Ethan Allen, Inc.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Randolph Division, Ethan Allen, Inc. and Naomi A. Falcone. Case 1-CA-9479 June 28, 1974 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On April 10, 1974, Administrative Law Judge Max Rosenberg issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Randolph Division, Ethan Allen, Inc., Randolph, Vermont, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all par- ties represented, this proceeding was tried before me in Concord, New Hampshire, on March 5, 1974, on a com- plaint filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Randolph Division, Ethan Allen, Inc., herein called the Respondent.' At issue is whether Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discharging Naomi A. Falcone, the Charging Party, on No- vember 16, 1973. Briefs have been received from the Gener- al Counsel and the Respondent which have been duly considered Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses who I The complaint, which issued on January 22. 1974, is based upon a charge testified , I hereby make the following- FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Respondent, a New York corporation, maintains an of- fice and place of business in the town of Randolph, County of Orange, State of Vermont, where it is engaged in the manufacture, sale, and distribution of furniture and related products During the annual period material to this pro- ceeding, Respondent imported products from outside the State of Vermont valued in excess of $50,000 and shipped finished products to points located outside said State valued in excess of $50,000. The complaint alleges, the answer ad- mits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Naomi A. Falcone on November 16, 1973,2 because of its belief that she had engaged in or was engaging in protected, concerted activi- ties. For its part, Respondent denies the commission of any unfair labor practices proscribed by the statute Falcone, aged 18 at the time of the hearing, dropped out of high school when she was 16 years old. Thereafter, she obtained employment as an apple picker in Vermont, worked remuneratively to build a log cabin in New York, sojourned in a commune, and toiled as a salad girl in a cafeteria at John Hopkins University in Maryland. On or about November 5, Falcone visited the State Unemploy- ment Bureau in Randolph, Vermont, a town located near her parents' home, in quest of further employment, and was referred to Respondent's personnel office. Shortly thereaf- ter, she visited the plant and was interviewed by Andre Tollefson, Respondent's personnel director. During the in- terview, Falcone outlined her employment history and per- sonal life and was told to report for work when she managed to arrange for appropriate transportation from home to plant On Tuesday, November 13, Falcone reported to Tollef- son for work After a brief discussion concerning her assign- ment as a sealer-sander in the finishing department, Tollefson escorted Falcone to her work station where she was introduced to Arthur Dahlberg, Respondent's assistant superintendent. Following a short briefing on her work schedule, Falcone embarked upon her duties. It is undisputed and I find that, during the 4 days of her employment, which terminated on November 16 under cir- cumstances to be chronicled hereinafter, Falcone per- formed her tasks in a capable and satisfactory manner. In the course of that employment, she had occasion to con- verse with some of the women who labored on her produc- tion line and learned of their dissatisfaction with the terms and conditions of employment which Respondent offered to its employees. According to Falcone, "This upset me and which was filed and served on December 10, 1973 2 Unless otherwise indicated, all dates fall in 1973 212 NLRB No. 33 RANDOLPH DIV., ETHAN ALLEN 149 I asked them . . . what they thought could be done and was there any possibility of unionization ...: ' Events in this regard abided until November 16, when Falcone reported for duty at her usual hour. During her coffeebreak that morning, she called upon Assistant Super- intendent Dahlberg in his office. Falcone's testimony is es- sentially undermed and I find that, during an ensuing conversation, she "asked if there was any kind of financial statement that I could see about what the company was making and where the money was going to ...." Dahlberg appeared confused by this request and inquired into Falcone's motive for the production of Respondent's corpo- rate records. Falcone reiterated that she wished to know "how much money went in to labor; how much money went in to different things .... I wanted a breakdown of that sort." At this juncture, Dahlberg suggested that she pur- chase a share of Respondent's stock so that she could pro- cure a copy of the annual stockholders' report which might contain the desired information. At the end of their conver- sation, Dahlberg told Falcone to contact Personnel Director Tollefson in her quest for the financial data. Falcone then returned to her work station. I find that, shortly before her lunchbreak, Dahlberg approached her and stated that "he thought I should see Mr. Dudek [Respondent's plant manager] about the financial statement and then asked me what I wanted it for. I said that I was concerned that there were no unions and I thought there ought to be more knowledge about the company and what it was doing with the money." Dahlberg then launched into a discussion regarding the production changes which Re- spondent contemplated to reduce costs, and his retirement prospects. During her lunchbreak, Dahlberg again visited Falcone and summoned her to his office. When they arrived, Dahl- berg discharged her, remarking that "everybody has a hard job to do and that he didn't think I'd be happy there ...... After handing Falcone her