B & D Custom Cabinets

National Labor Relations Board - Board Decisions

Mar 23, 1993

310 N.L.R.B. 817 (N.L.R.B. 1993)

817
310 NLRB No. 136
B & D CUSTOM CABINETS
1 We find merit in the General Counsel’s motion, and have accord-
ingly declined to consider those portions of the Respondent’s excep-
tions that refer to facts not in evidence.
1 All dates herein are 1992 unless otherwise indicated.
2 Employees Chamberlain and Gorney recalled the meeting was at
Soja’s home and that Gorney attended, while Soja testified he
thought the meeting had been held at Dale’s Cafe and that Gorney
did not attend. Chamberlain and Gorney were the more impressive
witnesses, and I credit their testimony.
Robert J. Moore, d/b/a B & D Custom Cabinets
and Joseph D. Soja. Case 8–CA–24367
March 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On January 13, 1993, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief and
a motion to strike portions of the Respondent’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Robert J. Moore, d/b/a B
& D Custom Cabinets, Maumee, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Paul C. Lund, Esq., for the General Counsel.
Robert J. Moore, pro se, of Maumee, Ohio, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon a
charge filed in the captioned case on February 25, 1992,1 by
Joseph D. Soja, an individual, the Regional Director for Re-
gion 8 of the National Labor Relations Board issued a com-
plaint on April 9 which alleged, in substance, that Robert J.
Moore, d/b/a B & D Customer Cabinets (Respondent) vio-
lated Section 8(a)(1) of the National Labor Relations Act on
or about February 10 by discharging employees Todd A.
DuQuette, Todd L. Chamberlain, and Joseph D. Soja because
they engaged in protected concerted activity. Respondent
filed an answer denying it had engaged in the unfair labor
practices alleged in the complaint.
The case was heard in Toledo, Ohio, on October 14. All
parties appeared and were afforded full opportunity to par-
ticipate. On the entire record, including careful consideration
of posthearing briefs filed by the parties, and from my obser-
vation of the demeanor of the witnesses who appeared to
give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a sole proprietorship owned by Robert J.
Moore, doing business as B & D Custom Cabinets, is en-
gaged in the manufacture and installation of cabinets at its
facility located in Maumee, Ohio. During the 12-month pe-
riod ending February 15, 1992, it provided services valued
in excess of $50,000 for Scott Construction, Tuttle Construc-
tion, Inc., Riverside Hospital, and Firelands Hospital, which
are located in the State of Ohio and are enterprises directly
engaged in interstate commerce.
Oon the above facts, which are admitted, I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The operative facts in this case are not in dispute.
The record reveals that Respondent fabricates and installs
wooden cabinets. Robert Moore is the owner of the business;
his wife, Debra, is the bookkeeper; and David Dodd is the
shop supervisor.
During the period immediately preceding Wednesday, Feb-
ruary 12, 1992, employees Todd A. DuQuette, Todd L.
Chamberlain, and Joseph D. Soja discussed their concern that
Respondent was not paying them properly, particularly for
work performed on jobs on which they, by law, were to be
paid stated prevailing rates. DuQuette and Soja both testified
that their concerns led them to contact union officials as well
as contractors for whom Respondent had performed work to
ascertain which jobs required the payment of a prevailing
rate to carpenters.
On Tuesday evening, February 11, the three named em-
ployees and employee John Gorney met at Soja’s home.2
The employees decided they were going to confront Moore
about their concerns the following day.
The named employees arrived at Respondent’s shop at ap-
proximately 7:45 a.m. on Wednesday, February 12. They in-
formed Supervisor David Dodd that they wanted to talk to
Moore before starting work. Dodd telephoned Moore, and he
arrived at the shop at around 8 a.m. and met with the em-
ployees. DuQuette did most of the talking and he explained
to Moore that the employees felt that Respondent owed them
money for work they had performed on prevailing rate jobs
but had not received. Additionally DuQuette, or one of the
other employees, voiced concern that Respondent might be
going out of business and that the employees wanted some
guarantee that they would be paid by noon each Friday and
that their checks would be good. The above employee con-
cerns and related matters were discussed until about noon. At
that time, DuQuette, Soja, and Chamberlain left the shop, in-
dicating they would return at 4 p.m. to see what Moore had
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been able to accomplish. Employee Gorney elected to remain
at the shop and work.
