Benham Corp.

BENHAM CORPORATION 481 Benham Corporation and United Steelworkers of America, AFL-CIO-CLC. Case 10-CA-21888 24 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 29 December 1986 Administrative Law Judge Lawrence W. Cullen issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. 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 in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions as modified, to modify his remedy,1 and to adopt the recommended Order as modified. The judge found, and we agree, that the Re- spondent violated Section 8(a)(1) and (3) of the Act by discharging employees Merle Griffin and Temple Utter because of their protected concerted activities concerning their wage reduction protests and/or their union activities. We disagree, however, with the judge's finding that Supervisor Dwight King's statement made in the presence of employees constituted an unlawful interrogation. 2 In the third week of June 1986, King was seated in the lunchroom with or near five employees, including Griffin and Utter. King commented aloud that he wondered whether the employees had their union meeting on the prior evening. The union meeting had previously been announced by the Union in its leaflets which were distributed at the Respondent's plant. Utter testified that another employee present, Marie Stover, an- swered that they were supposed to have one, and then King stated, "Well, I guess they did." Grif- fm's testimony mirrored Utter's except that accord- ing to Griffin, no one responded after King made his initial statement concerning the union meeting. The judge made no credibility resolution with regard to this testimony. Contrary to the judge, we find under either version of this incident that this questioning did not constitute an unlawful interro- gation. The standard to determine whether an interroga- tion violates the Act is "whether under all the cir- 1 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), Interest Will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.0 § 6621. 2 The judge's decision does not include a recitation of the facts con- cerning this Alleged interrogation. 284 NLRB No. 64 cumstances the interrogation reasonably tends to restrain, coerce or interfere with the rights guaran- teed by the Act." 3 The setting for King's statement was in the employee lunchroom while King and others were eating their lunches rather than in the production or management office area.4 His in- quiry, which was in the form of a rhetorical ques- tion, was not addressed to any particular employee, and was uttered without any apparent pressure for a response even though an employee may have re- plied. 3 His inquiry sought general information about a well-publicized union meeting as opposed to a specific probing into the number or identity of employees who may have participated in that meet- ing. 6 The whole incident lasted a short time and ended when King innocuously answered his own question. King's statement was unaccompanied by any threats, coercion, promises, or other unfair labor practices. Under the totality of these circum- stances, we fmd that King's statement did not rea- sonably tend to coerce employees. Accordingly, we dismiss this allegation of the complaint. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Benham Corporation, Scottsboro, Ala- bama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied below. 1. Delete paragraph 1(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the attached notice for that of the administrative law judge. 3 Rossmore House, 269 NLRB 1177 (1984), quoting Blue Flash Express, 109 NLRB 591 (1954); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). 4 Cf. Aluminum Technical Extrusions, 274 NLRB 1414, 1420 (1985) (unlawful interrogations at the employees' work stations). 5 Cf. Jones Plumbing Co., 277 NLRB 437 (1985) (unlawful interroga- tion of employee Wysocki); Thriftway Supermarket, 276 NLRB 1450, 1461-1462 (1985) (unlawful mterrogations of employee Hatcher); and Marko Contractors, 275 NLRB 425, 426 (1985) (unlawful interrogation of employee Browning). 6 Cf. Superior Container, 276 NLRB 521, 526-527 (1985) (unlawful in- terrogation of employee Maxwell), Raytheon Co., 279 NLRB 245 (1986) 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. 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting United Steelworkers of America, AFL-CIO-CLC, or any other union, or for engaging in any other concert- ed activities protected under Section 7 of the Act. 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 Merle Griffin and Tempie Utter immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, with interest. WE WILL remove from our files any references to the discharges of Merle Griffin and Tempie Utter and will notify Merle Griffin and Tempie Utter of this and that the discharges will not be used against them in any other manner. BENHAM CORPORATION Gaye Nell Hymon, Esq., for the General Counsel. Townsell G. Marshall Jr., Esq. (Constangy, Brooks & -Smith), for the Respondent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 7 October 1986 in Scottsboro, Alabama, pursuant to a complaint filed by the Regional Director for Region 10 of the National Labor Relations Board (the Board) on 18 August 1986.1 The complaint alleges a violation of Section 8(a)(1) of the National Labor Relations Act (the Act) by an act of interrogation by the Respondent, Benham Corporation's (the Respondent) supervisor and agent Cutting Manager Dwight King on 27 June 1986 concerning their union ac- tivities and violations of Section 8(a)(3) and (1) of the Act by Respondent's discharge of and refusal to reinstate its employees Merle Griffin and Tempie