final paycheck, and, according to Falcone's further testimony, "I [Falcone] was really upset about it and I asked him if it was because I had asked him about a financial statement and he said he really couldn't say and then he said he'd arrange for me to have a ride home and I was still trying to find out why he was firing me; and I asked him to be more honest with me and he just wouldn't commit himself at all and he got me a ride home and I left.;, Falcone departed the plant at 12:30 p.m. on Friday, No- vember 16, some 4 hours before the end of her shift, never to return again. Dahlberg's testimony regarding the events which tran- spired relative to Falcone's separation on November 16 is not at substantial variance from Falcone's sworn utter- ances. Dahlberg stated that he made the final decision to discharge Falcone after engaging in two conversations with her on that day and after communing with his superior, William Dudek. Dahlberg corroborated Falcone' s testimo- ny that, in his first conversation with her, the employee requested a financial statement revealing the Company's expenses and wage distribution. Dahlberg was taken aback by Falcone's demand, and responded that "if she bought a share of stock it might answer her questions." At the con- clusion of the colloquy, Dahlberg ventured to Dudek's of- fice to turn in a production report. In the presence of Respondent's regional manager, who was making a peri- odic inspection of the plant, Dahlberg related the intelli- gence that "I have an employee who's interested in a finan- cial statement." Dudek replied that none was available and advised Dahlberg that the employee could obtain a finan- cial report by investing in the stock of the enterprise. Dahl- berg thereupon returned to his office and, on the way, stopped off to converse with Falcone once more. Dahlberg informed Falcone that she should direct her inquiries re- garding company finances to Dudek. Dahlberg added that he was "buffaloed" by her request for financial data. Ac- cording to Dahlberg, Falcone then remarked, "Why can't I get some of this information from the secretaries." At this point, Dahlberg felt that "we weren't getting very far. She wasn't accepting my explanation of it." As he prepared to leave, Dahlberg stated, "Gee, Naomi I just can't under- stand why all these questions. Nobody else has asked me this before...." Dahlberg conceded that he heard Fal- cone state that "I just can't understand why there isn't a union available." Following the aforementioned conversation, Dahlberg entered Dudek's office and reported that Falcone "wants to see the secretaries to get the information" regarding Respondent's financial position. Dudek became annoyed and suggested to Dahlberg that "You've got enough to do out there why don't you get rid of her . . . . Somebody taking her place might appreciate the job better than Naomi appeared to be." According to Dahlberg, he did not inform Dudek about Falcone's comment regarding unions until after she had been terminated. I do not credit Dahlberg on this score, although resolution of this issue is not critical to my disposition of this case. Following his discussion with Dudek, Dahlberg called Falcone into his office. Dahlberg testified that "I didn't want to go into any great big deal about why I thought she wouldn't fit into our picture, so I just said, Naomi, ev- erybody has a difficult job to do and now I got one. I said I'm afraid I'm going to have to discharge you. I already had her check and I gave her the check; and then she asked me, why and I said Naomi I dust want to leave it at that. I don't think you'll be happy here." When pressed for the reason for Falcone's separation, Dahlberg stated that "The reason that I fired her at noon which might seem a little peculiar is because for all the new hires hired in one week [Dudek] has a meeting on Friday afternoon at a quarter to four. He introduces himself and they, in turn, introduce themselves. He welcomes them to the company and so forth; and I had felt that Naomi wouldn't be a permanent employee at our plant. She wouldn't work out as a permanent employee. I don't want her to go to the meeting and come out of the meeting at 4:00 and then have her come to my office and say, well, Naomi I'm sorry I'm going to have to dismiss you. I really felt that I'm going to have to dismiss you." Finally, Dahlberg allowed as how he "did the easiest thing to get out of a bad situation" because "The whole thing seemed so nutty to me, you know, her asking me all these questions. Her being persistent about it it just didn't strike me as being normal. I mean a normal situation. I wouldn't have said she was a nut maybe; but I might have been thinking it." William Dudek's testimony paralleled that rendered by Dahlberg and will not be recorded here. Suffice it to say, 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Dahlberg told Dudek about Falcone's demand for financial records, Dudek retorted "look you got a screwball out there. It's your department you do what you want, but if I were you I'd get rid of her. You have enough other problems than worrying about a screwball." At the outset of the instant hearing, counsel for Respon- dent was queried by the Administrative Law Judge as to the reasons for the termination of Falcone on November 16. Counsel elected to stand mute, proffering the assurance that, as the testimonial evidence was unfolded, Re- spondent's legal motivation in taking this personnel ac- tion would become manifest. Unfortunately, counsel failed to lead me, during the trial, to any specific trough of excul- pation for Respondent's actions. All that I can garner on the basis of this record is that Respondent decided to rid itself of Falcone because (1) she performed her seeler-sand chores while seated rather than standing; (2) she irritatingly sought to obtain Respondent's