Quality Pallet Systems, Inc.

1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Quality Pallet Systems, Inc. and James Brooks, Lonzy Gates, and Frederick Bronner. Cases 10- CA-22261-1, 10-CA-22261-2, and 10-CA- 22261-3 16 February 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On 1 June 1987 Administrative Law Judge Law- rence W. Cullen issued the attached decision. The Respondent filed exceptions and a 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,2 and conclusions,3 to modify the remedy,4 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Quality Pallet Systems, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has requested oral argument The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties 2 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 We agree with the judge's conclusion that on 14 January 1987 the Respondent discharged the alleged discriminatees Respondent's owner, Irby, during a discussion with the employees about the reduction in the piece rate, instructed the employees to "hit the clock " Clearly, Irby in- tended to fire the employees and did so The employees were not given an option of returning to work and accepting the reduced piece rate amounts or of being fired Thus, this case is distinguishable from Carriage Ford, 272 NLRB 318 (1984), enfd sub nom Morrison v NLRB, 772 F 2d 283 (6th Cir 1985), relied on by the Respondent There, inasmuch as the employees were given an option to either abide by certain work rules or leave, the Board concluded that the employees who left had voluntarily quit 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) W. Gene Heard, Esq., for the General Counsel. Harold A Miller III, Esq., of Decatur, Georgia, for the Respondent. DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge. This case was heard before me at Atlanta, Georgia, on 25-26 March 1987,1 pursuant to a consolidated complaint filed by the Regional Director for Region 10, of the Na- tional Labor Relations Board on 23 February 1987. The complaint alleges that about 14 January 1987, Quality Pallet Systems, Inc. (the Respondent) violated Section 8(a)(1) of the National Labor Relations Act by its dis- charge of its employees, James Brooks, Lonzy Gates, and Frederick Bronner, because of their engagement in concerted activities. The complaint is joined by the Re- spondent's answer, as amended at the hearing, in which Respondent denies the commission of the alleged viola- tions of the Act and contends that the aforementioned employees voluntarily quit their employment and were not discharged for engaging in protected activities and in the alternative that if the employees are found to have been discharged by Respondent, such discharges were for good cause. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs of the parties, I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material, a Georgia corporation with an office and place of business located at Atlanta, Georgia, where it is engaged in the business of repairing and manufacturing wooden pallets, that during the past calendar year prior to the filing of the complaint, Respondent derived gross revenues in excess of $500,000, and, during the same period of time, provided services valued in excess of $50,000 within the State of Georgia to Clorox Company, that Clorox Com- pany is a Delaware corporation with an office and place of business in Forest Park, Georgia, where it is engaged in the business of manufacturing household cleaning products, that during the past calendar year prior to the filing of the complaint, Clorox Company has sold and shipped from its Forest Park, Georgia facility products valued in excess of $50,000 directly to customers located outside the State of Georgia, 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 ALLEGED UNFAIR LABOR PRACTICES Brooks, Gates, and Bronner were all employed as pallet makers by Respondent at its facility in Atlanta, Georgia. On Friday, 9 January, the alleged discrimina- tees and several other employees received their pay- checks that reflected a reduction in pay. Respondent's foreman, Walter Howard, advised them he was unaware of the reason for the lesser amounts of pay Respondent's All dates are in 1987 unless otherwise stated 287 NLRB No. 123 QUALITY PALLET SYSTEMS 1193 bookkeeper, Pauline Boucher, who had made out their paychecks told them the reduction in pay had been or- dered by Respondent's plant manager, Ben Irby, effec- tive that date and gave them each a sheet of paper set- ting out agreement to the reduction in pay that she asked the employees to sign The employees were upset with the reduction and did not sign Irby had been out of the building and after quitting time that day he was ap- proached by employees Gates, Brooks, Bronner, Satter- white, and Taylor, who inquired about the changes. A total of seven employees, who were employed as pallet makers or repairers, were affected by the reduction. These employees make wooden pallets and are paid on a piece rate basis for each pallet made or repaired The seven employees affected were James Brooks, Lonzy Gates, Frederick Bronner, Kenneth - Satterwhite, Eddie Taylor, and two Laotion employees, Khamchan Vonsen- devane and Tia Kenvongsa Irby confirmed that there was to be a reduction in the amount the employees would be paid per pallet on the piece rate basis, under which their wages were determined. However, Irby told the employees that the bookkeeper, Boucher, had been premature in issuing them reduced checks, as the change was not to go into effect, until next week and that he would correct the discrepancy next week. On Monday, 12 January, Irby met with the pallet makers in a brief early morning meeting Employee Brooks left shortly after the start of the meeting for an appointment and did not return until the next day. At the meeting Irby told the employees it was unnecessary to reduce their wages as a result of a decrease in Respondent's profits, but that he would review the decision again in 30 days. The meeting ended and the employees went to work Ac- cording to the testimony of Irby, the employees indicat- ed their agreement with the reduction that he changed from an overall reduction to a