E. B. Malone Corp.

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The E. B. Malone Corporation, Bassett Bedding Di- vision and Robert Scott Pickens. Case 1-CA- 20752 30 November 1984 DECISION AND ORDER BY-CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 27 June 1984 Administrative Law Judge Robert A thannasi issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief in support of the decision The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record m light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order 3 ORDER The National Labor Relations Board adopts the recommended Order of the admimstrative law judge and orders that the Respondent, The E B Malone Corporation, Bassett Bedding Division, Amherst, New Hampshire, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order, except that the attached notice is sub- stituted for that of the admmistratrire law judge 1 The Respondent has _excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Cif 1951) We have carefully examined the record and find no basis for reversing the findings 2 Chairman Dotson and Member Hunter find It unnecessary to rely on J P Hamer Lumber Co. 241 NLRB 613 (1979), in adopting the judge's decision 3 We will Issue a new notice to conform with the judge s recommend- ed Order 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 ordered us to post and abide by this notice WE WILL NOT discharge, discipline, or otherwise discnmmate against our employees in regard to their hire or tenure of employment or any terms or condition of their employment because they engage in protected concerted activity WE WILL NOT interrogate our employees con- cerning their participation in protected concerted activity WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Robert Pickens and Jerry Rush full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them and Edward Leonard whole for any loss of earnings or benefits they may have suf- fered as a result of their unlawful discharges, plus interest WE WILL expunge from our files any reference to the discharges of Robert Pickens, Edward Leon- ard, and Jerry Rush and notify them in writing that this has been done and that evidence of their un- lawful discharges will not be used as a basis for future personnel actions against them THE E B MALONE CORPORATION, BASSETT BEDDING DIVISION DECISION STATEMENT OF THE CASE ROBERT A GIANNASI, Administrative Law Judge This case was tried on November 28, 1983, in Boston, Massachusetts The complaint alleges that Respondent violated Section 8(a)(1) of the Act by discharging em- ployees Robert Pickens, Edward Leonard, and Jerry Rush for engaging in protected concerted activities, more precisely, for refusing to work overtime in order to protest Respondent's policy regarding employee tele- phone use It also alleges as violative of Section 8(a)(1) the coercive interrogation of employees The Respondent filed an answer denying the substantive allegations of the complaint The General Counsel filed a posttnal brief in support of the complaint The Respondent failed to file a brief On the entire record, including the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT c_ Respondent, a Florida corporation, operates a plant in Amherst, New Hampshire, where it is engaged in the manufacture, sale, and distribution of matresses, box springs, and related products In the course of its oper- ations, Respondent annually receives goods and materials 273 NLRB No 16 B MALONE CORP 79 valued in excess of $50,0004rectly from points located outside the State of New Hampshire and ships products valued in excess of $50,000 directly- to points. outside Of New Hampshire. Accordingly; I find, as Respondent admits„ that it is an employer , engaged_ in commerce within, the meaning of, :Section 2(2), -(6), and (7) of the' , Act. _ THE UNFAIR LABOR PRACTICE ALLEGATIONS A. The Fdcis - - ' • .On February 9,. 1983, the date of the incident which precipitated. this litigation, Respondent employed 10 people, at its Amherst plant. • The supervisory staff. -was composed of Orville Dale Cooney, known as Dale Cooney, and David Cooney. Dale Cooney is the highest official at the Amherst location and he serves as the op- erations manager; he reports to the regional manager of Respondent. David Cooney is his son, his plant, foreman, and served as acting plant superintendent from, about January 10, 1983, until the end of March 1983. Dale's wife, Stella, was the office clerk or secretary. The re- mainder of the work force was composed of six product tion employees- and• one truckdriver. None of Respond-; ent's employees are represented by a union. In January 1983, the 'employees worked a normal workweek-7 a.m. to 3:30--,with a, one-half hour lunch7 -break and two 15-minute breaks. During the first week in • -February, the employees were notified that they would be required to work an extra hour, per day the following week,. beginning .On -Monday, February 7, 1983, because. of an increased workload -Employee Robert Pickens was notified orally by David Cooney of the overtime:sched- ule on Wednesday, February • 2. Employee Edward Leonard Was also similarly notified orally- by David, Cooney 1• On' Monday, February 7, the first day