Dawson Cabinet Co., Inc.

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dawson Cabinet Company, Inc. and Lois Gastineau. Case 17-CA-7101-2 February 17, 1977 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On October 26, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent and counsel for the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Dawson Cabinet Company, Inc., Carterville, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' Respondent contends the Administrative Law Judge 's theory for finding that Gastineau was unlawfully discharged was not embodied in the allegation of the complaint and that the allegation should be dismissed for lack of notice We believe, however, that the issue of whether Gastineau was discharged for refusing to work in protest of unequal pay was fully litigated and the misconduct found clearly related to the conduct specifically alleged and therefore find no ment in Respondent's contention. See International Longshoremen 's Association, AFL-CIO, Local 814 (West Gullf Maritime Association), 215 NLRB 459,463-464 (1974) DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter came on for hearing at Joplin, Missouri, on August 19, 1976, upon the General Counsel's complaint, the principal allegation of which is that Respondent discharged Lois Gastineau on February 13, 1976, in violation of Section 8(a)(l) of the National Labor Relations Act, as amended, 26 U.S.C. § 151, et seq. The complaint, as amended, also alleges incidents of interrogation and creating the impres- sion of surveillance in violation of Section 8(a)(1). Upon the record as a wholes including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: 228 NLRB No. 47 FINDINGS OF FACT 1. JURISDICTION Dawson Cabinet Company, Inc., is a Missouri corpora- tion engaged in the manufacture and wholesale distribution of furniture products. In the course of its business, Respondent annually ships goods, products, and materials valued in excess of $50,000 directly to customers outside the State of Missouri. Respondent is now, and at all times material herein has been, an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background There is little real dispute concerning the material facts in this matter, the parties principally disputing the emphasis, timing, and legal conclusions to be drawn from those facts. The following summation is based upon the generally credible testimony of all the witnesses. Respondent is a family owned and operated business with the two principal bosses, James and Gary Dawson, being brothers. The total work force in early 1976 was approximately 22 individuals of whom about 16 worked in production. Of this number approximately seven or eight were women. While Respondent has three production departments, and while the employees are generally as- signed to specific jobs, it does appear that all the employees, from time to time, worked in the different departments. The uncontradicted testimony of Lois Gastineau is that the women worked at jobs interchangeably with the men. Lois Gastineau had been first employed by Respondent in March 1973. Between that time and her discharge on February 13, 1976, she had two breaks in her employment and had been rehired. She was considered to be a good employee and was apparently reasonably close to the Dawson family, at least insofar as she was asked by the Dawson's for recommendations on prospective employees and the like. At the time of her discharge Gastineau was earning $2.50 per hour, being one of the two highest paid women employees. At that time there were at least two male employees, both of whom had less seniority at the plant, did similar work to Mrs. Gastineau, and were earning $2.75 per hour. It was this discrepancy which lead Mrs. Gastineau and Constance Everitt to complain about sex discrimination with the Wage and Hour Division of the Department of Labor, which they did in mid-September 1975. This fact, however, was unknown to the Company until on or about January 22, 1976. At a state unemployment compensation hearing on Everitt's discharge, she stated that she had filed such a complaint. Everitt made no mention at this time that Gastineau had joined with her. Thus, as of January 22, the Company knew that sex discrimination charges had been filed, however, no contact up to that time had been made with the Company by the DAWSON CABINET COMPANY 291 Wage and Hour Division , nor indeed was such contact made until subsequent to Gastineau's discharge. On January 22, following his return from the Everitt's unemployment compensation hearing , James Dawson approached Gastineau and engaged her in conversation concerning the hearing that he had just been to and the sex discrimination charge . Gastineau testified that Dawson said, "What do you think you are doing to us" as he slammed down Everitt's personnel file. Dawson does not recall saying anything like that, but in any event, did admit to a conversation with Gastineau concerning the wage rate differential between men and women, which he attempted to explain. On January 26, Mrs . Gastineau had a conversation with Gary Dawson in a small office near the production area. During this, three subjects were discussed, two of which related to other plant personnel and have no bearing on Mrs. Gastineau's discharge. The third subject discussed was her grievance that the Company was paying men more than women for doing the same work . While Mrs. Gastineau and Gary Dawson gave somewhat different versions of this conversation, they are in agreement that one of the items discussed was her feeling that the women should be getting equal pay with men for doing the same jobs. Then on February 13, Mrs. Gastineau reported for work at the usual time and began her usual job of operating the rip saw. This is principally a two person operation. The saw operator puts the wood into the saw which is taken out and stacked by a person referred as "catcher" or "off-bearer." Gastineau's regular catcher was Bonnie Asbell who, it was known, every few months had to take off work a couple of hours to see a physician . It happened that the morning of February 13 was one of these occasions and sometime between 9 : 30 and 10 she did leave. Following the break that occurred about that time Raymond Shields, the production foreman , approached Gastineau and advised her that he would take over her job as rip saw operator and that she would be the catcher. Gastineau said something at that