National Service Industries, Inc.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duchess Furniture, Division of National Service In- dustries, Inc. and Laurie Farber. Case 9-CA-8999 January 9, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 29, 1975, Administrative Law Judge Lowell Goerlich issued the attached Supplemental Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a reply 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 Supplemental Decision in light of the excep- tions and briefs 2 and has decided to affirm the rul- ings, 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Duchess Furniture, Di- vision of National Service Industries, Inc., Florence, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in said recom- mended Order. 1 See original Decision at 220 NLRB No. 6 (1975). 2 Respondent's request for oral argument is hereby denied because the record, the exceptions, and the briefs adequately present the issues and positions of the parties SUPPLEMENTAL DECISION LOWELL GoERLICH, Administrative Law Judge: After a recommendation that this cause be deferred to arbitration, the Board remanded it "to the Administrative Law Judge for his disposition on the merits."' In this regard the perti- nent facts in the prior decision are incorporated herein and have been considered. Credited evidence establishes that on December 3, 1973, Laurie Farber met with Plant Manager Gareth Turner dur- ing which meeting the speed of the seat line was discussed as well as the amount of production expected of the em- 220 NLRB No. 6 (1975). ployees. Disagreement arose as to how much production "could come out of each person." Turner remarked that he "expected 500 seats out of every girl on the line or else he would find someone who could." Farber called Turner's attention to the fact that "they didn't have a way of count- mg individual production for those girls on the line." Far- ber observed, "'What are you going to do, fire three peo- ple,' because people work in a team of three." Turner responded, "We'll have to think up something about that." After the meeting concluded and Farber had reached the hall, Turner "rushed out in the hall" and said, "Little girl, I've got a great idea. I've got a new job for you. All you have to do is stand at the end of a line and count individual production for the people on the line. You'll help me find out who can put out the work and who can't .... I'll have my foreman put you on it tomorrow morning." Farber an- swered, "I don't like the idea of policing the line." On the morrow, December 4, 1974, Farber's foreman, Pete Sizemore, addressed her, "Here's the paper. I want you to write down the production of each girl on this line." Farber responded, "Pete, I'd like you to show me where in the contract this is a production job." He asked, "Are you refusing the job?" Farber answered, "No. I'm not sure if it is a production job. I'd like to talk about it." Farber's fore- man "disappeared" and returned with a suspension notice in which it was related, "You have violated rule 7 2 of fac- tory regulations by willful disobedience and are hereby suspended for 3 days. Future violations of this rule will cause your dismissal from employment at this factory." Farber lodged a grievance for harassment. Lawrence Williams, International representative for the Union, ad- vised Farber "to go back on that job" and "see if in time they could work it out." Farber insisted that the grievance proceed and Employer Representatives Turner, Woldroot, and Sizemore, and Union Representatives Tatum, Mains, and Williams, and Farber met on December 5. Turner denied harassment I by relying on the management rights clause. During the meet- ing Williams asked Farber whether she was "prepared to go back on that job [the new job] right now if the Company would offer it." Farber responded, "No. I don't feel the question of harassment has been dealt with at all." Toward the end of the meeting Farber said that she had one more question. "You haven't answered the question of harass- ment . . . . Has there ever been in this plant ever a Union person who just did counting and nothing else." 4 Turner replied, "Little girl ... you're too smart for me .... I'm going to see my lawyer this Saturday and I'll ask him all your questions and I'll have my answer for you Monday." Thereafter the Respondent denied the grievance and dis- charged Farber on December 9, 1974. On the basis of this evidence the General Counsel claims that "Farber was suspended by Sizemore not for refusal to perform an assigned duty, but rather, because she ques- 2 Rule 7 provided for a warning or discharge at the Company's option for "willful disobedience" 3 Farber thought the harassment was levied on her as a union steward and that she was being transferred to a clerical job (counting only) outside the unit in violation of the contract 4 According to Farber, Turner had mentioned "lots of people who had counted production, which [she] knew" 222 NLRB No. 5 DUCHESS FURNITURE tioned him as to whether or not the job was contained in the collective bargaining agreement." "The Board has consistently held that Section 7 of the Act protects employee attempts . . . to implement the terms of bargaining agreements irrespective of whether the asserted contract claims are ultimately found meritorious and regardless of whether the employees expressly refer to applicable contracts in support of their actions or, indeed, are even aware of the existence of such agreements." John Sexton & Co., A Division of Beatrice Food Co., 217 NLRB No. 12 (1975). In the foregoing case the Board held that it was a viola- tion of Section 8(a)(1) of the Act for an employer to dis- charge an employee for the refusal to drive without a li- cense, where under the existing bargaining agreement he "had an arguable right to refuse to drive with a suspended license." Thus this case teaches that, if an employee has an arguable right to refuse a work assignment under a collec- tive-bargaining agreement, the employee may not be either disciplined or discharged if he