of. the scheduled overtime, the employees did not work overtime because: they were released early due to a snowstorm On Tues-; day,, February 8, Leonard,. who, performed , shipping and receiving work and sometimes drovea truck, was told to stay home because-low production on Monday meant no shipping work. was ,available.,,on Tuesday.. Pickens did work on ,Tuesday 'and he worked the -required overtime until 4-30 p.m. • . • On Friday, February 4,. David Cooney approached Robert Pickens and other employees, eating lunch, in the break area of the plant. He complained that the_ employ- ees were spending too much time in 'the restroom and were talking excessively during' working hours and that, as a result, production had decreased. .None of, the em- ployees responded to his criticism. Dale Cooney testified that employees were ordinarily verbally ad- vised of required oveftime or "extended workweek" schedules 1 week in advance and that, subsequently. a confirming written notice would _be posted on the f-.ployees' bulletin board He' further testified that such a notice was in fact posted during the first week of February Accordingto Dale Cooney, the notice was written and posted .by David Cooney David Cooney did not testify_ in' this proceeding No such notice was pro- vided or submitted in evidence since, according to Cooney. it had' been thrown away or destroyed The only two employees who testified in this proceeding, Pickens and Leonard, stated that they did not see any such notice During the day . on _Tuesday, February 8, David Cooney again approached , ROberl Placer's, and other em- ployees during lunch. He again complained that the ernr: ployees were spending , too much time , in , the _restroom and , talking too much during working, hours One em- ployee tried to joke about Cooney'S_complanit that lights were left on in the restroom, but, Cooney ,cut ,him off by stating that he did not "like,wisecracks." _ -The next day, Wednesday, - February 9, Cooney again approached Pickens and a group_ of env- loyees during. lunch. Cooney told them that they ,cOuld no longer use the-telephone in the ,office , except for emergencies. Pick- ens and another person complained that the , employees had not , abused , the privilege, of, ,using „ the , telephone which was Situated in the plant superintendent's office, and was the only telephone in, the;plant to which the em- ployees had access.: Pickens, also made a remark to the effect that the Respondent was a "Communist compa-,- ny." 2 After Cooney left, the employees _discussed . his ,re-,. marks concerning the use of the telephone ,,and, there were comments that Respondent's policy in this respect was "not fair." During the afternoon break at 2:30 p.m , . Pickens and the same employees who had been present during lunch discussed what they perceived as an unfair change in policy concerning' the' use of the telephone. Pickens said that in view of Respondent's treatment of the employees—complaints during the lunch 'period and a prohibition against the use -Of the telephone—the em- ployees' should "all leave at' the regUlar quitting time." All of' the employees agreed That- they should leave at 3:30 that afternoon. One empleyee, Leonard, told ,Pick- ens that he already had permission to leave early-for'per- sonal reasons The employees returned AO work after the end of the break. At .3:30 the employees all 'left' their work, stations, punched out, and left the'building: 3.As they were leav- ing, Dale Cooney saw them and said, "I thought you guys were working overtime tonight" According to Pickens' testimony, he respbridëd, "Well,- we're not be- cause you're not going tO let us' use the phdne." the'em-- plOyees then left the plant:4 • 2 Respondent's employee handbook—which apparently governs com- panywide operations and is not limited to Respondent's Amherst plant— - provides , that "Employees are not permitted to receive telephone calls or messages during working hours, except in cases of emergency" The handbook is silent with respect to outgoing telephone calls Despite , the- handhook rule, however, there is considerable evidence 'to the effect that the rule was not strictljr followed at' the' Amherst plant prior to'February 9, 1984 Employees were regularly allowed to receive and to make none- mergency personal calls and they did so with permission during 'lunch and breaks Whatever the exact ,nature ,of the rule before February 9, the Respondent clearly meant to enforce the rule more strictly after Febru-_ ary 9 and the ernployees perceived a change in policy' in the use of the. telephone 3 Six employees left the building at the same.time Robert- ert Pickens, Rush, Leonard, Dana Gauthier, Peter Pasquali; e'nd Mark Pickens All. were expected to work until 4 30 pm. with the exception of Leonard. who was given permission to leave early, and Mark Pickens, a new,em- . ploye-e who was not required t6 work overtime A seventh emriloyee, the truckdriver, was also not required to work overtime, but nevertheleXs , re- mained at work to help David Cooney start-a truck , • 4 Pickens' testimony in this, regard was corroborated'by both Leonard, and Cooney himself Leonard testified that, in , response to Cooney's in- , Continued . „ 80 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD -Neither Pickens 'nor any:Other employee indicated that• they would refuse :to work 'overtirrie, on any day' other than February 9, "That" sank* afternbbn, David "Cooney called Several of the "emkloyees at home. According to Pickens' uncontral dieted testimony,-DavidfCOoney talked to Pickens and asked him." about not working dyertnne that evening:- Pickens responded that Respondent . treated the employ-' es 'with. "disrespect" and that they would treat 'Re- spdndent "the'SAine iVay ." Cooney- sirrifily Said, "Thanks a lot, we'll ne'seding you."' Dale Cooney tes-tified that he subsequently had a con- versation with David -COcineY at approximately 4:30 that afternoon: David -inforrried him that he- had si5Oken with some" of the employees bYttelephone and had been - töld that. the'employees'"had nieeting-at the break time and because of the use of the .telephOne they de-cided theY'd- leave -af. 3:30." • ' "' The next day, February 10, several of the employees arrived at the Odin at the usual Starting tune -prepared to sa to work. •Wherii'Pickens •-came into the plant, David" CooneY , asked' him what' he.•was "doing here.''' Pickens. said he "came _fo work." According 'td Pickens, the re--. maindei of the converSatioroVerit as follows: - 4- • - : And he said,'. '.'You don't work here any more.",, Ty- And Ir said, !,`You didn't tell me that last night.," • And he goes, "Well, you're fired." 'And'! said, "For. - what reason?"., And he _says, 'No, reason." 0I " ."Pretty 'good,. Dave, there's no reason to fire me." And then his father, Dale Cooney, came around the corner and said, "Get out of here. you don !t work, --there any 'more." And I said, "Well, ..why was I fired?'!. And he, goes, !Tor a unionized meeting.", And I said, "Okay, I'll be back to pick my check up - on Friday." -And I left 'And . !, think because- I, left I might have ,:.mtittered an. 'obscenity -under ,-my breath.5 , Employees Edward Leonard:, and ,.:Jerry Rush arrived at, he .piant about 7 ,a m._ on,February 10 When they ap- proached the timecard rack they , .nOticed that their, time-, cards were missing. David Cooney then approached' them and asked them to ,come to his father Dale's office. - All thiee men .Vent to :rhe office-where they diet with Dale Cooney. ,Dale Cooney asked Rush if he -participat- ed in a "little meeting." Rush said, "I talked to -Scott. Pickens, if that's" *hat you mean." Dale Codney then', asked Leonard the sarne question. Lednard replied, that. he did, not, but that Pickens had asked him to ,leave at 3:30 .:p.m. - with the other employees and that'-he told • Pickens- that he already had permissionto leaVe at 330', , p,m. Dale- Coeney Ihen again asked ' if he ha. d )particirtat- J• quiry Conceiiing the "erinplOYee; working overtime', Pickens' responded, because you won't let' td use the phone" And Cooney 'admitted that' Pickent advised him that the employees Were leaving at 3 30'p m because "[Thu cannot make us work overtime and you will not let us use the telephone" • ' • " "•• ' -.5 Dale Cooney'demed That he 'mentioried anything to Plekens about a' "unionized meeting" He testified that, on • seeing' Pickens that' morning, • he informed_ Pickens that' , he was "no longer 'employed there" and told hint to le'aVe' Pickers asked for an explanatidii but Coney refused to give luni one ed in, the' meeting and • Leonard simply said, "No."- Dale Cdoney then 'said, "You're both terminated- for 'partici- pting in an illegal meeting." The above 'accounts of what transpired on February 10 are baSed on the -credited' testimony of Leonard and Pickens who -impressed me'aS. dandid and reliable wit- nesses. Dale Cooney's account of the conversations did not include the reference to meetings held by the em- ployees the day before. Cooney also denied that Leonard mentioned that he had permission ,to leave early the day before According to Cooney, he simply asked Leonard, and Rush if they knew they were supposed to work until 430 p.m. and when they said they did, he fired them. He' did 'admit, ho‘Vever,j- that Rush attempted to interject "something" about the telephone and I informed hurl that I did 'not want to discuss the telephone." The accounts of-Pickens and Leonard are more plausible. First of 'all,- Pickens testified that Dale Cooney had mentioned par- ticipation' nil a "unionized meeting" as the reason-for his discharge.' That testunony is thus/ compatible with that of Leonard_ that Cooney was concerned with the' meeting itself.