Custom Wood Interiors, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1980

248 N.L.R.B. 187 (N.L.R.B. 1980)

CUSTOM WOOD INTERIORS, INC. 187
Custom Wood Interiors, Inc. and Thomas W. Tuvell.
Case 12-CA-8459
March 7, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On December 14, 1979, Administrative Law
Judge George Norman issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions, a motion for leave to introduce
new evidence, and a supporting brief. The General
Counsel filed a brief in opposition to Respondent's
motion.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
I Respondent's hrief and motion for lease to intr .dluce nlew eidence
seek permission to shos that during November 1978. when Tuvlell as
laid off. Fred Breakey, Respondent's production manager. wsas engaged
v, ith other emplosecs in "an operation hich as in competition ith
[Respondent '" Assuming that Respondent had satisfactorily sho\v n that
this eidence was either nessI discovered or unavailable at the time of
the hearing, vse .ould and do herehs dens Respondent's motion since
the proffered eidence. even f accepted. would not affect the result
reached herein See Reppcl Stel and SupplY Co. Inc. 239 NLRB No 53
(1978) Breakes's competition ith Respondent could only circumstan-
tially bear upon and undermine his credibilits. a factor which is not cru-
cial to our acceptance of the Administrative Laws Judge's determination
that Respondent siolated the Act
2 Respondent has excepted to certain credibility findings made hb the
Administratire I.as Judge It is the Board's established policyv not to
overrule an administrative las judge's resolutions vith respect to credi-
bility unless the clear preponderance of all of the relevant eidence con-
vinces us that the resolutions are incorrect Standard Dry ll Products,
Inc.. 91 NLRB 544 (1950). enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
It is apparent that the Administrative as Judge intended to refer to
Tuvell and nadvertently referred to Breake) in the third sentence of par
3, sec IV The corrected sentence is as fiillows "On the other hand.
Breake5 testified that his response as negative hen T ell asked him if
he (Tu'ell) sas being fired for uniiin actisity but then proceeded to tell
Tuell, in effect., that if he hod been laid off fr uion actilit Breakey
wuould not hase told him so
We agree with the Administralive Law Judge that Respondent unllas-
fully discharged Tuvell because he engaged in protected concerted ac-
tisities on behalf of the Union At the outset, vse note that the Adminis-
tratile Lass Judge redited Tusell's testimony that Breaker told him he
ssas being fired fir having fought Respondent's president, Johnson. on
the conitract Additionally, lusell ,was the only emploee identified and
personallx cholsenl bh Johnson to be laid off. contrars tI past practice
The record sho w that normally Johnlson would deitilfN a prod uctl i
classificallon hich, i ies of production needs. ,Aas osertaffed Brea
key wuld then cull from that griiup the employee r eniployee, to he
laid off There is also e idencc that Jhnsoin had I leraled T sL ell',s snlok-
ing habits., alleged o he a reaslon fir his discharge. \S ithoUt prcx l s
complaint fi r qUile s',me Iime Tu eli testified Ihait his habits had heen
unchanged fr I cirs iea;rs hlllch included the time he had ,tirked
for Resplondent aind for anlther cornpanii Ilill.naged h Jhllson Addl
tionally. Johnson testified that oimclime during the sunmmer, hc h ad
begL t keep fig ures, n Ih c)ist per fltlure ssaltchilng er ti'Xlllr, and
248 NLRB No. 23
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Custom Wood Interiors, Inc., Tampa, Florida, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make Thomas W. Tuvell whole for any
losses he may have suffered by reason of his un-
lawful discharge, in the manner set forth in the sec-
tion herein entitled 'The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
"lying do n hos long it takes for person ti nmake a table and hos, long
it as taking them to do a perimeter "3hil Respondent claimed
that Tux ell's poor production as in large part the reari, tfor his la! off.