reduction for pallet-type numbers two and three from 40-cents to 35-cents per pallet and told the employees he would review the situa- tion in 30 days. According to the testimony of Gates and Bronner some employees indicated their willingness to work for the reduced wages but others did not Taylor testified that he agreed to the changes as did the two La- otian employees. On Tuesday, Brooks returned to work and inquired of the other employees about what had happened at the meeting On being told, he discussed the matter with the other employees and urged them to ask for another meeting. On Wednesday morning, 14 January, Brooks and pallet workers Gates, Bronner, Satterwhite, and the two Laotian employees met with Irby Laotian employee Vonsendevane speaks halting, limited English whereas Laotian employee Kenvongsa speaks no English. At the meeting the employees indicated their dissatisfaction with the reduction in wages. According to the testimony of Brooks, Bronner, and Gates, Brooks and the other em- ployees attempted by persuasive arguments to convince Irby of the unfairness of the reduction in rates and Irby became visibly angry and initially told Brooks and then all of the employees to "hit the clock" meaning to punch' out their timecards and leave Gates testified Irby told Brooks, "You're not going to come here and change anything, the fact about it, you hit the clock All of you hit the clock," and that Irby then walked out of the breakroom. Brooks testified Irby told him to "hit the clock" and then told everybody to hit the clock. Bron- ner testified that Brooks was talking to Irby on his arriv- al at the meeting and that Irby asked Brooks why he was disturbing the employees as the rates had been agreed on at the Monday meeting Bronner interjected that Brooks was not disturbing the employees as they wanted to meet again with Irby and that Irby then said, "hit the, clock." Brooks, Bronner, and Gates looked at each other accord- ing to the testimony of Brooks and Gates and then all the employees complied and clocked out. Gates testified that he believed the employees would have returned to work the next day as Irby had on a prior occasion told the employees to stop production and then permitted them to return to work later Irby testified that he had considered the matter closed on Monday and that the employees had indicated their willingness to work for the reduced rate of pay at that time but, Brooks, who he characterized as a "trouble- maker," had stirred the matter up again and had threat- ened him. He denied having told the employees to "hit the clock," until after they had informed him that they would quit rather than work for this reduced pay rate and had clocked out at which time he told them that "if they could not go to work and want to punch the clock, that was up to them " Irby admitted on cross-examina- tion that the employees had not said anything about quit- ting but had punched the timeclock and left Irby con- tended that he was attempting to get the employees to return to work during the meeting, and at no time told them to "hit the clock" except for his statement after they had already done so. Gates testified that after Irby had told the employees to hit the clock Irby put his hands in his pants , and walked away to another part of the building where he stored some antique cars The Respondent also called Taylor who testified he had agreed to the reduction in pay at the Monday meet- ing and did not attend the Wednesday meeting. The Re- spondent also called Vonsendevane who speaks limited English Vonsendevane testified that he was standing some distance from the discussion and that he did not understand all that was said He testified he heard Brooks tell him (Khamchan), "Nobody work, go home " He testified he did not hear Irby say anything He said, "nobody said fired or quit " Vonsendevane then punched out on the clock and left Vonsendevane returned the next day, Thursday, and was returned to work on Friday as was Kenvongsa Irby testified that the church group representatives who sponsored Vonsedevane and Ken- vongsa called him several times and told him that Von- sendevane and Kenvongsa had been caught up in the meeting, but were not involved and he permitted them to return to work. On the next day Brooks, Gates, Bronner, and Satterwhite returned to the office and were permit- ted to get their things but were not permitted to return to work All but Gates became involved in a loud argu- ment with Irby and Irby told Boucher to "call the law," which she did and the police arrived shortly thereafter and asked Irby whether they worked there and accord- ing to the testimony of Bronner and Brooks, Irby told 1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the police that they had been fired. Brooks, Gates, Bron- ner, and Satterwhite were given termination notices stat- ing that they had quit. None has been returned to work. According to the testimony of Irby, Brooks called him "an onery son-of-a-bitch" during this conversation. Brooks denied this and Gates and Bronner corroborated this denial. Boucher testified that she observed the meet- ing on Thursday and heard loud and angry voices as the young men surrounded Irby, who is an older man in his early sixties, and that she could observe that Irby started to visibly shake during the conversation. Irby also testi- fied that Brooks returned to the building the afternoon on Wednesday and offered to sell Irby some pallets that Irby bought. Boucher also testified that Brooks returned to the office on several occasions on Wednesday or Thursday and on one occasion entered by a side en- trance. Brooks denied returning to the premises addition- al times. Analysis I conclude that the version of the events of the Wednesday meeting testified to by Brooks, Gates, and Bronner is the accurate one. In making this determina- tion, I have carefully reviewed my impressions of the witnesses on the stand, and the sequence of events as tes- tified to by each. I found Brooks and Gates to be very positive about what occurred at this meeting. Gates' tes- timony was particularly detailed and convincing. I also found Bronner's version of the events to be