Employees DuQuette, Soja, and Chamberlain returned to
the shop at 4 p.m. Soja testified the following occurred (Tr.
26):
When we walked in, we came in the side entrance
of the building which is—it’s more like just a thorough
way between the shop and the office. Like a storage
area.
And Moore came out of the office, his face was real-
ly red and you could tell he was pretty well pumped
up. You know, I mean he was expecting our return, I’m
sure.
He breezed right past us and didn’t say a word and
walked out in to the shop. He turned back around, came
back and at that point Todd Chamberlain asked him,
said, what’s going on.
He goes, you guys are done, man. You walked out.
You guys withheld labor for money. He goes, you’re
done. Todd goes, so what’s that mean, are you going
to, you know, fight our unemployment, too, and he
said, Bingo.
Soja indicated that after telling them they ‘‘were done,’’
Moore gave them checks which partially reimbursed them
for amounts due them.
Several weeks after the described mid-February events,
employee Chamberlain was rehired by Moore. He actually
commenced work on February 24 and he remained employed
by Respondent at the time of the hearing.
During the investigation of the instant case, and, subse-
quently, when responding to the complaint, Respondent
owner Moore, in letters to Regional personnel, recited rough-
ly the same factual situation described by employees during
the hearing. (See G.C. Exhs. 2 and 3.)
When Moore, the owner of Respondent, appeared as a wit-
ness, his description of events during the morning of Feb-
ruary 12, 1992, paralleled the description of events given by
employees DuQuette and Soja. He recalled that just before
DuQuette, Soja, and Chamberlain left the facility, he under-
stood they wanted their prevailing wage monies or an agree-
ment that they would get them, and they wanted something
from the bank saying their paychecks would be good at noon
on Friday. He indicated he also understood they did not want
to work until their demands had been satisfied. Moore agreed
that the employees said nothing about quitting when they left
the facility, and he admitted he told them when they returned
at 4 p.m. that he considered them to have quit their employ-
ment because they refused to work on February 12, 1992.
During his testimony, Moore described a conversation he
had with the project manager on Scott Construction’s
Wyondotte Memorial Hospital job during the afternoon on
February 12. He testified that the project manager, Ron
Wetstone, called to tell him someone named Todd had called
to say that B & D did not show up that day because the
cabinets to be installed had not been built. Moore testified
the cabinets had been built and were in the shop, and he told
Wetstone that was the situation and invited him to come to
the facility and verify the truthfulness of his claim. Moore
did not indicate which Todd might have called Scott Con-
struction, and he failed to indicate that he took any action
as a result of the event.
Analysis and Conclusions
The applicable legal principles governing employees’ con-
certed activity in general are set forth in Meyers Industries,
268 NLRB 493, 497 (1984), where the Board stated:
In general to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. Once the activ-
ity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the con-
certed nature of the employee’s activity, the concerted
activity was protected by the Act, and the adverse em-
ployment action at issue (e.g., discharge) was motivated
by the employee’s protected concerted activity.
Clearly, the facts recited above establish that Respondent’s
employees engaged in concerted activity when they jointly
voiced their complaints regarding their pay and Respondent’s
ability to continue to pay them on February 12. There can
be no doubt that Respondent was aware of the concerted na-
ture of the employee’s activity, as the complaints and ulti-
matums were voiced to Respondent’s owner, Moore. As the
complaints related to the wages, hours and conditions of em-
ployment of the employees, the voicing of the complaints
and the employees’ concerted refusal to work until their
complaints were remedied constituted conduct which is pro-
tected by the Act. NLRB v. Washington Aluminum Co., 370
U.S. 9, 17 (1962). Finally, as Moore told DuQuette, Soja,
and Chamberlain they were no longer employed by Respond-
ent because they ‘‘withheld labor for money,’’ it is clear that
the named employees were terminated on February 12, 1992,
because they engage in protected concerted activity.
