrial Workers of America, AFL- CIO. Case 16-CA--7459 June 16, 1978 DECISION AND ORDER BY CIIAIRMAN FANNING; AND MEMBERS JENKINS ANDI PENELLO On March 13, i978, Administrative Law Judge i'ussell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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 modified below and hereby orders that the Respondent, Mod- ern Carpet Industries, Inc., Poteau, Oklahoma, its of- ficers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified. Add the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) 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." DECISION STATEMFNI OF THE CASE RUSSEI.L L STEVENS. Administrative Law Judge: This matter was heard in Poteau. Oklahoma, on January 31, 1978.' The complaint, issued October 19, is based on a I All dates hereinafter are within 1977. unless stated to be otherwise. charge filed September 6 by International Union, Allied Industrial Workers of America, AFL-CIO (Union). The complaint alleges that Modern Carpet Industries, Inc. (Re- spondent) violated Section 8(a)(l) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is, and at all times material herein has been, a Georgia corporation, with an office and place of business located in Poteau, Oklahoma, where it is engaged in the manufacture and sale of carpets. During the past calendar year, which period is representative of all times material herein, Respondent purchased and received goods valued in excess of $50,000 directly from points located outside the State of Oklahoma. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial Workers of Amer- ica, AFL-CIO is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. I1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's plant in Poteau, Oklahoma, has several working departments, one of which, the maintenance de- partment, is involved herein. The maintenance department has three employees, named J. B. Clough, Donald Dickson and Frank Ball.2 Supervisor of the maintenance depart- ment is Jim Sanders. The plant manager is Davis Helms, and Phil Stillman is the plant president. Plant operations include the use of tufting machines, which are stabilized by lead that is melted and poured around the base. The lead customarily is obtained in bar form from metal dealers, and the bars are melted for pour- ing at the plant, by maintenance department employees. On August 25 Sanders informed Clough and Ball that he had purchased 400 pounds of lead at a bargain price. San- ders said the lead was used as containers at hospitals, for storing cobalt and radium, but that it was not dangerous. Clough talked that evening with his wife, who is a doctor's nurse, and his wife told him the lead was used to hold 2 All individuals are referred to herein byv their last names 236 NL RB No. 132 1014 MODERN CARPET INDUSTRIES radioactive materials and was very dangerous. During each day thereafter, Clough talked with Dickson and Ball about the lead, and told them what his wife said about it being dangerous. On August 30, Sanders told the three mainte- nance employees to come with him, that they were going to melt and pour the lead. The three employees assisted San- ders in some preparation for melting and pouring the mate- rial, but they refused to participate in the melting and pouring. The three left the plant at their usual time on August 30, and reported for work at the usual time on August 31. They were told upon reporting that they would have to pour the lead or be discharged. Ball asked Sanders if the lead had been checked for radiation, and Sanders replied that the company comptroller, Jess Pair, had called someone about it. The three employees then talked with Pair, who said the man he talked with informed him that the lead was not dangerous; that the hospital had to keep the lead 3 months before selling it; that the radiation could not penetrate lead; and that the radiation had a life of only 48 hours. The men asked for the telephone number of the man Pair talked with, but they did not receive it, and Pair told them to see Sanders. The three employees were given their termination checks on September 1, which included their pay through August 31. The written notice of separa- tion given approximately 2 days later to all three employ- ees states that they refused to do assigned work, and they were discharged for insubordination, violation of company rules, and failure to follow instructions.3 B. Respondent's Defenses Respondent's answer to the complaint, and its answer to charges, filed as a posthearing brief, allege an economic defense. However, no evidence or testimony of probative value was presented at the hearing in support of the de- fense that the three employees involved were laid off or discharged because of economic necessity. Respondent's answer to the complaint also alleges that the three employees walked off the job and thereafter failed to report for work. However, no testimony or evi- dence of weight was presented at the hearing in support of this allegation. It is clear, and Respondent does not seri- ously controvert the fact, that the three employees were told by their supervisor, Sanders, to pour the lead or "go to the house," meaning they were fired 4 unless they obeyed his order to melt and pour the lead. Respondent's basic defense is that Pair ascertained by telephone, from an unnamed individual or individuals, that the lead was free of contamination and safe to use, and that such information was given to the three employees by Sanders and by Pair. Respondent extends that argument 3The summary of events set forth in this paragraph is from ( lough's credited testimony, and that testimon) in all material respects credibl) ,as corroborated by Dickson and Ball. ' Much time was devoted at the hearing to the question of whether or not John Hicks was a supervisor within the meaning of the Act. The complaint alleges such supervisorial status. It appears from the record, including the credited testimony