- In contrast; Cooney's testimony conceining the' Subject of me&tingS'Was contradictory and thus unreli L • able. He originally 'testified that he became aware of the employee meeting , concerning telephone privileges 'on the afternoon of February 9, after being so informed by his' son David, who had learned of the meeting during.' his postwalkout telephone conVeratiods with employees.. Subsequently, however, Cooney 'testified that he '-'could not have -possibly Mentioned 'a "Meeting- in 'his -February 10 conversations with Pickens, - .Leonard, and Rush, be-' cal*, at-that juncture, he was unaware of the employees having- had any meeting..Secondl Dale Cooney's denial-. that' any mention was made' in this meeting by' Lednard that he had permission to leave early is implausible. It isi uncontested that David Cooney did indeed grant ,L'eon- ard permission to • -leave early. Aceording to Dale Cooney.; he' 'wasfirst notified of'--this 'fact sometime 'in' March when an investigator Mr the State unemployment cOmpensatidn commiSsion called , EMI with ,this informa- tion. He 'then eheek'ed v",,ith his son, David tooney,- fled that' Leona-rd 'had permission . to leave early and, on March 9, -1983; 'offered Leonard . reinstatement.' It is in- conceivable to me that the Cdoneys wbuld not have known about Leonard having had permission. to leave• early or that Leonard-2-with his job on the line=wOuld haVe failed to Mentioned , it during the discharge 'inter- view. I find it More: likely that-Leonard did mention the fact, as he 'testified. 'For these 'reasons, I . find , Leonard's' version of the- February 10 'meeting more credible than Dal& Cooney's version and .I also find credible Pickens' testimony that Dale Cooney` "mentioned a "unionized meeting" in their conversation on the same day. •1 , B. Discussion and Analysis . Respondent admits that it discharged, employees,Pick- ens; Leonard, and Rush because they walked out at 3:30 p.m on February 9 - and refused- to work overtime On that' day 6 The- remarks of Dale Co-oney to the ferminat-.., G'1.11 its answei, Resjpondent states as follows - • Continued E B MALONE CORP 81 ed employees on February lb confirms not only the reason for the discharges, but also Respondent's concern over the employees' walking out and the meeting that preceded it. It is clear that the walkout, instigated by Pickens, was based on his and other employees' concern at Respondent's change in policy regarding the use of the telephone. This was a working condition and a legiti- mate concern of the employees. They discussed the problem, decided in concert to withhold their labor, -and walked out together in protest over the matter. The em- ployees' action was thus a traditional concerted protect- ed activity under Section 7 of the Act and their dis- charge for such activity is violative of the Act. See NLRB v. Washington Aluminum Co., 370 U S. 9 (1962), Audio Systems, 239 NLRB 1316 (1979); J. P. Hamer Lumber Co., 241 NLRB 613 (1979) 7 Although protests involving full-scale strikes—a com- plete withholding of services—are undeniably protected, it is clear that a single concerted refusal to work over- time, in protest of a condition of employment, is also protected by the Act. See Hamer, 241 NLRB at 619, Gulf- Wandes Corp., 233 NLRB 772, 776 (1977); Polytech Inc., 195 NLRB 695 (1972). As the Board stated in Poly- tech, 195 NLRB at 695: [There is] a presumption that a single concerted re- fusal to work overtime is a protected strike activity; and that such presumption should be deemed rebut- , ted when and only when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action which is inconsistent ,with a gen- uine strike or genuine performance by employees of the work normally expected of them by • the em- . ployer. The evidence herein shows that the employees' protest was a single concerted refusal to work overtime and it was not a part of a plan of intermittent action. The em- ployees had worked overtime the day before They ex- pressed no intent to continue to refuse to work overtime after February 9. And they reported for work at the usual time the next day. Respondent failed to establish that the employees had embarked on a plan of intermit- tent action Respondent did not even attempt to find out about whether there would be any other disruptions In Respondent's view, one refusal was enough to cause the discharge. Indeed, Cooney seemed as interested in the [The reason for the discharge of the three employees is that, con- trary to company policy and the best interest of their employer and, after previously agreeing to work additional time on February 9, 1983, they left their work stations without cause or provocation 7 It is clear, under the above authorities, that the protection of the Act does not turn on the reasonableness of the demand, whether there was advance notice to the employer of the walkout, or whether prior demand had been made for a change in the working condition protested In this case, however, the Respondent was well aware, prior to the discharges, that the employees objected to the Respondent's telephone policy and that the walkout was a protest of that policy Pickens mentioned this con- cern to Dale Cooney as he was walking out David Cooney learned of this concern when he talked to several employees on the telephone after they walked out and arrived at their homes and he relayed the informa- tion to his father And Dale Cooney admittedly cut off Jerry Rush during the February 10 meeting when Rush tried to object to the tele- phone policy being "unfair" Dale Cooney testified that he said, "I do not want to discuss the telephone at all fact that the employees had a meeting—the essence :of concerted activity—as in the walkout itself. In these cir- cumstances, the evidence clearly supports a finding of a violation.8 , -According to the credited testimony of employee Leonard, Dale Cooney