Fuhr Glass and Mirror

1 305 NLRB No. 1 FUHR GLASS & MIRROR 1 The General Counsel has moved to strike portions of the Re- spondent’s exceptions because the Respondent attached documents and made assertions that were outside the record. We deny the Gen- eral Counsel’s motion. We have not, however, considered any evi- dence that was not made part of the record in this case. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. 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. 3 The judge omitted from the recommended Order cease-and-desist language with respect to the discharge. We shall correct the error. Fuhr Glass and Mirror, Inc./Quality Erection and Glaziers, Architectural, Metal & Glass Work- ers Local Union 1778, affiliated with Inter- national Brotherhood of Painters and Allied Trades, AFL–CIO. Case 16–CA–14724 September 30, 1991 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On April 29, 1991, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respond- ent filed exceptions. 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 exceptions1 and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Fuhr Glass and Mirror, Inc./Quality Erection, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and reletter the subsequent paragraphs. ‘‘(a) Discharging or otherwise discriminating against employees for engaging in union or other protected ac- tivities.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT discharge or otherwise discriminate against employees for supporting Glaziers, Architec- tural, Metal & Glass Workers Local Union 1778, affili- ated with International Brotherhood of Painters and Al- lied Trades, AFL–CIO or any other union. WE WILL NOT threaten employees with closing our business or other adverse action in order to discourage union activities. WE WILL NOT interrogate our employees concerning their union beliefs or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Richard Willy immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits re- sulting from his discharge, less any net interim earn- ing, plus interest. WE WILL expunge from our files any and all ref- erence to the discharge of Richard Willy and notify him in writing that this has been done and that the fact of his discharge will not be used against him in any future personnel actions. FUHR GLASS AND MIRROR, INC./QUAL- ITY ERECTION 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Unless otherwise stated, all dates refer to 1990. 2 There is no contention, nor sufficient evidence to support the contention, that Willy was a statutory supervisor. Tamara J. Gant, Esq., for the General Counsel. Dale Fuhr, pro se, of Houston, Texas, for the Respondent. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Houston, Texas, on February 12, 1991. On August 30, 1990,1 Glaziers, Architectural, Metal & Glass Workers Local Union 1178, affiliated with International Brotherhood of Painters and Allied Trades, AFL–CIO (the Union) filed the original charge alleging that Fuhr Glass and Mirror, Inc./Quality Erection (Respondent) committed certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act (29 U.S.C. § 151, the Act). On October 3, the Regional Director for Region 16 of the National Labor Rela- tions Board issued a complaint and notice of hearing against Respondent, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Richard Willy because of his support for or activities on behalf of the Union. Further, the complaint alleges that Respondent en- gaged in independent violations of Section 8(a)(1) of the Act, by interrogating employees and threatening employees that they would be discharged for their union activities. Respond- ent filed a timely answer to the complaint, denying all wrongdoing. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire record, from my observation of the demeanor of the witnesses, and having considered the briefs submitted by the parties, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Texas corporation, with an office and place of business in Houston, Texas, where it is engaged in the installation of glass and architectural aluminum. During the 12 months prior to issuance of the complaint, Respondent purchased and received goods and materials valued in excess of $50,000 from other enterprises located within the State of Texas, each of which other enterprises received the goods and materials directly from points outside Texas. Accord- ingly, Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties stipulated and I find that at all times material the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Richard Willy began working for Respondent on January 11. Willy began work as a glazier but later was promoted to a working foreman.2 In June, Willy met with James Reid, a business representative of the Union, to discuss rejoining the Union. Reid explained the monetary obligations that Willy, a former member, would have to meet for reinstatement. Reid suggested that Willy could avoid the reinstatement fee by organizing the employees of Respondent. Willy answered that he would consider doing so. After discussing organization with his fellow employees, Willy returned to Reid in July and obtained union authoriza- tion cards. Willy passed out the cards to his fellow employ- ees in the company parking lot. Willy was the only employee soliciting union authorization