Flexsteel Industries

44 315 NLRB No. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Charging Party has excepted to some of the judge’s credibil- ity findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. No exceptions were filed to the judge’s findings that the Respond- ent solicited grievances and promised to improve the employees’ terms and conditions of employment in violation of Sec. 8(a)(1) of the Act. 2 The judge found that the General Counsel failed to establish a prima facie case that the Respondent discharged employee Patricia Double because of her union activities. Even assuming that the Gen- eral Counsel established a prima facie case of discriminatory dis- charge, we find that the Respondent established that it would have discharged Double even absent her union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 1 The relevant docket entries are as follows: The unfair labor prac- tice charge was filed by United Steelworkers of America, AFL–CIO (the Union) on April 6, 1993, and amended on September 23, 1993. The complaint issued on October 14, 1993, and the hearing was held in Goshen, Indiana, on February 9, 1994. 2 All dates hereinafter refer to 1993, unless otherwise stated. 3 The Board has asserted jurisdiction over Respondent. Flexsteel Industries, 311 NLRB 257 (1993). 4 The union withdrew its objections on February 12, 1993. Id. at fn. 1. 5 The Union won the second election that took place on May 24 and was certified as the collective-bargaining representative on May 28. 6 The unwillingness of Respondent’s witnesses to admit to know- ing of her union activities, in the face of uncontradicted proof of her actions, casts doubt on their credibility. In addition, I have found that the employees generally engaged in horseplay and have discred- ited Respondent’s witnesses who testified to the contrary. To the ex- tent that the General Counsel and particularly the Union attempted to discredit various witnesses because of contrary testimony in an- other proceeding, I have made no finding because the prior testi- mony was never offered. Flexsteel Industries, Inc. and United Steelworkers of America, AFL–CIO–CLC, Upholstery Division. Case 25–CA–22446 September 30, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND DEVANEY On April 19, 1994, Administrative Law Judge Ben- jamin Schlesinger issued the attached decision. The Charging Party-Union filed exceptions and a brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions,2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Flexsteel Industries, Inc., New Paris, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Steve Robles, Esq., for the General Counsel. Arthur D. Rutkowski, Esq. (Bowers, Harrison, Kent & Mil- ler), of Evansville, Indiana, for the Respondent. Chris M. Bolte, Staff Representative, of Jasper, Indiana,for the Charging Party. DECISION FINDINGS OF FACT BENJAMIN SCHLESINGER, Administrative Law Judge. Em- ployee Patricia Double was fired on April 1, 1993, after she threw a seat back at her assistant supervisor, Bev Hiatt, hit- ting her in the face; and then threw a bobbin, hitting her in the shoulder; and then threatened that, if Double had a rock, she would have thrown that at Hiatt, too. The complaint al- leges that the discipline meted out by Respondent Flexsteel Industries, Inc., violated Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. I conclude that it did not and that, even if Double had not been a union sympathizer, Respondent would have imposed the same dis- cipline.1 Jurisdiction is conceded. Respondent is a corporation with an office and place of business in New Paris, Indiana, where it engages in the manufacture, sale, and distribution of rec- reational vehicle equipment and related products. During the 12 months ending April 1, 1993,2 it sold and shipped from its facility to points outside Indiana goods and products val- ued in excess of $50,000 and purchased and received goods valued in excess of $50,000 from points outside Indiana. I conclude, as Respondent admits, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act.3 I also conclude, as Respondent admits, that the United Steelworkers of America, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. Double had been employed by Respondent since May 26, 1982, and had the highest seniority in her department and the second highest in the entire facility. She was not active in an earlier union campaign, which culminated in a Board-con- ducted election on February 28, 1992, which Respondent won and the Union had filed objections to.4 However, she signed a petition for the Union (a new petition was filed with the Regional Office on March 12, 1993) which led to a sec- ond election5 and openly expressed her adherence of the Union, either by speaking in favor of it, wearing a union but- ton, or tacking a button to the top of her machine, all in open hearing or view of Respondent’s supervisors.6 Respondent was well aware of her sympathies. Double was a piece worker and took evident pride in her production which resulted in her being paid double the nor- mal salary. Not only was she doing her job but she was mak- ing a lot of money. And it was because she wanted to keep making a lot of money that she got herself in trouble on 45 FLEXSTEEL INDUSTRIES March 31. She was sewing puckers into seat buckets that are placed on frames in recreational vans. When the pieces were measured properly, they should have been within a quarter of an inch at each end so that any errors could be hidden when Double did her sewing. But when the material was leather, and was more that that amount over length, she could not work with the material. The puckers were too long that afternoon, and she complained to Hiatt, who took all the seats back to other employees to get them cut correctly. When they were returned to Double, they were still too long. She yelled at Hiatt, who was passing by her table her, ‘‘How the hell do you think we’re supposed to believe this has been measured and is correct?’’ Double said that she was frustrated, but her language dem- onstrated more anger than a sense of being discouraged. So did her actions. She flung the piece at Hiatt; and the 5-foot long piece, which was hinged, flopped and hit Hiatt in the face. Double initially testified that the piece ‘‘went across the table at her,’’ an attempt to conceal that she supplied the force that propelled the seat. Hiatt’s complaint to Double that she did not have to throw the seat at her was answered by Double’s picking up a bobbin of thread and throwing it overhand at Hiatt, hitting her in the shoulder. And, proving that her demonstration was not an unintentional tantrum and that she intended to hurt Hiatt, Double said that if she had a rock, she would have thrown it, too, at Hiatt. Respondent terminated Double. The issue is whether it did so because Double engaged in union activities or because she threw objects at and threatened Hiatt. There is no question that Respondent was fully capable of acting against her be- cause of her union activities. The Board found in its prior Decision that Respondent committed numerous violations of the Act in order to discourage its employees’ union support, so there is ample reason to find that Double’s discharge was caused by Respondent’s union animus. On the other hand, no one disputes that Double threw objects at Hiatt and hurt her, maybe not so much, but she would have liked to hurt her more and would have done so had she had a rock at hand. That is serious stuff. Hiatt, although not a supervisor within the meaning of the Act, was nonetheless directing some of the work that Double was dissatisfied with. When Double was asked whether she thought it was proper for employees to throw things at supervisors out of frustration, she made clear that she assaulted Hiatt for the way that she supervised the work of other employees. She answered: ‘‘That’s prob- ably not any more right than supervisors not correcting prob- lems that have been there for a long time and allowing the employees to get frustrated or never to get results. Why is that any righter?’’ Respondent claims that it cannot allow that type of behav- ior to be lightly punished. It had rules that permitted it to discharge Double. They provided, in part: Some actions are totally inappropriate for the work en- vironment because they affect the safety and well-being of all employees or they directly, adversely impact Flexsteel. These actions can lead to immediate dismis- sal. The following list is not meant to be all-inclusive, but it does contain many of the rules we want to be sure you are aware of: A. Insubordination—failure to carry out a reason- able assignment from a supervisor or manager. . . . . I. Threatening, intimidating, coercing, or interfer- ing with fellow associates on the premises at any time. Double committed acts well within the contemplation of a threat or intimidation. Whether she was insubordinate is an- other matter, because there was no order that Double refused to carry out. So the grounds of her punishment might be somewhat overextended, indicating that Respondent was out to get Double rather than administering fair punishment. But assault is severe, and certainly management had a right to put an immediate stop to it. The General Counsel’s principal case is based on disparity of punishment, that other similar or even more severe inci- dents were overlooked or tolerated, but his proof falls short, even though Respondent never fully explained why it did not give similar punishment to some of the other employees. None of the employees who engaged in the incidents relied on by the General Counsel attempted to harm other employ- ees and none attempted to injure a supervisor. That employ- ees engaged in horseplay, often throwing bobbins playfully or to get the attention of others who were wearing personal radios or tape players is dissimilar. That employees threw scrap fabrics, welt cords, paper clips, balls of tape, old gloves, and metal nuts, bolts, and washers and snapped and shot rubber bands, although potentially dangerous, was also playful and not intended to hurt. Other incidents involved employees losing their temper, but no one tried to injure some one else, particularly a supervisor. For example, em- ployee Matt Wagner threw a wrench on the floor and the socket came off and bounced up to the ceiling. Employee Dennis Seffens, who was suspended for 3 days, slammed a pair of scissors on the table, but he did not throw them at his supervisor or another employee. Employee James Kats merely declined to follow an order and engaged in an ‘‘un- safe act’’ that was not aimed at harming anyone. Double, to the contrary, deliberately attempted to hurt her supervisor, and she did. Her acts were not at all playful. In this respect, her conduct was not an act of profanity directed at another employee or at a supervisor, and thus such inci- dents, relied on by the General Counsel, are not relevant to this proceeding. As Tom Morse, Respondent’s plant super- intendent stated: ‘‘Because in my estimation, in the discus- sions with Pat [Double] and Bev [Hiatt], the items were thrown in anger, and the item was thrown by Pat. . . . It was an anger situation unprovoked, really, by the supervisor. And this associate threw these items at her supervisor.’’ As a re- sult, I conclude that the General Counsel has not established a prima facie case of discrimination for union activities that the General Counsel must prove under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transpor- tation Management Corp., 462 U.S. 393 (1983). Even if he did, Wright Line then permits Respondent, in order to avoid liability, to prove that it would have taken the same action that it did, even in the absence of the union activities. Re- spondent did so. I am persuaded that Respondent discharged Double because of her unprovoked violence and would have done so whether Double was a union supporter or not. I con- 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 Respondent’s 10(b) defense has no merit and is also dismissed. The charge was filed within 6 months of the commission of the al- leged unfair labor practice. 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 9 If 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.’’ clude that Respondent did not violate the Act and will rec- ommend that this allegation be dismissed.7 There are two final allegations relating to solicitation of employee complaints and grievances and promises of in- creased benefits and improved terms and conditions of em- ployment. At a meeting of employees in mid-March, Morse announced that the Union had withdrawn its objections to the first election and had filed a petition for a new election. On March 25, at another meeting, Ronnie Nash, Respondent’s general manager, represented that most of the problems that the employees had could be worked out without a union and that the employees did not need the Union. That began a dis- cussion by a number of employees about problems that they had recently encountered. Some complained of applying for vacations and having them approved, only to have that ap- proval being taken away at the last moment. They said that, if there were a union, that would not have happened. Morse believed that the incidents had never happened and stated that, if a vacation had been granted, the supervisor had no right to take it away. The General Counsel does not complain of that conduct, but relies on what happened next, namely, Double’s com- plaint that she had requested a vacation and that Respondent had taken no action on her request, so she assumed that her request had been denied and she went to work. Others agreed that Respondent had failed to act promptly. Morse then stat- ed that, once employees filed their requests for vacations, Respondent would get the paperwork back to the employees in 5 days and asked whether that would solve the problem. The employees agreed that it would. Up to that point, Re- spondent had not handled vacation requests with such dis- patch. In the circumstances of the Union’s filing of a new petition and Respondent’s expression that problems could be worked out without the Union, I conclude that Respondent solicited this grievance and promised to resolve it in order to discourage the employees’ support of the Union, in viola- tion of Section 8(a)(1) of the Act. The unfair labor practices found herein, occurring in con- nection with Respondent’s business, 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 within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices, I shall recommend that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record in this proceeding, including my obser- vation of the demeanor of the witnesses as they testified, and my consideration of the briefs filed by the General Counsel, Respondent, and the Union, and pursuant to the provisions of Section 10(c) of the Act, I issue the following rec- ommended8 ORDER The Respondent, Flexsteel Industries, Inc., New Paris, In- diana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting complaints and grievances from its employ- ees and promising to improve their terms and conditions of employment, including improving its vacation approval pro- cedure, in order to discourage their support of the United Steelworkers of America, AFL–CIO. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Post at its facility in New Paris, Indiana, copies of the attached notice marked ‘‘Appendix.’’9 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit complaints and grievances from our employees and promise to improve their terms and condi- tions of employment, including improving our vacation ap- proval procedure, in order to discourage their support of the United Steelworkers of America, AFL–CIO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. FLEXSTEEL INDUSTRIES, INC.