financial data from office employ- ees rather than from its officials or by the purchase of corpo- rate stock; and (3) she was a "screwball" due to her previous employment and personal history. On the evidence submit- ted in this proceeding, I am not persuaded that Re- spondent's defenses stand the test of honest scrutiny. With respect to (1), it is undisputed that Falcone's work product was never a subject of criticism by management. While it is true that she preferred to perform her chores in a sitting position, it is uncontroverted that her immediate supervisor, Leroy Goad, acquiesced in this stance when he observed that Falcone accomplished her tasks in a satisfac- tory manner. Indeed, during his examination, Plant Super- intendent Dudek confessed that the posture of Falcone on the seeler-sander production line played no role in her dis- charge. Regarding (2), Falcone steadfastly maintained on the stand that she had not informed Dahlberg that she intended to seek information concerning Respondent's fi- nancial status from the office employees. I credit her testi- mony in this regard, not only because she impressed me as a sincere and forthright young lady, but also because of the quality of the countervailing testimony of Dahlberg. Thus, Dahlberg testified that he apprised Falcone that he would do everything in his power, to provide the requested infor- mation and, further, he assured her that Plant Superinten- dent Dudek would be at her disposal at any time to convey the data to her. Finally, concerning (3), if Falcone was in fact a "screwball" whose discharge was demanded due to her previous work history and life style, I find it not only implausible, but incongruous, that Tollefson would have hired her in the first place in light of the fact that he had been fully apprised of Falcone's background during her entrance interview. In short, I am convinced and find that Respondent select- ed Falcone for discharge on November 16, not because she had been derelict in her duties or had proved an unworthy employee, but solely because Respondent believed or sus- pected that Falcone had or was about to embark upon the initial stages of unionizing Respondent's plant. I therefore conclude that, by discharging Falcone, Respondent thereby violated Section 8(a)(1) and (3) of the Act.3 3 See System Analyzer Corp, 171 NLRB 45, 50; San Juan Lumber Company, 144 NLRB 108, 113 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities set forth in section II, above, occurring in connection with Respondent's operations described in sec- tion I, above, have a close and intimate 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 thereof. IV THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Naomi A. Fal- cone on November 16, 1973, for reasons which offended the provisions of Section 8(a)(3) and (1) of the Act. I shall therefore recommend that Respondent make her whole for any loss of pay which she may have suffered as a result of the discrimination practiced against her. The backpay pro- vided for herem shall be computed in accordance with the Board's formula set forth in F. W Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and con- clusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Naomi A. Falcone, thereby discrimi- nating in regard to her hire and tenure of employment, in order to discourage her engagement in protected, concerted activities because of its belief that she engaged in union activities, Respondent has engaged in and is engaging in unfair labor practices 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 National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER4 Respondent, Randolph Division, Ethan Allen, Inc., Ran- dolph, Vermont, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, thereby discriminating in re- gard to their hire and tenure of employment, in order to 4In the event no exceptions are filed as provided by Sec 10246 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. RANDOLPH DIV., ETHAN ALLEN discourage their engagement in protected, concerted activi- ties. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Naomi A. Falcone immediate and full rein- statement to her former job or, if it no longer exists, to substantially equivalent employment and make her whole for any loss of pay which she may have suffered as a result of the discrimination practiced against her, in the manner set forth in the section of this Decision entitled "The Reme- dy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records and reports, and all other records necessary to analyze the amount of backpay due herein. (c) Post at its plant in Randolph, Vermont, copies of the attached notice marked "Appendix." 5 Copies of said no- tice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it 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 to insure that said notices are not al- tered, defaced, or covered by-any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. '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 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 151 WE WILL NOT discharge our employees from work, thereby discriminating in regard to their hire and ten- ure of employment, in order to discourage their engage- ment in concerted activities which are protected under the Federal law known as the National Labor Rela- tions Act, as amended. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL make Naomi A. Falcone whole for any loss of pay she may have suffered as a result of our discrimi- nation practiced against her, and WE WILL reinstate her. All our employees are free to become, remain, or refrain from becoming and remaining members of any labor orga- nization. RANDOLPH DIVISION, ETHAN ALLEN, INC (Employer) Dated By (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 direct- ed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.