of Stillman, that Hicks was a management trainee ,ith- out a supervisor's status. However. that question need not he resolved. In view of the credited testimony of the employees that they were fired hb Sanders. by contending that Po employees other than. the three mtraintenance employces were concerned about the lead, and that the three either knew it was safe, or should have known that it was safe, and therefore should not have re- fused to work with it, C. Discuasion Respondent attempted to show at the hearing that the fear of the three employees was feigned or was unreason- able. That the fear of the employees was not feigned is appar- ent. (a) Clough's wife, a nurse, warned C(lough about the lead. Whether or not her information was erroneous, is immaterial. (b) The three eniployees talked ariong them- selves about their fear of the lead. (c) The three employees asked Sanders for a written statement of assumption of liability to be signed by Stillman if they agreed to work with the lead, and Sanders replied that he did not believe Stillman would sign such a document. (d) The three em- ployees asked Sanders and Pair for a radioactive check of the lead, and for the names and telephone numbers of the persons Pair called on the telephone about the safety of the lead, but neither a check, nor such names and telephone numbers, was provided to the employees. Respondent did not explain to the employees why it did not accede to their requests. Further, no testimony was adduced by Respon- dent relative to its failure to give the employees what they requested in order to allay their fears. Finally, Pair did not testify to identify the source of his information concerning safety of the lead. (e) The three employees testified in con- vincing manner that they feared the lead and that, had their fears been allayed, they would have worked with it. So far as reasonableness of the fear is concerned, it is clear under the law that such a guide is not an element to be considered when employees are discharged because of activity otherwise protected by Section 8(a)(1) of the Act.5 It thus appearing that the activity here involved was con- certed (all three maintenance employees participated in the protest); that the source of their concern was a work condi- tion they believed to be dangerous:6 and that the three were discharged because of their protest, the allegations of the complaint are proved. I'. tile FFFE( T OF: IHE I NFAIR L.ABOR PRA(TIC ES UPON COIMMERCE Respondent's activities set forth in section Ill. above, occurring in connection with the operations of Respondent described in section 1. above, have a close, intimate, and substantial relationship 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. s\ i. R i . B aishinRgtn 4iumalnnt ( 'tpalni. In(. 370 1 S 9. b16 1962); Ben Pekin ('orp,rairiln. 1 8 NI RB 11025 11 97) h,1llslil (Clurhion (',(S Inc, 221 NI RB 999 1975): Du-l'ri Diplais, Inc, 231 N.RB 1261l 1977). 1015 DECISIONS OF NATIONAL LABOR RELATIONS BOARD v. MHE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative actions designed to effectuate the policies of the Act. It has been found that Respondent unlawfully dis- charged J. B. Clough, Donald T. Dickson, and Frank Ball. I will, therefore, recommend that Respondent offer said three employees their former jobs or, if those jobs no lon- ger exist, substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of sums of money equal to that which they normally would have earned, absent the discrimination, less net earnings during such period, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).7 It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the basis of the foregoing findings of fact and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW i. Modern Carpet Industries, Inc., is, and at all times material herein has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging J. B. Clough, Donald T. Dickson, and Frank Ball for participating in protected, concerted activi- ties, Respondent has engaged in unfair labor practices pro- hibited by Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 The Respondent, Modern Carpet Industries, Inc., Po- teau, Oklahoma, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Discharging employees for protesting what they feel to be hazardous working conditions. (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 labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or pro- tection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action, which is neces- sary to effectuate the purposes of the Act: (a) Offer J. B. Clough, Donald T. Dickson, and Frank Ball immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Post at its Poteau, Oklahoma, operation, copies of the attached notice marked "Appendix." 9 Copies of the attached notice on forms provided by the Regional Direc- tor for Region 16, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 See. generally. Isis Ptumbing & Heating Co.. 138 NLRB 716 (1962). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 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, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 9In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. We intend to carry out the Order of the Board. WE WILL NOT interfere with, restrain or coerce our employees in the exercise of their rights guaranteed to them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by discharging them for participat- ing in concerted activity to protest hazardous working conditions. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of 1016 MODERN CARPET INDUSTRIES their right to self-organization; to form, join or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guar- anteed by Section 7 of the Act, or to refrain from any or all such activities. WE WILL offer J. Clough, Donald T. Dickson, and Frank Ball immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings, with interest thereon. MODERN CARPET INDUSTRIES. INC 1017