Starbrite Furniture Corp.

STARBRITE FURNITURE CORP. 507 Starbrite Furniture Corp. and Local 140, Bedding, Curtain & Drapery Workers, United Furniture Workers of America, AFL-CIO. Case 2-CA-13621 October 19, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS I AND WALTHER engaged in union and protected concerted activities for the purpose of collective bargaining or other mu- tual aid or protection. "(e) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX On May 18, 1976, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs. The General Counsel also submitted 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, as modified below. 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, Starbrite Furniture Corp., Stamford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph 1(c) and substitute the follow- ing: "(c) Engaging in acts of surveillance of its employ- ees' union meetings." 2. Add the following as paragraphs 1(d) and 1(e): "(d) Discharging employees, or otherwise discrim- inating against employees in regard to hire, tenure, or other conditions of employment, because they have 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the' record and find no basis for reversing his findings The Administrative Law Judge inadvertently omitted a specific cease- and-desist order covering those violations of illegal surveillance and illegal discharge which he found Respondent had committed We therefore modify the cease-and' desist order accordingly and we substitute the attached notice for that proposed by the Administrative Law Judge 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 had the opportu- nity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge employees because they have engaged in union and protected con- certed activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL NOT threaten our employees with lay- offs or discharge because of their union support. WE WILL NOT threaten our employees that union membership will cause the closing of the plant. WE WILL NOT conduct surveillance or give the impression of any surveillance of employees' union activity. WE WILL NOT in any other manner interfere with employees' rights under Section 7 of the National Labor Relations Act, including the right to vote for, join, or assist labor organiza- tions. WE WILL offer Lesmes Caseres immediate and full reinstatement to his former job or, if that job is no longer available, to a substantially equiva- lent position, without prejudice to his seniority or other rights, privileges, or working conditions. WE WILL make Lesmes Caseres whole for any loss of pay or other benefits suffered as a result of the termination of his employment. STARBRITE FURNITURE CORP. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge: This case arises upon a complaint issued on May 28, 1975, as 226 NLRB No. 71 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended during the hearings, by the National Labor Rela- tions Board alleging that Starbnte Furniture Corp. had vio- lated Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, by (1) several acts and practices which interfered with, restrained, and coerced its employ- ees in the exercise of their rights under Section 7 of the Act and (2) by discriminatorily discharging an employee for his union activity. In its answer, filed on August 13, 1975, Re- spondent admitted all jurisdictional and certain other alle- gations in the complaint, but it denied all charges that it had committed any unfair labor practices. The hearing on these charges was held in Bridgeport, Connecticut, on November 24 and 25 and December 2, 1975. The General Counsel and Respondent were repre- sented by counsel and afforded full opportunity to adduce evidence, to call, to examine and cross-examine witnesses, to make oral argument, and to file briefs. Based on the entire record in this case, including briefs of counsel and from my observation of the witnesses, I make the following findings of fact and conclusions of law with particular reference to the following issues: First, whether Respondent violated Section 8(a)(1) of the Act by threatening its employees with discharge'if they joined the Union, by granting wage increases and additional vacation days to dissuade them from joining the Union, and by keeping under surveillance the meetings of the Union. Sec- ond, whether Respondent violated the Act by discharging an employee for his union assistance and support. FINDINGS OF FACT A. Summary of the Record Evidence The Respondent, Starbrite Furniture Corporation (Star- brite) is a Connecticut corporation with its principal place of business located at 69 Jefferson Street, Stamford, Con- necticut, and admittedly an employer within the meaning of Section 2(6) and (7) of the National Labor Relations Act. The Company is engaged in the manufacture of sum- mer furniture and children's or juvenile furniture. Starbrite's chief executive is Joseph Tandet. Additional supervisors of Respondent are Frank Rega, general fore- man; Mariano Parades, foreman; and William Crespo Herrera, also a foreman. All are admittedly agents of Star- brite, acting on its behalf, and supervisors thereof, within the meaning of Section 2(11) of the Act. The Union, Local 140, Bedding, Curtain & Drapery Workers, United Furniture Workers of America, AFL- CIO, is the Charging Party and a labor organization within the meaning of Section 2(5) of the Act. The record shows