Amy Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 384 (N.L.R.B. 1971)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amyx Industries , Inc. and Local Union No . 2733 of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 17-CA-4466
June 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On March 1, 1971, Trial Examiner Maurice S. Bush
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter Respondent filed ex-
ceptions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Amyx Industries, Inc., West Plains, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: The sole issue under
the complaint herein is whether Amyx Industries, Inc., Re-
spondent, discharged employee J. D. Hobbs' because of his
activities on behalf of the above-named Union, the Charging
Party, in violation of Section 8(a)(3) and (1) of the National
These findings and conclusions are based, in part, upon credibility reso-
lutions to which the Respondent has excepted , alleging that the Trial Exam'
met was biased and prejudiced After a careful review of the record we
conclude that the Trial Examiner 's credibility findings are not contrary to
the clear preponderance of relevant evidence . Accordingly , we find no basis
for disturbing those findings and reject the charge of bias and prejudice on
the part of the Trial Examiner Standard Dry Wall Products, Inc., 91 NLRB
544, enfd 188 F 2d 363 (C.A. 3).
' Hobbs has no given or middle name He is known simply as J. D Hobbs.
Labor Relations Act. Respondent's answer denies the alleged
unfair labor practices.
The complaint was issued on December 8, 1970, pursuant
to the' charge filed by the Union on October 14, 1970, and
served upon Respondent,on the same date.
The case was tried before me at West Plains, Missouri, on
January 14, 1971. By agreement of the parties, the case was
submitted on oral argument presented at the conclusion of
the taking of testimony.
Upon the entire record and from my observation of the
witnesses make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is a Missouri corporation, engaged in the
manufacture of chairs and dinette tables with its place of
business and factory at West Plains, Missouri. In the course
and conduct of its business operations, the Respondent annu-
ally purchases goods valued in excess of $50,000 directly from
sources outside the State of Missouri, and annually sells
goods valued in excess of $50,000, directly to purchasers
located outside the State of Missouri. Respondent admits that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of the Act.
II THE UNFAIR LABOR PRACTICES
A. Background-Strike at Parent Company
During the Events Here Involved
Respondent came into existence some 5 years ago as a
subsidiary of Amyx Manufacturing Company, Inc., the par-
ent company. The latter is engaged in the manufacture of
furniture parts such as legs for TV sets which it sells to
manufacturers of TV sets in contrast to Respondent's opera-
tions which is the manufacture of chairs and dinette sets.
The Respondent has never operated a union shop. On the
other hand, the parent company has been under a collective-
bargaining contract with the same Union, the Charging Party
herein, which has sought to organize Respondent's plant at
the times here pertinent. The complaint herein, although it
mentions the described relationship between the two compa-
nies, is directed exclusively against the Respondent.
Upon the expiration of the collective-bargaining agreement
that the parent company had with the Union on September
30, 1970, the employees of the parent company went on strike
and stayed on strike until October 21, 1970,2 when a new
collective-bargaining contract was entered into between the
parent company and the Union. The contract was signed by
Orin Amyx as vice president of the parent company who is
also vice president of Respondent.
B. Chronology of Events, Including
Discharge of J. D. Hobbs
Hobbs began his employment with Respondent in October
1967 and was discharged some 3 years later on October 1,
1970. The Company has three departments; a mill depart-
ment, an assembly department, and a finishing department.
It is part of the function of the mill department to sand the
furniture parts in preparation for its finishing in the finishing
department. The mill employs approximately 12 sanders.
James Phipps and Leonard Johnson are foreman and assis-
tant foreman, respectively, of the mill department. Hobbs
2 Erroneously shown in the transcript of the record as September 21,
1970. Respondent's motion to change the date to October 21, 1970, is
granted.
191 NLRB No. 77
AMYX INDUSTRIES , INC. 385
began his employment with Respondent as a sander at $1.40
per hour. In the spring of 1969 Hobbs became leadman of the
sanding division of the mill department at the recommenda-
tion of Phipps at an hourly wage of $1 . 87, the highest paid
to any sander . As leadman , Hobbs both worked at his own
machine and taught and instructed the other sanders how to
handle their machines.
One of the Respondent 's sanders is Ralph Barton , age 19.
