U S Furniture Industries

US FURNITURE INDUSTRIES Chatham County of High Point, a Division of U S Furniture Industries and James Turner Case 11-CA-12659 March 10, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On November 23, 1988, Administrative Law Judge J Pargen Robertson 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, i and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Chatham County of High Point, a Divi- sion of U S Furniture Industries, High Point, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(b) (b) In any like or related manner interfering with, restraining, or coercirg employees in the ex ercise of the rights guaranteed them by Section 7 of the Act " 2 Substitute the attached notice for that of the administrative law judge r 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 judges 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 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 159 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT discharge 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 exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer immediate and full reinstatement to James Turner to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed WE WILL make James Turner whole for any loss of earnings he suffered by reason of his discharge, with interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way CHATHAM COUNTY OF HIGH POINT, A DIVISION OF US FURNITURE IN- DUSTRIES Patricia L Timmins Esq, for the General Counsel Robert E Sheahan Esq of High Point, North Carolina for the Respondent DECISION STATEMENT OF THE CASE J PARGEN ROBERTSON Administrative Law Judge This case was heard by me in Winston Salem North Carolina, on August 31, 1988 The complaint which issued on May 2 1988 based on a charge filed on March 18 1988 alleges that Respondent violated Section 8(a)(1) of the Act i The issue here is whether James Turner was dis charged because he engaged in protected activity Spe cifically this decision must address the basis for Re spondent s decision to discharge Turner on March 4 1988, and whether that basis illustrates conduct viola tive of Section 8(a)(1) In dealing with the question of the basis for Respond ent s decision to discharge James Turner I must deter mine the source of Respondents decision i Respondent in its answer to the complaint admitted all the com merce allegations and that it is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act 293 NLRB No 19 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The highest ranking supervisor that testified was Don Gouge, Respondents warehouse manager Gouge was the supervisor who told Turner that he was discharged Although James Turners testimony was disputed on several points, there was no dispute regarding his testa mony about his terminal interview with Warehouse Man ager Gouge [Don Gouge] told me that I had been terminated by the Company and that it had been nice working with me And I asked him why had I been terminat ed and he said he did not know And I could ask Larry Smith for further details Gouge did not testify concerning the specifics of his terminal interview with Turner Gouge did admit that Larry Smith made the decision to terminate Turner Gouge testified Larry Smith and he s my boss and I d mentioned it to him also, about what happened And I think it was about 3 15 he come [sic] into my office and told me to go ahead and terminate Jim Turner for insubordination So I did After being told of his discharge by Gouge Turner spoke to Larry Smith Smith did not testify Turner s tes timony regarding his conversation with Smith is unrebut ted I asked him why I had been terminated from the Company He asked me if I asked Don Gouge why I had been terminated from the Company and I told him that I had inquired it of him and he said he did not know I could ask and he said Don told you he didn t know And I said yes that s what he told me And he sort of looked at me funny He told the reason you ve been terminated is under the-insub ordination which is to say you ve been talking with the temporaries about the wages and the benefits and that there was a dispute there as far as what he made and what they made And that I didn t get along with the new employees or I didn t want them working there And he said-insubordination or not I don t know but that s the way it is Dunng work on the day of his discharge James Turner talked with several employees including Sandy Dalkins who had been recently hired, and Alonzo Miller Turner s conversations also included two employ ees of Regency Temporary Service One of those tempo rary employees was Hubert Strickland Strickland was assigned to work at Respondent on March 4 1988 Those conversations included employees wages and the difference between the hourly wage of the temporary employees and that of new hires Dalkins and Miller The temporary employees were making $5 an hour while Dalkins and Miller were making $4 an hour Anton Holland was the only supervisor that overheard any of the conversations involving Turner and others Holland overheard Turner discuss the difference in the wage rates of temporary employees and new hires Hol land testified Q Just relate what you overheard at that time A Turner was making a comparison as far as wages and telling these guys like man you guys fools for working here and these guys making so much and these guys making so much and these guys and I wouldn t do this and he just making them feel bad And he- Q Did he suggest that they quit) Did Mr Turner suggest that Dalkins and Miller quit? A He made the statement like I wouldn t work here if they were getting paid more than I was And he was laughing and you know, the more he laughed I guess, the more they was getting upset there Soon after Holland overheard Turner talking with Dalkins, Miller, and others, Sandy Dalkins and Alonzo Miller talked with Warehouse Manager Don Gouge Gouge testified about that conversation So when I went back out into the warehouse Sandy and Alonzo was walking toward me to wards the time clock I stopped them and asked them what their problem was They said we re thinking about quitting And I said if you re not happy with the job, you might as well go ahead and quit And they said okay So they went and punched out Discussion Respondent in its brief, contends James Turner was fired on March 4, 1988 because he intentionally and de liberately instigat[ed] other employees to quit their jobs Respondent contends that Turner was not discharged be cause he discussed wages with other employees In fact Respondent, in its brief concedes that the law is clear that discharge for that reason would constitute a viola tion The General Counsel on the other hand argues that Turner was discharged because he discussed wages with other employees The