repeatedly interrogated both him and employee. Rush about whether they participated "in a little meeting." Cooney elicited from each the fact that they had participated in a meeting with Pickens where the employees talked about walking out in protest of working conditions. Of course, the meeting of employ- ees, on their own time, to discuss working conditions and the possibility of-engaging in protected activity is itself protected concerted activity. Such inquiries were made in a coercive setting in the office of a high management official in circumstances where discharge was imminent. There was no lawful purpose for the questioning—which clearly delved into matters protected under the Act— and there were no assurances given against reprisals. Indeed, reprisals were in fact taken because employees -.engaged in prOtected activites. In these, circumstances, the interrogation vy.as violative of Section 8(a)(1) of the Act CONCLUSIONS OF LAW " - • 1 By discharging employees Robert Pickens, , Edward, 'Leonard, and Jerry Rush for engaging in concerted pro, tected activities, Respondent violated Section 8(a)(1) of the Act 9 , 2 'By interrogating Edward Leonard and -Jerry Rush as to whether they participated in concerted protected activities, Respondent violated SectiOn 8(a)(1) of the Act. 3.- The above violations constitute unfair labor. prances which affect interstate commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from the unfair labor practices found herein. Having found that Respondent unlawfully terminated employees Pickens, Leonard, and Rush, I shall recommend that it be ordered to offer employees Pickens and Rush full re- instatement to .their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and employee Leonard whole for any loss of earnings they may have suffered because of Re- spondent's unlawful conduct 10 The amounts due to the 8 Even though employee Leonard may have left early because he had permission to do so. Respondent's discharge of him with the others was also unlawful because it believed he too was engaged in protected con- certed activity See Audio Systems, 239 NLRB at 1319 fn 9, and cases there cited 9 Employees Gauthier and Pasquall were also terminated apparently as a result of the walkout of February 9 The orginal charge filed by Pick- ens alleged five discriminatory firings However, the complaint alleged violations only as to the discharge of Pickens, Rush, and Leonard '° I do not order the reinstatement of Leonard since he was offered and declined reinstatement The General Counsel does not request that he be ordered reinstated, but simply asks for backpay for Leonard for the period from February 10 to March 9, 1983 I do order the reinstatement Continued 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees shall be computed as provided in E W. Wool- worth Co., 90'NLRB 289 (1950), with interest as,provid- ed in Florida Steel Corp., 231 NLRB 651 (1977)." On these findings of fact and conclusions of law and on the entire record,- I issue the following recommend- ed" . ORDER The 'Respondent, E. B Malone Corporation, .Bassett Bedding Division, Amherst, New Hampshire, its officers, agents, successors, and assigns, shall - I Cease and desist from (a) Discharging; disciplining, or otherwise' disCrimindt- ing against employees in iegard to théir hirè or tenure of employment or any term or condition thereof because they engage in protected concerted 'activity' within the meaning of Section 7 of the Act. '(b) Interrogating employees concerning their participa- tion in coneerted protected activity. (c) In any Eke or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act (a) Offer to employees Robert Pickens and Jerry Rush immediate and full reinstatement-to their former jobs or, if-those jobs no longer exist, to substantially equivalent of Rush even though he was rehired in June 1983 because the evidence 'shows that he was rehired at a lower wage th 'an . he was receiving at the time of his termination and he was apparently treated as a new employee " See generally Isis Plumbing Co, 138 NLRB 716 (1962) " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, .and recommended 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 pur- poses positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the, manner set forth in the remedy section of the deci- sion. (b) Remove from its files any reference to the unlawful discharges of Robert Pickens, Edward Leonard, and Jerry Rusch and notify them in writing that this has been done :and that their discharges will not be used against them in any way. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Amherst, New Hampshire, copies of the attached notice marked "Ap- pendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 1, 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 including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. - (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. " If this Order is enforced by a Judgment (if a United States Court of Appeals, the words in the nonce reading "Posted by Order of the Na- tional Labor Relations Board- shall read "Posted Pursuant to a Judgment of the' United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 7