His father, whose full name is also Ralph Barton , works at
the nearby plant of the parent company. Someday prior to
Hobbs' discharge , Barton 's father, then among others on
strike against the parent company , asked his son, Ralph, if the
plant he worked in had a union and upon receiving a negative
reply told him it would help settle the strike at the parent
company if Respondent also had a union and asked him to
see what he could do about getting the Union started at the
Respondent 's plant.
On September 29, 1970 , young Barton approached Lead-
man Hobbs about getting the Union started at Respondent's
plant. Hobbs agreed . That day he contacted eight of the
sanders in his division about getting the plant organized and
then or the next day invited them to attend a union meeting
to be held in the evening of September 30 at the premises of
the American Legion Hall on the outskirts of West Plains.
Arrangements for the meeting place had been made by an
employee of the parent company, Claude Robinson, who
after having made the arrangements , conveyed the informa-
tion about the location of the meeting place to Hobbs' broth-
er-in-law, Ralph Fare, who was one of the sanders who
worked under Hobbs.
Among the sanders Hobbs contacted was Ray Price. Price
immediately expressed extreme hostility to having any union
in the plant and stated that he would rather quit than join a
union.
Later that same day Price , who was working with Foreman
Phipps on a shaper machine ' at a location adjacent to the
sanding division , walked over to Hobbs and quizzed him on
"Who was wanting a union?" Hobbs, now fully aware of
Price's bitterness towards unions, answered , "Do you think
I would tell you?" Thereupon Price returned to where he had
been working with Foreman Phipps on the shaper . Phipps left
the plant early that day without explanation.
The next day, October 1, Price asked Hobbs what had
happened the previous night at the union meeting. Hobbs
replied evasively that he (Hobbs) was "going to be president
of it [the Union]."
The night union meeting of September 30 was poorly at-
tended. It took place not at the Legion Hall but in an automo-
bile at the roadside along the hall. The only employees of the
Respondent present at the meeting were Hobbs, his brother-
in-law, Fare, and Leland Grisham who works in Respond-
ent's assembly department , and not in the mill department.
The only others in attendance were the aforementioned strik-
ing employee of the parent company, Claude Robinson and
Dick Wolfe , the president of the local or Charging Party
herein . Thus there were only three employees of the Respond-
ent and two outsiders at the meeting.
The next day, October 1 , was payday . At quitting time
Foreman Phipps told Hobbs that Plant Manager Cotton
Casada wanted to see him and -directed him to his office.
There Casada discharged Hobbs and handed him two pay-
checks, one for the current week and one for withheld pay.
Casada told Hobbs he was being discharged because his work
attitude and work was not satisfactory.
' A shaper machine shapes the seat of wooden chairs
At the trial Casada disclaimed any knowledge of Hobbs'
involvement with the Union at the time of his discharge and
justified his termination solely on the ground of his change in
attitude towards his work and the amount of time he spent
talking instead of working . Casada also justified the decision
to terminate Hobbs on the ground of that "leadman are in
primary training for assistant foreman." He testified that he
had finally decided that Hobbs "could not go any further
[than leadman] and that he had had a change of attitude, a
change in work habits , and we knew that if he did not want
to be leadman we could not break him back from leadman,
because of his temperment."
As to the accusation that Hobbs was spending too much
time talking , Casada conceded that as leadman it was Hobbs'
duty to teach and instruct the men who worked in the sanding
division on how to do a job and that this involved talking to
them.
On cross-examination Casada admitted that although he
had discharged Hobbs because of the alleged unsatisfactory
work performance and work habits , he had never at any time
prior to Hobbs' determination spoken to him to give him
warning that his work was not satisfactory or to advise him
of what he had to do to make his work satisfactory.
Casada further admitted that he had never at any time had
occasion to ask Foreman Phipps to speak to Hobbs for the
purpose of taking him to task for the poor quality of his work
or work attitude or to warn him that unless he improved he
would be separated from the Company.
Casada conceded that Hobbs ' termination was not brought
about by any specific incident in Hobbs' day-to-day work
performance . His testimony also shows that contrary to nor-
mal practice he did not consult with Hobbs' foreman or seek
his recommendation before he called Hobbs in to terminate
him. Casada is in daily consultation with Orin Amyx at the
plant of the parent company where the employees were on
strike at the time of Hobbs' union activities at Respondent's
plant. Hobbs was discharged notwithstanding Casada's ap-
preciation of the fact that the position of a leadman is an
essential and integral part of the operation of the plant which
requires a great deal of experience . At the time of the trial
some 3 months after Hobbs ' discharge the Respondent had
not as yet promoted any of the sanders in its employment to
leadman.