cards. On August 9, Willy was sent to Respondent’s jobsite at the Williams Trace Baptist Church. Willy had previously worked at this site on an intermittent basis. Willy attempted to install ‘‘panic hardware’’ on certain aluminum doors fol- lowing the written instructions which came with the hard- ware. Willy incorrectly drilled holes in both doors instead of drilling a hole in only one door for the lock cylinder. Willy reported his error to Dale Fuhr, Respondent’s president. Fuhr was angry and told Willy that the employee’s lack of famili- arity with panic hardware was no excuse. Fuhr stated that it was common sense that only one door received a hole for a lock cylinder. These doors had two other holes drilled in error, before Willy made his mistake. On August 23 while at Respondent’s offices, Willy ap- proached Fuhr in Fuhr’s office and asked if the doors at the Williams Trace job had been repaired. Willy testified that he again apologized for his mistake and said he would never make such a mistake again. According to Willy, Fuhr agreed and then asked Willy, ‘‘Well, what do you think about the Union?’’ Willy hesitated, and Fuhr stated that he had been a union member in Florida and didn’t have a high opinion of the Union or its members. Willy responded that he had learned a lot in his union apprenticeship program. Fuhr called Allan Hammond, Willy’s work partner, into the office. Fuhr complimented the two men on their work and the em- ployees went back to work. Reid testified that on the morning of August 30, Fuhr called him and asked whether Reid was attempting to orga- nize his shop. Reid replied that he was. Fuhr complained that he was already having problems being competitive and that he could not remain competitive as a union shop. Fuhr said he saw no advantage in being a union shop and that before he would let the Union tell him how to run the shop, he would shut it down. He said he could subcontract out all the work and make more money that way. Fuhr stated that he knew Willy was behind the union drive because Willy want- ed to get back into the Union. Reid suggested that Fuhr call an attorney because the employees had rights and that Fuhr was making illegal threats. Fuhr replied that the conversation was not being taped and that Reid could not prove anything. After this conversation, Reid sent a telegram to Fuhr, ad- vising Fuhr that the Union was filing a representation peti- tion that date with the Board. Further, Reid referenced their telephone conversation of earlier that morning and stated that the law prohibited plant closure in retaliation for union ac- tivities. Fuhr did not accept the telegram. When advised that Fuhr would not accept the telegram, Reid sent the message that same date by regular mail. Fuhr denied having any conversation with Reid. He con- tended that, based on past differences, Reid had a vendetta against him. Further, Fuhr contended that a note attached to an October letter established that he and Reid had not talked. 3 FUHR GLASS & MIRROR I credit Reid’s testimony over Fuhr’s denials. Based on de- meanor, Reid was a more impressive witness than Fuhr. Fur- ther, I believe the telegram and letter sent on August 30 cor- roborates Reid’s testimony. It seems unlikely that Reid would send those documents if no such conversation took place. Further, Fuhr never called or wrote Reid disputing the allegations of the letter. Fuhr exhibited animus at the hearing towards Reed and his local union. I credit Reid’s explanation that the October note indicating that Fuhr had not returned his phone calls referred to later calls and not Fuhr’s call to Reid on August 30. I find no merit to Respondent’s assertion that Reed coached or attempted to coach Willy while the em- ployee was on the witness stand. Both Willy and Reid denied the allegation and I did not observe any such conduct by ei- ther Willy or Reid. After, his conversation with Reid on the morning of Au- gust 30, Fuhr spoke with Dennis Blackwell, Respondent’s supervisor, and told Blackwell that he intended to fire Willy. Blackwell and Fuhr agreed that Willy should be fired for his inability to get along with fellow employees and because of mistakes at the Williams Trace job and a job at Rice Univer- sity. Fuhr had a final paycheck drawn for Willy. The pay- check stated that Willy was discharged for ‘‘not getting along with other employees and misfabricating material.’’ Fuhr and Blackwell then went to the jobsite to discharge Willy. Fuhr told Willy in Blackwell’s presence that he was letting Willy go and that there were rumors. Fuhr did not explain what he meant by rumors but said he was discharging Willy because he could not get along with the men and because of the mistakes at the Williams Trace job. Fuhr left to speak with the general contractor’s superintendent. Willy told Blackwell that he did not feel it was normal for an employee to be fired for one mistake. Blackwell stated that Willy was being fired for ‘‘rumors’’ and the mistakes at the Williams Trace job. Willy went to ask Fuhr to keep him on as a glazier and found Fuhr in a breezeway on the jobsite. After Willy asked Fuhr to keep him on, Fuhr stated, ‘‘Willy, the rumor is that you are trying to shove the Union down my throat.’’ Fuhr said he would deny the conversation ‘‘on a stack of bibles four feet high.’’ Fuhr said that before he would let the Union tell him who to hire and fire, he would close his shop and earn more money working for another company. Fuhr com- plained about some union employees on a job he had going out of town and stated that he was being sued because of the poor work of these union employees. Fuhr said he did not want people like that working for him and that Willy could not stay on as a glazier. Fuhr denied this conversation with Willy. I credit the testi- mony of Willy over that of Fuhr based on demeanor. Further, Fuhr exhibited animus against the Union and Reid. Willy ap- peared credible and, where possible, was corroborated by Allan Hammond who appeared to be a credible witness. Respondent contends that Willy was discharged for not getting along with his fellow workers and for misfabricating materials on the Williams Trace and Rice University jobs. I credit the testimony of Blackwell and employee Michael De- ment that Willy got into arguments with the ironworkers on a job at the University of Houston in June and July. On July 27, Dement complained to Fuhr that Willy had been abusive to him and that Dement did not want to work with Willy. Fuhr told Dement that he did not have to worry, that Willy would be sent to another job. The next day, Willy was sent to the Rice University job. On the Rice University job Willy made a mistake on a window measurement. Due to time pressures, the window was accepted, even with Willy’s mistake. The General Coun- sel contends that Respondent’s reliance on this mistake is pretextual. I find otherwise. Willy made a mistake for which Respondent could reasonably hold him responsible. However, Respondent does not contend that Willy would have been discharged for this error, but rather that the accumulation of three offenses in such a short period of time resulted in dis- charge. The three offenses were the inability to get along with others on the University of Houston job, the holes drilled on the door on the Williams Trace job, and the win- dow at the Rice University job. Further, in its defense, Respondent offered unrebutted evi- dence that it has had collective-bargaining agreements with various unions and has had good working relationships with those unions. I find that evidence unpersuasive in light of Fuhr’s animus towards Reid and Reid’s Union. B. Conclusions The credible evidence establishes that Fuhr told Willy, on the day of Willy’s discharge, that he would close his busi- ness rather than let the Union tell him how to do business. Fuhr said he would not let Willy shove the Union down his throat. He told Willy of problems that he had with union em- ployees and said he did not want people like that working for him. Under the facts of this case, I find the Fuhr’s state- ments to Willy admit that Respondent took punitive action against Willy to keep from ‘‘going Union.’’ These statements threaten that Respondent will take punitive action against its employees to avoid unionization. Such conduct restrains and coerces employees in the exercise of the right to select a bar- gaining representative of their own choice. See Winges Co., 263 NLRB 152 (1982); A & A Ornamental Iron, 259 NLRB 1019 (1982). See also San Souci Restaurant, 235 NLRB 604 (1978); Bell Burglar Alarms, 245 NLRB 990 (1979). On August 23, Fuhr questioned Willy about the Union. Fuhr stated his negative opinion of the Union after Willy hesitated in answering. In the context of contemporaneous unfair labor practices, I conclude that Fuhr’s questioning of Willy had a reasonable tendency to restrain, coerce, or inter- fere with the rights of employess in violation of Section 8(a)(1) of the Act. See Rossmore House, 269 NLRB 1176 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985); Sunnyvale Med- ical Clinic, 277 NLRB 1217 (1985); Camvac International, 288 NLRB 816, 819 (1988). In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1989), the Board announced the following causation test in all cases al- leging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, the General Counsel must make a prima facie showing sufficient to sup- port the inference that protected conduct was a ‘‘motivating factor’’ in the employer’s decision. Upon such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The United States Supreme Court ap- proved and adopted the Board’s Wright Line test in NLRB 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Of course, it is true, as Respondent points out, that Fuhr did not weed out all the Union’s adherents. But a discriminatory motivation, once established, is not disproved thereby. Certainly, it is not dis- proved in an instance such as this, where Respondent rid itself of the leading union adherent. Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964); NLRB v. Challenge-Cook Bros. of Ohio, 374 F.2d 147, 151–152 (6th Cir. 1967). 4 All motions inconsistent with this recommended Order are de- nied. 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. v. Transportation Management Corp., 462 U.S. 393, 399– 403 (1983). For the following reasons, I find that General Counsel has made a prima facie showing that Respondent was motivated by unlawful considerations in discharging Willy. First, Fuhr, on the morning of the discharge, told Reid that he would close his business rather than become a union shop. Fuhr told Reid that he knew Willy was behind the Union’s organi- zational drive. Shortly thereafter, Fuhr discharged Willy making reference to ‘‘rumors.’’ Second, when Willy sought to have Fuhr reconsider the discharge decision, Fuhr stated that there were rumors that Willy was trying to force the Union down Fuhr’s throat. Fuhr threatened to close the busi- ness rather than let it be unionized. Finally, Fuhr stated his dissatisfaction with some union employees and implied that he would not have union employees working for him. Based on Fuhr’s statements and conduct, Willy could only conclude that his discharge was based on efforts to organize on behalf of the Union. The threats made to Reid and Willy are strong evidence that the employee’s union activities had caused Willy to be discharged.3 The timing of the discharge in rela- tion to Fuhr’s conversation with Reid, Fuhr’s animus against Reid, Fuhr’s animus against this Union, and Fuhr’s contem- poraneous unlawful statements provide the necessary ele- ments to establish a convincing prima facie case. The burden shifts to Respondent to establish that the same action would have taken place in the absence of Willy’s union activities. The evidence convinces me that there is some merit to Respondent’s stated grounds for the discharge. As stated earlier, Respondent does not contend that any one factor supports the discharge. Rather Respondent contends that it was an accumulation of events starting in July that led to the discharge. Willy had been responsible for mistakes on the Williams Trace and Rice University jobs. Further, he was removed from the Houston University job because of prob- lems getting along with other workers on that job. However, it does not follow that Respondent has met its burden under Wright Line. An employer cannot carry its Wright Line burden simply by showing that it had a legitimate reason for the action, but must ‘‘persuade’’ that the action would have taken place even absent the protected conduct ‘‘by a preponderance of the evidence.’’ Centre Property Management, 277 NLRB 1376 (1985); Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). I find that the strong prima facie case is not rebutted by the evidence that lawful reasons for discharge also existed. Respondent must show that Willy would have been dis- charged for these reasons even if he had not engaged in union activities. This Respondent has been unable to do. The evidence of Fuhr’s threats and admissions on the morning of the discharge overwhelms Respondent’s evidence. Accord- ingly, I find that the termination of Willy was motivated by Willy’s protected union activities and that Respondent has not established that it would have discharged Willy absent that protected conduct. Thus, I find that Respondent has failed to carry its burden under Wright Line and that the dis- charge of Willy violated Section 8(a)(3) and (1) of the Act. See Bronco Wine Co., 256 NLRB 53 (1981); Hunter Doug- las, Inc., 277 NLRB 1179 (1985). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees and threatening employees that they would be retaliated against for engaging in union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Richard Willy because of his activities on behalf of the Union, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The above unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. I shall recommend that Respondent offer Richard Willy full and immediate reinstatement to the position he would have held, but for his unlawful discharge. Further, Respond- ent shall be directed to make Richard Willy whole for any and all loss of earnings and other rights, benefits, and privi- leges of employment he may have suffered by reason of Re- spondent’s discrimination against him, with interest. Backpay shall be computed in the manner set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987); see also Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139 NLRB 716 (1962). Respondent shall also be required to expunge any and all references to its unlawful discharge of Willy from its files and notify Willy in writing that this has been done and that the unlawful discharge will not be the basis for any adverse action against him in the future. Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Fuhr Glass and Mirror, Inc./Quality Erec- tion, Houston, Texas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with closing its business or other retaliation for engaging in union activities. 5 FUHR GLASS & MIRROR 5 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.’’ (b) Interrogating employees concerning their union beliefs or union activities. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer immediate employment to Richard Willy to the position he would have held, but for his unlawful discharge. (b) Make whole Richard Willy for any and all losses in- curred as a result of Respondent’s unlawful discharge of him, with interest, as provided in the remedy section of this deci- sion. (c) Remove from its files any and all references to the dis- charge of Richard Willy and notify him in writing that this has been done and that Respondent’s discharge of him will not be used against him in any future personnel actions. (d) Post at Houston, Texas facilities copies of the attached notice marked ‘‘Appendix.’’5 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.