Respondent failed to submit an) dociumentatlon of this lack of procduct% -
ilt. xern through it admittedly as keeping such records Respondent's
failure 1to produce this eidence s arrants the iference that such proof
would have not have aided Respondent's case See lxironin Inc (ih
Divirson), 199 NI.RB 131. 134 (1972)
Johnson's deviation from past layoff procedure. his relatiel\ sudden
interest in Tuvell's smoking habits, and Respondent's failure tIu document
its claim that Tuvell's production ,uas poor, considered in conjvction
'sith sWhat e consider to be the key factor-Tuell's credited testimony
that Breakey said the firing wsas premised on Tuxell's protected aclil-
ties-- all lead inexorably to the conclusionl that Respondent iolated Sec
8(a)(l) and (3) of the Act
: Respondent excepted to the proposed remedy hich requires Re-
spondent to offer Tusell reinstatement The record reveals that Respon-
dent offered Tusell reinsatemenl in a letter dated February 20. 1979) and
that at the hearing, the General CouI Il conceded that reinstatement had
in fact been offered. and as n longer all issue There is nothing in the
record to indicate that the offer ,sas other than full and unconditional
and therefore alid We therefore find that Respondenl's exception is
meritolrius, and hase modified the recommended Order to reflect our
determination the Respondent is relieved of ils obligation to offer Tuxell
reinstatement Of course, Respondent must sill reimburse Tuxell for an)
monetary losses suffered as a result of his discharge
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Rela-
tions Act and has ordered us to post this notice.
We intend to abide by the following:
The National Labor Relations Act gives all
employees the right:
CUSTOM WOOD INTERIORS INC. 87
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT terminate employees for en-
gaging in concerted activities with other em-
ployees for their mutual aid and protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed under Section
7 of the Act.
WE WILL make Thomas W. Tuvell whole
any losses he may have suffered as a result of
his unlawful discharge, plus interest.
CUSTOM WOOD INTERIORS, INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
case was heard on May 7 and 8, 1979, in Tampa, Florida.
It is based on an unfair labor practice charge filed on
January 8, 1979, by Thomas W. Tuvell, an individual,
against Custom Wood Interiors, Inc., herein called Re-
spondent. A complaint based on that charge was issued
on February 5, 1979, by the Regional Director for
Region 12 of the National Labor Relations Board. The
complaint alleges that Respondent terminated the em-
ployment of employee Thomas W. Tuvell and thereafter
refused and continues to fail and refuse to reinstate said
employee to his former or substantially equivalent posi-
tion of employment because Tuvell was a member of
and/or assisted United Brotherhood of Carpenters and
Joiners of America, Gulf Coast District Council Carpen-
ters, Local No. 696, herein called the Union, and because
said employee engaged in concerted activities for the
purpose of mutual aid or protection.
Respondent denies that Tuvell was terminated or that
he was terminated for the reasons alleged in the com-
plaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. The General Coun-
sel and Respondent filed briefs.
Upon the entire record, including my consideration of
the briefs and my careful observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Florida corporation with an office and
place of business located in Tampa, Florida, where it is
engaged in the business of manufacturing and selling
store fixtures. During the past 12 months, which is repre-
sentative of all times material herein, in the course and
conduct of its business operations, Respondent manufac-
tured, sold, and directly shipped products valued in
excess of $50,000 from its Tampa, Florida, place of busi-
ness to its customers located outside the State of Florida.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
United Brotherhood of Carpenters and Joiners of
America, Gulf Coast District Council Carpenters, Local
No. 696, is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent and the Union were parties to a collec-
tive-bargaining contract covering Respondent's employ-
ees. That agreement expired on October 31, 1978.' Ne-
gotiations for a new contract were conducted in Septem-
ber and October and a new contract was agreed upon in
the last week of October.
Thomas W. Tuvell, the Charging Party, had been in
Respondent's employ since the early part of 1974. His
job was carpenter-assembler. He testified that in Septem-
ber, at the commencement of negotiations, Respondent's
employees began discussing what they wanted their
union to seek at the bargaining table. He said these dis-
cussions took place in the plant, many at his workbench
which was centrally located in the plant. He said that be-
cause he was one of the senior employees and older than
the others they sought out his advice with respect to po-
sitions to be taken in the negotiation process. He testified
further that the offers which were made by Respondent
during negotiations and the employees' counteroffers,
and vice versa, were discussed by the employees after re-
ceiving blow-by-blow reports from the negotiating com-
mittee. Tuvell took certain positions with respect to the
demands that he thought should be made of the employ-
er and, more often than not, his suggestions were adopt-
ed after an informal vote of the employees.