Foreman Phipps in his testimony was equally vague on
what, if anything, he found wrong with Hobb 's work or work
attitude . He admits that Hobbs became leadman on his
recommendation and that he recommended Hobbs for the
promotion because he had more experience on the six sand
machines in the plant than any other employee in the sanding
division . His only criticism of Hobbs was that he "had a
tendency to lag on his work." During his extensive cross-
examination, Phipps was unable to detail or describe just
what he found wrong with Hobbs ' work or work attitude. His
testimony shows that he never had occasion to reprimand
Hobbs or correct him for any serious faults in his work or
work attitude . He did not relate a single incident in Hobbs'
work experience for which he found it necessary to reprimand
or citicize Hobbs.
When Phipps was cross -examined on whether he had
knowledge of Hobbs' union activities prior to the discharge
through employee Ray Price, he was evasive . He admitted
working with sander Price on September 30 on a shaper
machine near the sanding machines . As previously shown,
Hobbs had spoken to Price on September 30 about getting a
union into the plant to which Price had reacted with extreme
hostility . When Phipps was asked on cross-examination on
whether Ray Price on September 30 had ever indicated to
him that some of the men were talking about organizing the
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, Phipps said "Well, if he did, it left me because I cer-
tainly don't remember him ever mentioning it." When
pressed on cross-examination as to whether Price mentioned
something about Hobbs talking to him about getting a union
started at the plant, Phipps did not flatly deny that he had
received such information from Price, but merely said, "I
certainly don't remember it." From a close and careful study
of Phipps' testimony and from demeanor factors, the Exam-
iner finds that Phipps acquired knowledge of Hobbs' union
activities through Price almost immediately after such activi-
ties had started and prior to Hobbs' discharge.
Leonard Johnson, age 54, a carpenter by trade, testified as
a rebuttal witness on behalf of General Counsel. For more
than 3 years, he had been assistant foreman of the mill depart-
ment working under Foreman Phipps. Prior to becoming
assistant foreman, he was leadman in the sanding division,
the job that Hobbs had before his termination.
As assistant foreman, Johnson had supervision of Hobbs.
His testimony shows that he worked very closely with Hobbs.
Asked what kind of work Hobbs did prior to his discharge
as leadman, Johnson replied "I'd class his work good." His
testimony further shows that he never had any reason to be
dissatisfied with his work or his attitude to his work. His
testimony also shows he never at any time had occasion to
complain to Foreman Phipps about Hobbs' work as a lead-
man or work attitude. As a result of working very closely
with Hobbs on a sanding machine, Johnson stated that hehad
confidence in Hobbs' work. He never found it necessary to
constantly check Hobbs' work. Asked by General Counsel
whether Hobbs' work was better than average, Johnson re-
plied "On some things he is better than average; other things
he wouldn't have, been any better on." I fully credit all of
Johnson's testimony.
Discussion and Conclusions
The record as a whole leaves little doubt that Respondent
had knowledge of Hobbs' brief efforts to organize the plant
prior to his abrupt discharge on October 1, 1970. It is clear
by inference from the record that sander Price, was the "leak"
to the Company of Hobbs' activities. Price was one of the
eight sanders Hobbs had contacted on September 29, 1970,
for support in getting the Union started in the plant. Price
immediately expressed bitter opposition to having any union
at the plant . That same day Price left the side of Foreman
Phipps with whom he had been working on a shaping ma-
chine to ask Hobbs "Who was wanting the Union" at the
plant . When Hobbs refused to give him this information,
Price returned to the side of Phipps to continue working on
the shaper machine. That day Phipps left the plant early
without explanation. The next day Price asked Hobbs what
had happened at the union meeting the previous night. It is
inferred from these facts that the Respondent acquired al-
most immediate knowledge of Hobbs' union activities from
Price to whom a union is anathema. Knowledge of Hobbs'
union activities is also attributed to the Respondent under the
"the small plant" theory as the division in which Hobbs
worked consisted of only' 12 employees of whom he contacted
8 for their support for the Union. Wiese Plow Welding Co.,
Inc., 123 NLRB 616, 618.