time about "Nobody is going to take my job from me." According to Shields he then went to Gary Dawson who said that he did not have time to get involved in a problem of this sort. Dawson told Shields to assign Gastineau to the job of a rougher . Shields returned to Gastineau and told her to do the rougher job. She said that she would not unless she got the same pay as the men who did rougher work. Shields then took Gastineau to the office where her termination interview took place . Those present at one time or another were James Dawson, Gary Dawson, and Raymond Shields. Shields was there at first, left for a short time and returned. James Dawson was not there initially. Toward the end of the interview Gary Dawson left to get her check. While there is some dispute in precisely what was said, by whom and at what point in the interview, all parties agree that Gastineau stated that she was refusing to perform the rougher job to which she was assigned because she would not be paid the same as the men doing that work. At sometime dunng the interview her filing sex discrimi- nation charges came up . Gastineau states that upon telling James that she had already filed a sex discrimination charge with the Wage and Hour Division he fired her. James, on the other hand, said she was fired prior to the time she said she had filed such a charge. In any event, the principal matter of discussion was Gastineau's refusal to work because she was not receiving equal pay with the men. James did ask her if she would quit and she replied no. He asked her to sign a statement that she was refusing to do the job which she declined. And he asked her to repeat these statements before a fourth witness which she also refused to do. Thus, on the morning of February 13, 1976, Lois Gastineau refused to perform a job to which she had been assigned. The reason for her refusal was because she did not receive the same pay as the men who were performing this work. As a result, she was taken to the office, interviewed by the principal officers of Respondent operating the plant, and was discharged. B. Issue The principal issue framed by the complaint and answer is whether Lois Gastineau engaged in protected concerted activity and whether such activity was the precipitating cause of her discharge on February 13. In addition, certain statements are alleged to be violations of Section 8(a)(1). C. Analysis 1. Lois Gastineau's discharge Among other things, Section 7 of the Act guarantees to employees the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." And Section 8(a)(1) proscribes any act on the part of an employer which interferes with, restrains, or coerces employees in the exercise of the rights guaran- teed by Section 7. Thus if Gastineau's activity is of the type contemplated by Section 7 and if she was discharged for having engaged in it, then the Company thereby violated Section 8(a)(1). The General Counsel argues that Gastineau and Everitt filed a charge of sex discrimination with the Wage and Hour Division of the Department of Labor and it was for this that she was discharged . Respondent argues that she was discharged for cause because (a) she refused the rougher assignment and (b) she did not get along with Shields. The General Counsel contends that the Company knew that Gastineau had joined with Everitt in filing the charge because she said so just prior to being terminated . Respon- dent says that Gastineau did not make this statement until after she had been fired , although admitting it took place during the termination interview. Without resolving precisely when Gastineau stated that she had filed the equal pay charge, it is clear that she was brought to the office on February 13 for the purpose of being terminated and prior to any company knowledge that she had filed the charge. At least there is no evidence of company knowledge prior to February 13. While I find pretextuous Respondent 's assertion that Gastineau's personal problems with Shields was a factor in her discharge, I likewise find that filing the equal pay 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge was not the cause . Nevertheless, from the total factual situation I conclude that the precipitating cause of her discharge was related to her allegation of sex discrimi- nation, only one aspect of which was filing the charge. Another aspect was Gastineau's refusal to work at a job in which she would be paid less than the men doing the same work. By January 22, the Company knew that sex discrimina- tion charges had been filed by Everitt. On that day James Dawson and Gastineau had discussed this matter. By January 26 Gastineau had complained to Gary Dawson about two or three matters relating to conditions of employment, particularly including the wage differential between men and women. Then on February 13, Gastineau refused a job assign- ment specifically because she would not be earning the same pay as men who performed that work. In fact, men with less seniority than Gastineau were paid 25 cents an hour more than she. Such at least was Gastineau's testimony undenied by the Respondent. Of course whether there was in fact a violation of Title VII is not critical to a determination of this matter. What is material is that Gastineau thought she was being discrimi- nated against because of her sex and the Company knew she thought so. It was in this context that Gastineau's termination interview occurred . There is no question that she was taken by Supervisor Shields to the office because she told him that she refused to do an assigned job unless she was paid the same as the men doing the work. During this interview James did in fact ask her either to resign or to sign a statement to the effect that she was refusing to perform an assigned job. During this interview she did in fact say that she had filed a sex discrimination charge with the Wage and Hour Division after that subject was brought up by James. Whether Gastineau told of having filed the charge prior to being discharged or afterward does not particularly matter. What matters is that Gastineau was discharged because she refused to perform a job assignment. This fact cannot be taken in a vacuum but must be considered in light of a total situation . She refused to perform the rougher job to protest lack of equal pay and the Company's principals knew this. Gastineau's activity in refusing to perform the rougher job was tantamount to a work stoppage in