Utter on 11 July 1986 because of their membership and activities on behalf of the United Steelworkers of America, AFL- CIO-CLC (the Union), and because they engaged in concerted activities with other employees for the pur- pose of collective bargaining and other mutual aid and protection. The complaint is based on a charge filed on 15 July 1986, by the Union. The Respondent, by its answer filed on 27 August 1986, has denied the commis- sion of any violations of the Act. After due consideration of the evidence and testimony presented at the hearing including the demeanor of the witnesses and of the briefs filed by the General Counsel and counsel for the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Business of Respondent The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material, an Alabama corporation with an office and place of business located in Scottsboro, Alabama, where it is engaged in the manufacture of athletic wear and during the past cal- endar year immediately preceding the filing of the peti- tion, a representative period, Respondent sold and shipped from its Scottsboro, Alabama facility goods valued in excess of $50,000 directly to customers located outside the State of Alabama, and that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES2 As a manufacturer of knitwear, the Respondent oper- ates several departments including a cutting department with several classifications of employees. In the spring of 1986, the Respondent engaged a consultant to evaluate its operations and classifications of employees including the wage rates accorded to these classifications. The con- sultant reported that the wage rates of the bundler classi- fication in the cutting department were substantially higher than those paid bundlers at other plants. The Re- spondent thereupon, in April 1985, reduced the base wage rate of the four employees in its bundler classifica- tion from $7.50 per hour to $5.15 per hour. Two of the four employees in the bundler classification, Merle Grif- fin, a 34-year employee and Tempie Utter, an 11-year employee protested this wage cut to their supervisors and requested a meeting with Respondent's president, Robert Stranyak, which was arranged within a week of the wage cuts. Stranyak listened to Griffin and Utter, but did not agree to change the decision to reduce the wage rate or make any adjustments. Subsequently, Griffin and Utter made several other attempts through their supervi- sors to meet with Stranyak, but were unsuccessful in se- curing another meeting. In early June, the Union was contacted by Respond- ent's employees concerning union representation and commenced a campaign to represent the employees at the plant. An earlier campaign by the Union in 1985 had been unsuccessful. In the earlier campaign, the Union had issued a leaflet to employees informing them among 2 The following includes a composite of the testimony of the witnesses at the hearing. All dates are in 1986 unless otherwise stated. BENHAM CORPORATION 483 other things that without the Union to represent them, the Respondent could reduce their wages at will. During the course of the subsequent union campaign commenc- ing in June, the Union issued another leaflet dated June 16, pointing out the dramatic wage cuts that had oc- curred in April 1986 in the absence of union representa- tion. A week or two later, Respondent's president, Stran- yak, conducted a meeting of all the employees in the cut- ting department, where he told the employees that there was no need for a union and cited the "bad points" against the Union. During the course of this meeting he also pointed out that the union campaign was the result of the wage cut and told the employees that the only wage reduction had involved the four bundlers as a result of a study of comparable rates of bundlers at other employers. Both Utter and Griffin signed union cards and dis- cussed the Union with other employees and attended the first union meeting in early June; they were the only two bundlers present at the first meeting. They had also en- listed the support of the other two bundlers in their con- tinuing complaint about their wage reduction and had told Respondent's supervisor, King, of this when request- ing him to set up a second meeting with Stranyak. Bundlers assemble various parts of a shirt or garment (i.e., sleeves, backs, pants, collars) to prepare them to go to the sewing department. Bundling is part of the overall cutting process. The overall pay of bundlers is deter- mined by applying incentive rates to certain types of work (i.e., bundling and "fan folds" that are the division of the cut material into parts and backs for the end prod- uct of shirts). Incentive pay is determined by the amount of time it takes to do a particular task as measured against a previously determined standard of time. Earn- ings exceed the base rate of $5.15 to the extent a bundler exceeds the standard (standard allowed hours) for the particular task. All operations performed by the bundlers are on incentive and are referred to as "on the clock" time. Bundlers are also paid on the basis of "clock out time" that consists of "waiting time, time at average, and several other small categories." To the extent that the in- centive work is performed off the clock, it could in- crease the incentive pay because it could incorrectly appear to have decreased the time required to do the work in incentive time, thus increasing the percentage of performance and a corresponding increase in the incen- tive pay, rate. On 10 July near the end of the day at approximately 3:30 p.m. Griffm, who was clocked out, decided to do fan folds to set them up for another employee to