In sum, I find that General Counsel, by adducing the facts
summarized, supra, clearly established that employees
DuQuette, Soja, and Chamberlain’s participation in protected
activity was a ‘‘motivating factor’’ in Respondent’s decision
to terminate them on February 12, 1992. While Respondent
contends in its posthearing brief that it was entitled to con-
sider them to have quit on February 12 because they left the
facility without permission and subjected Respondent to cus-
tomer complaints, a similar contention was made and re-
jected by the U.S. Supreme Court in Washington Aluminum
Co., supra at 13–17. I thus conclude that Respondent has
failed to satisfy its evidentiary burden under Wright Line,
251 NLRB 1083 (1980), by showing that DuQuette, Soja,
and Chamberlain would have been terminated on February
12, 1992, even in the absence of their participation in pro-
tected concerted activity. For the reasons stated, I find, as al-
leged, that by terminating the employment of employees
DuQuette, Soja and Chamberlain on February 12, 1992, be-
cause they engaged in protected concerted activity, Respond-
ent violated Section 8(a)(1) of the Act. I further find, as al-
leged, that Respondent, through the February 12 actions of
Moore, engaged in independent violation of Section 8(a)(1)
by telling employees they were terminated because they had
engaged in protected concerted activities.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
819B & D CUSTOM CABINETS
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
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
National 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.’’
2. By telling employees on February 12, 1992, that they
were terminated for engaging in protected concerted activi-
ties, Respondent violated Section 8(a)(1) of the Act.
3. By terminating the employment of employees Todd A.
DuQuette, Todd L. Chamberlain, and Joseph D. Soja on Feb-
ruary 12, 1992, because they engaged in protected concerted
activities, Respondent violated Section 8(a)(1) of the Act.
4. The unfair labor practices recited above have a close,
intimate, and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully discharged Todd
A. DuQuette, Todd L. Chamberlain, and Joseph D. Soja, and
that it reinstated Todd L. Chamberlain to his former job on
February 24, 1992, Respondent will be ordered to offer Todd
DuQuette and Joseph D. Soja immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions of employment, without
prejudice to their seniority or any other rights and privileges
previously enjoyed, and make whole employees DuQuette,
Chamberlain, and Soja for any loss of earnings and other
benefits suffered as a result of their terminations, less net in-
terim earnings, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
I shall also recommend that Respondent be ordered to ex-
punge from its record any reference to the unlawful termi-
nations of employees DuQuette, Chamberlain and Soja, and
inform them that such will not be used as a basis for further
personnel action concerning them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Robert J. Moore, d/b/a B & D Custom
Cabinets, Maumee, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercing employees by telling them they are termi-
nated for engaging in protected concerted activities.
(b) Discharging its employees for engaging in protected
concerted activities for the purposes of collective bargaining
or other mutual aid or protection.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employees Todd A. DuQuette and Joseph D.
Soja immediate reinstatement to their former or substantially
equivalent positions of employment without prejudice to their
seniority or other rights, and make them and employee Todd
L. Chamberlain whole for losses they suffered as a result of
their unlawful terminations as set forth in the remedy section
of this decision.
(b) Expunge from its records and files any reference to the
discharges of the employees named above and notify them
in writing this has been done and evidence relating to their
unlawful discharges shall not be used against them in the fu-
ture.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
payments which will make whole the employees named
above for the discrimination practiced against them.
(d) Post at its facility at Maumee, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional Director for Region 8, shall
be signed by an authorized representative of Respondent and
posted immediately after their receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent 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 Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coerce employees by telling them they are
terminated for engaging in protected activities.
WE WILL NOT discharge our employees for engaging in
protected concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer employees Todd A. DuQuette and Joseph
D. Soja immediate reinstatement to their former or substan-
tially equivalent positions of employment without prejudice
to their seniority or other rights, and make them and em-
ployee Todd L. Chamberlain whole for losses they suffered
as a result of their unlawful terminations.
WE WILL expunge from our records and files any reference
to the discharges of the employees named above and notify
them in writing this has been done and evidence relating to
their unlawful discharges shall not be used against them in
the future.
ROBERT J. MOORE, D/B/A B & D CUSTOM
CABINETS