support of a legitimate grievance - lack of equal pay for equal work. Such activity - a work stoppage in support of a grievance concerning conditions of employment - is protected, absent a showing of substantial actual harm to the Company. E.g., Plastilite Corporation, 153 NLRB 180 ( 1965);-American Truck Stop, Inc., 218 NLRB 1038 (1975). It should be noted that Gastineau did not refuse to do her usual ripsaw job, and was always willing to perform it. The refusal to do the rougher job was scarcely harmful to the Company, and I find was protected activity under Section 7 if it is also concerted. The question therefore is whether Gastineau 's rather individual act was as a matter of law concerted . It is my conclusion that it was. Gastineau was attempting to vindicate the rights of women employees of Respondent under Title VII of the Civil Rights Act. Thus, even though she was acting alone at the time that she engaged in the work stoppage, as a matter of law it is concerted activity. This was more than simply an individual concerned with an individual matter . As part of her ongoing determination to seek for all women at the plant equal pay for equal work, Gastineau engaged in a work stoppage for which she was discharged. The Board has held that an individual who protests his employer's noncompliance with a Federal statute "is engaged in concerted activity for the mutual aid and protection of the employer's employees similarly situated." G. V.R. Inc., 201 NLRB 147 (1973). 2. The other 8(axl) violations The General Counsel also alleged interrogation concern- ing employees' protected concerted activity and creation of the impression of surveillance of that activity . The allega- tions of interrogation concern James Dawson's conversa- tion with Gastineau on January 22, when he returned from the unemployment compensation hearing ; and Gary Daw- son's conversation with Gastineau when she told him of certain grievances she had on January 26. The creation of impression of surveillance is alleged to have occurred during the termination interview on February 13. While the statements of James and Gary Dawson may have been "interrogation" in the broadest sense of the word, they contained no threat . There was no real pattern of employer hostility. There was nothing in these state- ments which reasonably could be taken as a determination on the part of the Dawsons to seek information in order to take action against employees. These conversations oc- curred in a casual context . Gastineau was the moving force on January 26. There is no evidence that the alleged "interrogations" inspired fear. Given in these circumstances I conclude that however the conversations are characterized , they were not coercive in light of the surrounding circumstances and were not, therefore, violative of Section 8(axl). Blue Flash Express, Inc., 109 NLRB 591 (1954). To conclude otherwise would be tantamount to concluding that at no time can a representative of management discuss anything related to wages, hours, and other conditions of employment with an employee. Finally, there is simply nothing even in Gastineau's version of the termination interview which would lead to the conclusion that Dawson created the impression of surveillance of employees' protected concerted activities. I therefore will recommend that the complaint be dismissed insofar as it alleges interrogation and creation of the impression of surveillance. CONCLUSIONS OF LAW 1. Dawson Cabinet Company, Inc., is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act by discharging Lois Gastineau on February 13, 1976 , because she had engaged in concerted activity protected by Section 7 of the Act. DAWSON CABINET COMPANY 293 3. Respondent did not violate Section 8(a)(1) by inter- rogation on January 22 and 26, or by creating the impression of surveillance of employees' concerted activity on February 13, 1976. 4. Respondent's unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that Respondent has engaged in the unfair labor practice set forth above, an order will be recommend- ed that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent will be ordered to reinstate Lois Gasti- neau to her former job or, if that job no longer exists, to a substantially equivalent position of employment, and to make her whole for any loss of wages and other benefits she may have suffered as a result of the discrimination against her in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950); and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Based upon the foregoing findings of fact, and conclu- sions of law, the record as a whole and in accordance with Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: i ORDER The Respondent, Dawson Cabinet Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Lois Gastineau immediate and full reinstate- ment to her former job or, if that job 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 in the manner set forth in the section of this Decision entitled "Remedy" (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 documents necessary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its Carterville, Missouri, facility copies of the attached notice marked "Appendix."2 Copies of said notice on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately upon receipt thereof and 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 altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. The complaint in all other respects is hereby dismissed. 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. 2 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 POSED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the right to participate, it has been found that we have engaged in certain conduct in violation of the National Labor Rela- tions Act. In order to remedy that conduct we are posting this notice and we are giving our assurance to employees that we will not interfere with the rights that they have and that they do have the following rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection, and To refrain from any or all these things. WE WILL NOT discharge or in other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer immediate reinstatement to Lois Gastineau to her former job or, if that job no longer exists, to a substantially equivalent job, and make her whole for any loss of wages or other benefits as a result of the discrimination against her plus interest. DAWSON CABINET COMPANY, INC.