that the Union began an organiza- tional campaign at Starbrite in January 1975 by involving three employees, Felix Rodriguez, William Baiz, and Lesmes Caseres. On or about January 20, 1975, Caseres requested the assistance of his foreman, Mariano Parades, in organizing the employees. Parades, however, warning that the "boss" would sooner close the plant than permit the Union, refused his cooperation. Nevertheless, William Baiz and Lesmes Caseres received from the Union authori- zation cards and began to distribute them to their fellow employees on January 29, 1975. Several employees showed these, cards to Foremen Parades and Herrera inquiring whether or not they should sign those cards.; At least one employee, William Baiz, similarly informed Frank Rega, the general foreman at Starbnte. Felix Rodriguez testified that Foreman Parades warned him that all those who signed union cards would be fired. Rodriguez subsequently inquired from Foreman Herrera whether he would join the Union. Herrera also remarked that those employees who signed the cards would be fired. Nevertheless, on January 30, 1975, Caseres who had be- come the more active of the union organizers among the employees continued to distribute union cards during his lunch hour. He handed out a total of approximately 23 cards. On the following day, January 31, 1975, Caseres re- ported for work as usual at 8 a.m. However, Frank Rega, the general foreman, refused to permit Caseres to punch in for work and suggested that Caseres take leave for a few days. When asked why, Rega replied that Caseres was breaking too many chairs during his work. Rega further remarked that he had tried to help Caseres and given him several raises, but that Caseres had turned against him. At that point Caseres attempted to remain inside the factory to call the Union and to wait for his carpool ride back to New York City. Rega, however, ordered him off the prem- ises . Caseres left the plant, waited for his ride, and distrib- uted additional union cards during the remainder of the day outside the plant. Following this episode on'February 3, 1975, Foreman Parades spoke to several employees, including Ana Caban, Ramon Ortiz Huerta, William Baiz, and Norma Hernan- dez, warning them not to get involved with the Union or they would be laid off. , On February 6, 1975, Caseres returned to the plant to pick up his paycheck. He looked for Rega but initially could find only Foreman Parades. Caseres then testified as follows, concerning his conversation with Parades: And I asked Mariano [Parades], "Am I coming back to work?" He said, "No, I'm not coming back to work." Then I asked him, "Why was I fired really?" You know, because chairs get broken all the time. I'm breaking as many chairs as anybody else. Chairs get broken all the time. So, he said that I was really fired because of the Union. Following this conversation Caseres ultimately met Rega and told him that he was ready to return to work, since a "few days" had already passed and became a whole week without work. Rega replied "no, that he didn't want [him] there no mote there was plenty of other people going." Thereupon Rega handed him the final paycheck. The record further shows that on February 6, 1975, sev- eral employees were laid off, among them Ramon Ortiz Huerta. He testified that, a few days prior to February 6, Parades told him: "If you people continue that business of the Union what the old man is going to do is fire you all and close the factory." At noontime, on February 6 or 7, Parades distributed paychecks and layoff slips to several employees and stated to Huerta: "You can take the Union STARBRITE FURNITURE CORP. now, you have the Union with you." The following week, when Huerta returned to pick up his paycheck and to re- turn his uniform, he asked Frank Rega when he could re- turn to work. Frank Rega merely replied: "You go ahead with the Union." The record further contains two stipulations: One of them provides that Starbrite granted certain wage increases and additional vacation days. More specifically, it is stipu- lated that Respondent had granted the following wage in- creases: January 19, 1973-10 cents; October 5, 1973-10 cents; May 30, 1974-10 cents; and March 14, 1975-15 cents. In addition, on March 14, 1975, the employer agreed to recognize Good Friday and Washington's Birthday as va- cation days. The second stipulation is in the form of an admission by Respondent that on two occasions it "kept under surveil- lance the meeting places, meetings and activities of the Union, and the concerted activities of its employees." B. Analysis of the Evidence Alleged threats: An analysis of the record evidence as briefly summarized above clearly shows that Respondent has made threats to its employees to the effect that their union support would result in their layoff and prompt management to close the plant. The consistent testimony of employees Baiz, Rodriguez, Caban, Hernandez, and Huerta has convinced me that these threats were directly made by Foremen Parades and Herrera. The record fur- ther discloses that these statements were not factual pre- dictions of economic necessities but unsupported threats directly designed to dissuade the employees from support- ing the Union and to discourage the union drive. Indeed, Respondent had not even maintained in this proceeding that the entry of the Union into the plant would entail any layoffs or require