The record also compels the conclusion that Hobbs was
fired because of his union activity and not for cause as con-
tended by Respondent. This is borne out by a number of
factors. Among these are the timing and abruptness of Hobbs'
discharge within 3 days and at the very. first payday after he
had started his union activities, the fact that he was trying to
get a union started at Respondent's plant while there was a
bitter strike in progress at the plant of the parent company
in the same city, the fact that Respondent's plant manager
Casada was in daily contact with Orin Amyx who is vice
president of both the Respondent and the parent company,
the fact that Hobbs was never given any notice or warning of
the alleged deficiencies in his work or work attitude prior to
his discharge, and the spuriousness. of Respondent's conten-
tion that Hobbs was fired because of poor job performance
and work attitude. On the latter, neither Plant Manager
Casada or Foreman Phipps were able to come up with any
specific incidents which showed deficiencies in Hobbs' work
or work attitudes. Normally when an employee's work is not
satisfactory, management will call in the employee to tell him
that he must mend his ways or else there would have to be
a separation of service. Nothing of the sort happened prior to
Hobbs' termination. The records shows that he was never
reprimanded,or called in for any disciplinary reasons what-
ever by either Casada or Phipps. On the contrary, the cred-
ited testimony of Assistant Foreman Johnson shows that
there was nothing wrong with Hobbs' work or work attitude
which he was in a better position, to judge than any other
supervisor because he worked so closely with Hobbs. From
the testimony of Casada and Phipps,,despite their attempt to
show otherwise, and that of Johnson, it not only appears that
there was nothing wrong with Hobbs' work and work attitude
but that he was a good and conscientious worker and lead-
man.
I find and conclude that the reasons given for Hobbs' ter-
mination were pretextual and that the real motivation for his
discharge was the fact that he was trying to startup a union
at the plant of Respondent at the same time that the parent
company was having serious trouble with'striking employees
at its plant in the same city.
Upon the basis of the foregoing findings of fact and upon
the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the Union is a labor organization within the meaning of the
Act.
2. By discharging J. D. Hobbs for engaging in union activi-
ties Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid 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 in violation of Section 8(a)(3) and (1) of the Act, it
will be recommended that it cease and desist therefrom and
take certain-affirmative action designed to effectuate the pur-
pose of the Act, including the offer of reinstatement of J. D.
Hobbs, with backpay computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest
added thereto in the manner set forth in Isis Plumbing &
Heating Company, 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
the following is recommended:°
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusion, and Order, and all objections thereto shall
be deemed waived for all purposes.
AMYX INDUSTRIES, INC.
ORDER
Respondent Amyx Industries, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from discouraging membershi in Local
Union No. 2733 of the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, or any other labor orga-
nization, by discharging or otherwise discriminating in re-
gard to the hire or tenure of employment of employees, or any
term or condition of employment.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer J. D. Hobbs immediate and full reinstatement to
his former job or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole for loss of earnings
in accordance with the provisions of this Decision entitled
"The Remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records and all other records necessary to analyze and give
effect to the backpay requirements hereof.
(d) Post at its plant and office in West Plains, Missouri,
copies of the attached notice marked "Appendix. "I Copies of
said notice, on forms to be furnished by the Regional Director
for Region 17, after being duly signed by Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 17, in writing,
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
387
within 20 days from the date of receipt of this Decision, what
steps have been taken to comply herewith.'
6 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 17, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to J. D. Hobbs full reinstatement to his
old job or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniority or
other rights, privileges, or working conditions, and WE
WILL pay him for any loss that he has suffered because
we fired him.
WE WILL NOT discourage membership in Local
Union No. 2733 of the United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, or any other
labor organization, by firing or otherwise discriminating
against any of our employees because of their union
activities.
WE WILL notify J. D. Hobbs, if presently serving in
the Armed Forces of the United States, of his right to full
reinstatement, upon application, in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from
the Armed Forces.
AMYX INDUSTRIES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.,
Any questions concerning this notice or compliance with
its provisions may be directed by the Board's Office, 610
Federal Building, 610 East 12th Street, Kansas City; Mis-
souri 64106, Telephone 816-374-5181.