make the cut. Although this is incentive work and should be performed on the clock Griffin, who was clocked out, did not clock back in when she did the work that took her a total of 2 minutes. At the time she told her desig- nated working team partner Utter that she was going to do the fan folds. Utter said that she would turn their timesheets in. Shortly thereafter, Supervisor Dwight King asked whether the employees had performed fan folds off the clock. Griffin admitted she had done so and Utter and Griffin indicated they had done so before and contended at the hearing that on occasion other employ- ees had also done so. King said nothing else and the em- ployees left for the day. When the employees returned to work the next morning (11 July) they were called into the conference room and discharged by Cutting Supervi- sor Glenn Reed on the orders of Dwight King for "falsi- fying time" on 10 July as a, result of Griffin's having per- formed the fan folds on off-the-clock or nonincentive time. Cutting Room Manager King testified that while in his office on 10 July, his attention was called to Griffm and Utter by a lead employee who told him Griffin and Utter were acting suspicious and asked whether they were on the clock. King testified he then proceeded to the cuttng room where Griffin and Utter were working and saw "fan folds that had been done." He went back to his office and waited until Griffin and Utter turned in their "green sheet," a daily report showing hours worked and time earned. King then stopped them and asked whether they had performed the fan folds while they were clocked out and they replied that they had, and that they had done it before, and no more was said and Griffin and Utter went home. Later that day, after a management production meeting, King discussed the matter with President Stranya.k, Manufacturing Superintendent Smitty Rogers, and Sewing Superintendent Wayne Jones and a determination was made to discharge Griffm and Utter for falsifying payroll documents. On the front of the employee record cards of Griffin and Utter, King wrote that the employees had been terminated for "falsi- fying payroll documents" and on the back of the cards he wrote that they had been terminated for "improper handling of pay documents." Griffin and Utter subsequently asked to meet with Stranyak on the following Saturday and appealed to him for reinstatement, but the Respondent did not change its decision to terminate them. The Respondent has offered into evidence the files of three employees who were ter- minated in September 1985 for "improper handling of pay documents" because of having held back coupons for work performed to obtain greater earnings. These employees were terminated following an extensive inves- tigation and were called in and asked whether they had anything to add after being presented with the facts prior to their termination. Respondent's junior engineer, Jef- frey A. Patty, testified that the fan fold work performed by Griffin would have increased the pay of Griffin and Utter by $2 on the day in question. Analysis At the outset, I conclude that the inquiry by King constituted an act of interrogation by him as Respond- ent's supervisor concerning whether a union meeting had been held the night before. He was obviously aware of the anticipated union meeting and his inquiry of the em- ployees in the cutting area appears to have been calculat- ed to obtain a reaction from these employees as well as to keep abreast of the union activities. There was no showing that any, employee in this area was an outspo- ken advocate of the Union who had made his or her sup- port for the Union publicly known. Rather, it appears that the inquiry was directed at employees in this depart- ment where Respondent suspected union sentiment had 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD led to the resurgence of the union campaign in June as a result of the wage cuts to the bundlers in April. Under these circumstances, I do not find these comments simi- lar to the inquiry of an open union adherent such as that considered in Rossmore House, 269 NLRB 1176 (1984). Rather, I find they constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. With respect to the discharge of Griffin and Utter, I find that the evidence presented by the General Counsel established a prima facie case of violations of Section 8(a)(3) and (1) of the Act. I find that the evidence dem- onstrates that Respondent discharged Griffin and Utter as a result of their engagement in concerted activity by their protest that was ongoing as a result of the reduc- tion in their wages and by Respondent's perception of Griffin and Utter as instigators or supporters of the union campaign as a response to their reduction in wages by the Respondent. I find that Respondent's animus toward the Union has been demonstrated as a result of the meeting held by Respondent in which Respondent's president, Stranyak, discussed the Union, told the em- ployees a union was not needed, cited "bad points" about a union, and told the employees that the campaign was the result of the wage reduction. It is thus clear that Re- spondent viewed Griffin and Utter and their outspoken criticism of the wage reduction as a cause of the new onset of the Union's campaign. In assessing the alleged infraction of the rules by Grif- fin and Utter's admission that it had occurred in the past, find that the Respondent seized on a pretext in this regard to rid itself of two employees who had voiced displeasure in and protested their reduction in wages, a protected engagement in concerted activity and who had even then been seeking a second meeting with President Stranyak to