the shutdown of the plant as a matter of economic necessity. Rather, Respondent has simply denied having made these statements to its employees. However, as already stated, I cannot credit these denials in- the face of the consistent testimony to the contrary by at least five employees. Respondent's unequivocal statements to its employees that they would be laid off if they continued to support the Union and the unsubstantiated remarks to the employees that management would rather close the plant than to per- mit the Union are classic threats in violation of Section 8(a)(1). This is further supported by Respondent's animus as evidenced in the discharge of Lesmes Caseres. Alleged unlawful discharge: It was Caseres' testimony that, according to Foreman Parades, Caseres was dis- charged because of his union activity. Caseres also testified that on the day of his discharge Rega's explanation for the suggestion to take off a few days and not to punch in on that day was that Caseres was breaking too many chairs. Respondent, however, contends that Caseres was dis- charged because he was caught smoking marijuana during working hours. Caseres freely' admitted to having smoked "pot" on a few occasions, but also testified that Respon- dent frequently tolerated the drinking of liquor during and 509 after working hours by its employees and foremen and that his "pot" smoking incidents had happened some time past. More specifically, Caseres testified that he was first warned 6 months and subsequently 3 months prior to his discharge about marijuana incidents; and he further admitted that he had smoked "pot" 3 weeks before he was fired, but he denied having used any drugs any time thereafter. At this point a credibility issue arises, since it was Respondent's testimony that Caseres was caught 1 or 2 days prior to his discharge. The record contains an affidavit by Frank Rega which states that he, Rega, found Caseres "smoking `pot' in the warehouse on Thursday, January 30, 1975." Yet Mr. Tan- det testified that he caught Caseres sometime on or about January 28, 1975, coming out of a bathroom with the odor of marijuana, and that he related the incident to his general foreman, Rega, who took it upon himself to fire Caseres. In his testimony, Mr. Tandet was unable to resolve the appar- ent conflict as to whether it was he or Rega who caught Caseres or whether these were two separate incidents. Even more unreliable was the testimony of Frank Rega dealing with this issue. For example, Rega first testified that he discussed Caseres' discharge with his "boss," Mr. Tandet, between November 25, 1975, after the hearing adjourned and December 2, 1975, when it resumed. When informed that Mr. Tandet had denied having had any such discus- sion, Rega promptly changed his testimony. Reliance on kega's testimony is, therefore, impossible. Caseres' testi- mony on the other hand was direct, forthright, and credible even to the point of his candidly admitting the use of mari- juana. Obviously, the use of drugs on the job is a very serious matter which under ordinary circumstances pro- vides a justifiable basis for the discharge of an employee, particularly under working requirements involved here. Employees such as Caseres are exposed to riveting ma- chines which if handled carelessly could endanger the op- erator of the machine, as well as his fellow employees at the assembly line. The issue here, however, is not whether Caseres had used drugs on the job which he admitted, nor whether it provid- ed a justifiable basis; the real issue is whether this conduct was the real basis for his discharge or whether it was a mere pretext. After carefully weighing the conflicting testimony deal- ing with this issue, as well as Respondent's general lax atti- tude concerning the use of alcohol during and after work- ing hours, as described by Caseres and partially admitted by Tanc`let's testimony, I must conclude that Caseres' dis- charge was primarily motivated by his union activity. This conclusion is further supported by considering the time ele- ment. Caseres' peak activity of his union support, namely the distribution of union cards, occurred on January 30, IP75. And on January 31, 1975, 1 day later, -Rega refused to permit Caseres to punch in for work. The only testimony tying Caseres' use of marijuana to those dates was that of Frank Rega whose testimony I found to be contradictory and unreliable. Tandet's testimony was uncertain about the exact dates, indicating January 28 or thereabouts, as the latest incident. However Caseres' frank and forthright tes- timony leads me to conclude that his latest "pot" smoking incident occurred 3 weeks prior to his discharge. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's argument that the discharge is obviously not union related, since it could have been accomplished with more subtlety by including Caseres with the general layoffs on February 6, 1975, is not persuasive. His dis- charge was obviously intended to impress the other em- ployees with the consequences of an employee's active union support. In sum, I find that Caseres' discharge was discriminatory and in violation of Section 8(a)(1) and (3) of the Act. Alleged unlawful surveillance: Turning now to the allega- tions in the complaint dealing with Respondent's acts of surveillance, it is Respondent's argument that its admission that on two occasions two supervisors sat in a truck several hundred feet from one of the entrances where a union or- ganizational meeting was being held is not sufficient to find a violation as a matter of law. Respondent argues that no employee turned away from the meeting as a result of the truck's presence, that the two supervisors were not present for the duration of the entire meeting, and that top management, Mr. Tandet, was unaware of the actions of Rega and Parades. The law is clear-surveillance of employees is unlawful irrespective of whether the employees knew of it, and even though top management had not authorized the surveil- lance. N.L.R.B. v. Grower-Shipper Vegetable Association, 122 F.2d 368, (C.A. 9, 1941); Bethlehem Steel Company v. N.L.R.B., 120 F.2d 641, (C.A.D.C., 1941). Intertype Compa- ny, A Division of Harris-Intertype Corporation, v. N.L.R.B., 371 F.2d 787, (C.A. 4, 1967). Moreover, the record indi- cates that Frank Rega, one of the parties who engaged in the surveillance, was second-in-command at Starbnte and, therefore, part of top management. Finally, Respondent's suggestion that Rega and Parades were unaware of the strict requirements of the law and that they engaged in the admitted acts of surveillance out of ignorance of the law has long been recognized not to be an excuse. In sum, I have no difficulty in finding that Respondent violated Sec- tion 8(a)(1) of the Act by these acts of surveillance. Alleged unlawful grants of benefits: The final allegation of violation in the complaint deals with Respondent's grant of wage increases and holidays. In this regard, the record merely indicates that a 10-cent raise was granted twice in 1973 and once in 1974 and that on March 14, 1975, a 15- cent raise was given as well as two additional holidays. General Counsel has attempted to supply Respondent's motive for the latest increase as being union related, by relying on inferences and a ' pnor inconsistent pattern of granting such benefits. I find the proposed inferences to be farfetched consider- ing the paucity of the record on this issue. Moreover, I find Mr. Tandet's explanation that pay raises in his company are made once or twice a year, considering the economy and the general profit picture of the company, to be per- fectly plausible and convincing. Finally, General Counsel advances virtually no argument concerning the granting of the 2 vacation days. This leads me to conclude that he may also be convinced that these allegations have not been sus- tained. Accordingly, I find that these allegations in the complaint should be dismissed. CONCLUSIONS OF LAW Respondent, Starbrite Furniture Corporation, an em- ployer engaged in commerce in a business affecting com- merce within the purview of Section 2(6) and (7) of the Act, has violated Section 8 of the Act as follows: 1. Respondent violated Section 8(a)(1) of the Act by threatening its employees that they would be fired or laid off if they supported the Union. 2. Respondent violated Section 8(a)(1) of the Act by threatening its employees that it would close the plant if the Union were admitted in the factory. 3. Respondent violated Section 8(a)(1) and (3) of the Act by discharging its employee Lesmes Caseres because of his union support. 4. Respondent violated Section 8(a)(1) of the Act by en- gaging in acts of surveillance of the employees' union meetings. - All other allegations of violations have not been sus- tained. THE REMEDY Having found that Starbrite engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recommend that Respondent be ordered to post an appropriate notice. In addition, I recommend that Lesmes Caseres be of- fered full and immediate reinstatement to his former or a substantially equivalent position without loss of benefits or seniority, and that he be made whole for any loss of earn- ings suffered by him by reason of the discrimination against him, together with interest at the rate of 6 percent per annum, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following recommended: ORDER' Respondent, Starbrite Furniture Corp., Stamford, Con- necticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with layoff or discharge if they support the Union. (b) Threatening its employees with- the closing of the plant' because of the Union. (c) Interfering in any manner with employees' rights un- der Section 7 of the Act. 1 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 STARBRITE FURNITURE CORP. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Lesmes Caseres immediate and full reinstate- ment to his former job or, if that job is not available, to substantially equivalent employment; without prejudice to his seniority or other rights or privileges and make him whole for any loss of earnings he may have suffered as a result of his discharge in the manner set forth in the section of this Decision entitled "The 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 rele- vant and necessary to a determination of compliance with paragraph (a) above. (c) Post at its Stamford, Connecticut, place of business, copies of the attached notice marked "Appendix." 2 Copies 511 of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's rep- resentative, 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. Rea- sonable 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 2, in wnt- mg, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 In the event 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 "