exercises such right. In the instant case it is clear that Farber was discharged because she raised the question as to whether she could be unilater- ally assigned to the counting job under the terms of the labor agreement. She was immediately disciplined out-of- hand because she replied, "No. I'm not sure if it is a pro- duction job. I'd like to talk about it," to her foreman's question, "Are you refusing the job?" Under the existing collective-bargaming agreement, Far- ber had an arguable right to refuse the unilateral work as- signment, which may have removed her from the unit cov- ered by the collective-bargaining agreement;5 "thus her assertion of that right constituted a grievance within the framewotk of the contract that affected the rights of all unit employees." Based upon the John Sexton & Co. case, supra, it must be found that Farber was wrongfully discharged in violation of Section 8(a)(1) of the Act .6 In that Farber's discharge cannot be disassociated from her unlawful suspension, was discriminatory in nature, and ipso facto discouraged mem- bership in a labor organization, her discharge also violated Section 8(a)(3) of the Act. 5 The contract does not specifically cover the job to which Farber was assigned nor is a specific wage rate provided for it. Thus it was arguably an excluded job. Indeed it appears to have been a new job, wholly of a clerical nature (the contractual unit covered only maintenance and production em- ployees and janitors), set up by Turner to gratify his desire to monitor the employees on the seat line. Thus Farber legitimately raised the question whether a "Union person" had performed "just . . counting and nothing else." 6 See also Dust-Tex Service, Inc, 214 NLRB No. 60 (1974), wherein the Board held that employee discharges were unlawful because the employees had "exercised their protected right to refuse to accept changes in their conditions of employment to which their collective-bargaining representa- tive had not acquiesced" It was held: "by requiring the three named em- ployees to accept unilaterally imposed changes in wages, together with the prospect of losing their employee status, as a condition of continued em- ployment, the Respondent thereby constructively terminated their employ- ment in violation of Sec. 8(a)(1) and (3) of the Act." Farber had the right to exercise her protected right to refuse the employer's unilateral assignment which would have arguably removed her from the protection of the con- tract. Lacking such protection for the employee, collective bargaining obvi- ously could become a nullity CONCLUSIONS OF LAW 43 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act for jurisdiction to be exer- cised herein. 3. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Laurie Farber on Decem- ber 9, 1974, the Respondent engaged in unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Laurie Farber and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy 7 that the Respondent offer Laurie Far- ber immediate and full reinstatement to her former posi- tion or, if such position no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered as a result of the dis- crimination against her by payment to her of a sum of money equal to the amount she would have earned from the date of her discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. ' Woolworth Company, 90 NLRB 289 (1950), and, including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this pro- ceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent, Duchess Furniture, Division of National Service Industries, Inc., Florence, Kentucky, its officers, agents, successors , and assigns, shall: 7 See The Rushton Company, 158 NLRB 1730, 1731 (1966) 8In 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 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, C.L.C. and its Local No. 781, or any other labor organization, by unlawfully discriminatorily discharging any of its employ- ees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condi- tion of employment in violation of Section 8(a)(3) of the Act. (b) Threatening to discharge or discharging employees for asserting or attempting to assert their rights under a collective-bargaining agreement governing the terms or conditions of employment. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Laurie Farber immediate and full reinstate- ment to her former position or, if such position no longer exists, to a substantially equivalent position , without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of pay that she may have suffered by reason of the Respondent 's discrimination against her in accordance with the recommendations set forth in the section of this Decision entitled "Recommend- ed Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Florence, Kentucky, plant copies of the attached notice marked "Appendix." 9 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 9, after being duly signed by Respondent's representa- tive, 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 in which all parties were permitted to introduce testimony and other evidence, it was decid- ed that we violated the National Labor Relations Act, as amended, by discharging Laurie Farber in violation of Section 8(a)(1) and (3) of said Act. WE WILL offer Laurie Farber her job or, if her job no longer exists, a substantially equivalent job. WE WILL restore her seniority and pay her the backpay she lost because we discharged her. WE WILL NOT unlawfully discharge any of our employees for the same reason we discharged employee Laurie Farber, or discourage member- ship in any labor organization by discriminating against our employees in any other manner with respect to their hire or tenure of employment in violation of Section 8(a)(3) of the Act. WE WILL NOT threaten to discharge our em- ployees or discharge any of our employees for asserting or attempting to assert their rights un- der a collective-bargaining agreement governing the terms or conditions of their employment. DUCHESS FURNITURE, DIVISION OF NATIONAL SERVICE INDUSTRIES, INC.