further discuss the matter and who had en- listed the support of the other two bundlers in their cause and whom Respondent also blamed or considered to have been the cause of the Union's campaign in June. The evidence produced through the testimony of Griffin and Utter was that Griffin had performed a few minutes of on-clock time work during off-clock time by doing fan folds to set up the material for the cutter who was to cut the material. There was no evidence that Utter had perform‘d this work. Moreover, there was no evidence that either Griffin or Utter had actually falsified the time or improperly reported it as contended by Respondent. Moreover, I do not equate the statement by Griffin and Utter that they had performed fan fold work off the clock previously was an admission of anything approach- ing falsification of their time. Nor do I conclude that it was so viewed by Respondent. However, rather than give Griffin or Utter an opportunity to explain their posi- tion, Respondent chose to abruptly discharge them with- out offering them an opportunity to be heard until they had been discharged. I also do not equate Griffin's in- fraction as similar to the September 1985 instances wherein three employees were discharged for holding back coupons in order to increase their earnings. More- over, 'I do find that Respondent's treatment of the three employees in September 1985 was different than that ac- corded Griffm and ,Utter. In the September 1985 incident those matters were carefully investigated, and the Re- spondent's representative met with the employees and asked them if they, had anything to add in view of the tenure of the employees. The matter was reviewed by management prior to the decision to discharge them. However, Griffin and Utter, although both long-term employees with flawless records, were not given an op- portunity to explain their positions in this matter, but were summarily discharged. I thus conclude that the General Counsel has proven a prima facie case of violations of Section 8(a)(3)- and (1) of the Act by Respondent's discharge of Griffin and Utter because of their engagement in protected concert- ed activity in protesting Respondent's reduction of their wages and Respondent's perception of them as being re- sponsible for the onset of the union campaign in June 1986. I was not convinced by Respondent's explanations for its conduct as elicited through the testimony of Stranyak or King regarding the reasons for their dis- charge of Griffin and Utter. I find Respondent seized on the performance of the fan folds by Griffin as a pretext to discharge Griffm and Utter because of their engage- ment in concerted activity, Limestone Apparel Corp., 255 NLRB 722 (1981). I thus find that the Respondent has failed to rebut the prima facie case established by the General Counsel, Wright Line, 251 NLRB 1083 (1980). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practice of Respondent as found in section III, above, in connection with the business of Re- spondent as found in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Benham Corporation, is an em- ployer within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by its interrogation of its employees concerning their union activities and those of their fellow employees. 4. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Merle Griffin and Temple Utter because of their engagement in concerted activities and because of its perception of them as having engaged in union activities. 5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist and take the following affirmative actions, in- cluding the posting of an appropriate notice, designed to effectuate the policies of the Act. I recommend Respondent be ordered to offer Merle Griffin and Tempie Utter full reinstatement to their BENHAM CORPORATION, 485 former positions or their equivalent, if their former posi- tions no longer exist, and make them whole for any loss of earnings or benefits they may have sustained as a result of Respondent's unlawful conduct against them, and to remove any reference to their discharge from its files. The loss of earnings and benefits shall be deter- mined as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). I do not recommend a visita- torial clause, as requested by the General Counsel, in the absence of any showing of special circumstances that would warrant the inclusion of one. See 0. L. Willis, Inc., 278 NLRB 203 fn. 1(1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Benham Corporation, Scottsboro, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their union activities and those of other employees. (b) Discharging its employees for engaging in union and/or other concerted activities. (c) In any like 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 necessary to effectuate the policies of the Act. 3 If no'Cxceptions 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 (a) Offer to Merle Griffin and Tempie Utter immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions with- out prejudice to their seniority or any other rights previ- ously enjoyed. (b) Remove from its files any reference to the unlawful discharge of Merle Griffin and Tempie Utter and notify them in writing of this and that the discharges will not be used against them in any manner. (c) Make Merle Griffin and Tempie Utter 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 recommended remedy. (d) 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. (e) Post at its facility in Scottsboro, Alabama, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4 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 Nation- al 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."