credible. Sat- terwhite was not called as a witness and did not testify. I found Irby's testimony to be somewhat confusing and ex- aggerated, particularly in his characterization of Brooks. It is apparent that Irby became upset at the meeting par- ticularly with Brooks who he characterized as a "trou- blemaker." Irby obviously thought the matter had been settled on Monday and became upset with Brooks who he regarded as the instigator of the meeting. I have also reviewed the testimony of Vonsendevane and found it to be confusing and capable of several interpretations. Von- sendevane who was returned to work is not a disinterest- ed witness and his professed lack of understanding of what, if anything, Irby said at the meeting and his insist- ence that Brooks said, "nobody work, go home" did not convince me that Vonsendevane was relating all of the facts or at a minimum that he heard the words in the proper context concerning what Brooks said. Brooks tes- tified on rebuttal that he had talked to Vonsendevane and Kenvongsa in the parking lot and told them to return tomorrow and they would try to return to work. It is possible that this type of explanation may be what Vonsendevane is referring to, although I note that he tes- tified he heard this before he punched out. He also testi- fied that the meeting was loud and angry and he could not understand it all. While Brooks, Gates, and Bronner did not describe the exchange as heated, it is obvious that it was initially characterized by several people at- tempting to talk at once. The words "hit the clock" under similar circumstances have been held to constitute a discharge, and I find that the sequence of events and the credibility determinations fully support the conclusion that Irby discharged the em- ployees by these words ("hit the clock") Bay-Wood In- dustries, 249 NLRB 403 (1980). Moreover, complaints about wages have been long recognized as protected concerted activity. Maaco Auto Painting, 249 NLRB 1296 (1980). I conclude that the General Counsel has estab- lished a prima facie case that Respondent violated Sec- tion 8(a)(1) of the Act by reason of its discharge of its employees Brooks, Gates, Bronner, and Satterwhite and its refusal to reinstate them. I conclude that the Respond- ent has failed to rebut this prima facie case by the pre- ponderance of the evidence, as I find they were dis- charged and did not quit and I do not find that they were discharged for good cause. With respect to the conduct of Brooks after his dis- charge on Wednesday, 14 January, I do not find that his conduct was so egregious such as to proscribe his rein- statement, even assuming argudendo that he called Irby an "onery son-of-a-bitch." I also note that while Irby ini- tially characterized Brooks' conduct as threatening, he subsequently admitted that Brooks did not attempt to strike him or otherwise threaten him. I have also consid- ered the prior criminal convictions of Brooks, but do not find them to mandate that his testimony be discredited, I note also that his testimony was corroborated by Gates and Bronner. CONCLUSIONS OF LAW 1. The Respondent, Quality Pallet Systems, Inc., a Georgia corporation is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent violated Section 8(a)(1) of the Act by discharging James Brooks, Lonzy Gates, and Freder- ick Bronner because of their engagement in protected concerted activities. 3. 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 engaged in unfair labor practices, I shall recommend that it cease and desist therefrom 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 James Brooks, Lonzy Gates, and Frederick Bronner immediate and full reinstatement to their former positions or their equivalent, to make them whole for any loss of earnings or benefits sustained as a result of Respondent's dis- charge of them, and to expunge any reference to said discharges from its file. Said loss of earnings and benefits shall be determined 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 rec- ommend a visitatorial clause as requested by the General Counsel under the circumstances of this case. See O. L Willis Inc., 278 NLRB 203 fn. 1 (1986). QUALITY PALLET SYSTEMS On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Quality Pallet Systems, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging its employees for engaging in protect- ed concerted activity. (b) 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 actions necessary to effectuate the policies of the Act. (a) Offer James Brooks, Lonzy Gates, and Frederick Bronner immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed (b) Remove from its files any reference to the unlawful discharges of James Brooks, Lonzy Gates, and Frederick Bronner and notify them in writing of this and that the discharges will not be used against them in any manner. (c) Make James Brooks, Lonzy Gates, and Frederick Bronner whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against them in the manner set forth in the remedy section. (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 Atlanta, Georgia, copies of the attached notice marked "Appendix."3 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. 2 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 3 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- 1195 (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 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 " 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 protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against any of our employees because they engage in protected concerted 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 James Brooks, Lonzy Gates, and Fred- erick Bronner immediate and full reinstatement to their former positions, or, if their jobs no onger exist, to sub- stantially equivalent positions without prejudice to their seniority or any other rights or privileges previously en- joyed and, WE WILL make James Brooks, Lonzy Gates, and Frederick Bronner whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest. WE WILL notify each of them, in writing, that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel action. QUALITY PALLET SYSTEMS, INC.