undisputed evidence shows that the General Counsel is correct The testimony regarding Turner's conversation with the official who decided to discharge him, Larry Smith, shows that Turner s discharge was motivated by his talking with the temporaries about the wages and the benefits and that there was a dispute there as far as what we make and what they make Smith said nothing about instigating other employees to quit their jobs That evidence shows that Turner s discussion about wages constituted a reason for his discharge Regarding Respondents contention that Turner intentionally and deliberately instigated other employees (i e , Dalkins and Miller) to quit their jobs, I shall consider what evidence was available to Larry Smith when he decided to fire Turner Although several employees testified there was no showing that any of those employees reported to super vision what Turner had said The only supervisor shown to have knowledge of what Turner said was Anton Hol land Holland s material testimony is quoted above US FURNITURE INDUSTRIES There are several factors to consider in determining the impact of Turner s comments to Dalkins and Miller Regarding his influence on their quitting it is noteworthy that subsequent to their discussion with Turner, Ware house Manager Gouge suggested to Dalkins and Miller that they quit Secondly I must consider to what extent Turner s comments were not part and parcel of the wage dis cussion, i e, if the law protects employees in their discus sion of wages, is it permissible to limit that discussion to comments that do not rise to the level of suggesting strong actions by employees Additionally I must question whether Respondent ac tually determined that Turner would have been dis charged absent the wage discussion (Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982)) There is substantial evidence that it was the wage differential that motivated Turner s comments Moreover the discharging supervi sor Larry Smith clearly articulated that the wage com ments motivated Turner s discharge The record does not show that Respondent was ever able to separate the wage discussions from the remainder of the employees discussions As noted above, the unrebutted evidence shows that instigating other employees to quit their jobs was not ar ticulated as a reason for Turner s discharge until ad vanced in these proceedings During his terminal inter views with Don Gouge and Larry Smith, James Turner was not told that the was being discharged because he caused Dalkins and Miller to quit Finally there is no showing that Respondent ever pur sued an inquiry into why Dalkins and Miller quit The assertion that Turner intentionally and deliberately instigat[ed] resignations of other employees is not deter minative of whether Turner was discharged because of his protected activities Even if Respondent had deter mined that Dalkins and Miller quit because of Turner s comments, its activity may have been violative if those comments were protected The evidence shows that Re spondent did not inquire why Dalkins and Miller quit It did not ask them first if Turner s comments caused their resignation and, if so which comments by Turner caused the resignations I am unable to determine that Respond ent relied on unprotected comments by Turner when there was no showing that it even questioned why Dal kins and Miller quit The above considerations convince me that the moti vating factor for Respondent's action was James Turner s discussion with other employees and with temporary workers assigned to work for Respondent about their wage rates That action by Respondent constitutes a vio lation of Section 8(a)(1) (See Rescue Systems, 284 NLRB 694 (1987)), Scientific Atlanta Inc 278 NLRB 467 (1986) Electronic Data Systems 278 NLRB 125 (1986) The Loft, 277 NLRB 1444 (1986), A L S A C, 277 NLRB 1532 (1986) The evidence failed to prove that Respondent would have discharged Turner in the ab sence of his protected activities CONCLUSIONS OF LAW 161 1 Chatham County of High Point, a Division of U S Furniture Industries is an employer engaged in com merce within the meaning of Section 2 (6) and (7) of the Act 2 By discussing wage rates with other employees James Turner engaged in protected concerted activity 3 By discharging employee James Turner because he engaged in discussions that were protected under the Act, Respondent violated Section 8(a)(1) of the Act THE REMEDY Having found that the Respondent has engaged in cer tam unfair labor practices in violation of Section 8(a)(1) of the Act I shall order it to cease and desist, and to take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent has illegally discharged its employee James Turner in violation of Section 8(a)(1) of the Act I shall order Respondent to offer Turner im mediate and full reinstatement to his former position or if that position no longer exists, to a substanially equiva lent position, without prejudice to his seniority or other rights and privileges and to make Turner whole, with interest, for any loss of earnings he suffered as a result of the discrimination against him Backpay and interest shall be computed in the manner prescribed in F W Wool worth Co 90 NLRB 289 (1950), plus interest as comput ed in New Horizons for the Retarded 283 NLRB 1173 (1987) 2 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed3 ORDER The Respondent Chatham County of High Point a Division of U S Furniture Industries High Point, North Carolina its officers agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging its employees because of their protect ed concerted activities (b) In any like or related manner restraining or coerc ing 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 (a) Offer James Turner immediate and full reinstate ment 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 privileges previously enjoyed, and make him whole for any loss of earnings 2 Under New Horizons interest is 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 accrued before 1 January 1987 (effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 3 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 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and other benefits suffered as a result of the discrimina tion against him, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him 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 facility, in High Point, North Carolina copies of the attached notice marked Appendix 4 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 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re spondent 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 customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced 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 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