Shortly after the contract was entered into, or in the
first part of November, Tuvell went on vacation and re-
turned to work on Monday, November 27. He testified
that on the afternoon of his first day back at work he
was approached by Fred Breakey, the production man-
ager, and was told by Breakey that he had some bad
news for him. Breakey then proceeded to tell him he was
laid off. Breakey also said, "I'm also going to have to tell
you that I can't call you back." Tuvell responded,
"What's the matter, I mean what's the reason?" Breakey
replied that Huey (Huey Johnson, the president of the
Company) had told him that Tuvell fought him on the
contract. And then Breakey said, "I'm not supposed to
tell you this." Tuvell then said, "If you are going to lay
me off and you're not going to call be back that's the
Lfl ,, othcrsvs ill .';llad ll ¢x'l, t rct'if , 't'od i Iccrill ook Plrce in
1 978
CUSTOM WOOD INTERIORS, INC. 189
same as being fired ain't it." Breakey said, "Yes, it is."
And with that Tuvell began to pack his tools.
Breakey testified as follows concerning that conversa-
tion:
I approached Mr. Tuvell and told him I have
some bad news, that I was going to have to let him
go. And at that time it seems like-I don't remem-
ber the exact conversation. But he said "Well, does
it have anything to do with union activity?"
I said, "No. It's not that. If it was I couldn't tell
you that anyway."
He said, "Well, will I be coming back?"
I said, "It doesn't look that way."
Breakey also testified that Tuvell was a skilled worker
and that he did not want to let him go, but Johnson de-
cided they had to let him go because work was slow and
they had to keep cutting back.
Respondent laid off a number of employees in Septem-
ber and the first week of October. Three of those em-
ployees were recalled in November for a rush job and
again laid off in November. There were no other layoffs
after the earlier large layoff except Tuvell's.
Huey Johnson, president of Respondent, at first testi-
fied that Fred Breakey had decided to lay off Tuvell but
both he and Breakey later testified that Breakey usually
decided which employees to lay off, but the only em-
ployee that Johnson selected for layoff was Tuvell. John-
son testified that Tuvell escaped being laid off in Septem-
ber because Breakey wanted to keep him. Breakey
thought he was a good worker. After examining his affi-
davit, Johnson recalled that Tuvell escaped an earlier
layoff because he was not at the plant at that particular
time and, only after the discussion with Breakey, he
agreed to keep Tuvell. Breakey, however, was not aware
of the decision to lay off Tuvell in the earlier layoff and
the decision to lay off Tuvell only if things got slower.
Johnson testified that Tuvell was laid off because of
his poor performance and spending too much time in the
restroom. He said he did not know what Tuvell did in
the restroom, but had been told that he was smoking al-
though he never saw Tuvell smoking in the restroom.
Although Tuvell smoked in the restroom standing in the
doorway and Johnson admitted observing Tuvell closely,
Johnson claims he never saw Tuvell smoking but was
merely told that he was smoking. Notwithstanding,
Tuvell was observed by many other employees while he
smoked in the restroom with the door open. Johnson
later testified that Tuvell was placed on the layoff list be-
cause of excessive restroom breaks.
Breakey testified that Johnson wanted to lay off
Tuvell because his work habits and the habit he men-
tioned was smoking in the restroom. However, Breakey
said that Tuvell did not smoke in the restroom any more
than any other employee but because he left the res-
troom door open it was obvious and was seen by John-
son while others were not. Tuvell testified without con-
tradiction that he had never received any complaint
about his smoking nor any notice that Respondent was
not satisfied with his work.
As for management's awareness of Tuvell's discussions
with other employees concerning their positions during
collective bargaining, there is no direct evidence that any
management official was aware of Tuvell's activities.
However, the plant was small, ranging from 15 to 25 em-
ployees, and most of Tuvell's activities occurred near his
workbench. As previously stated, the bargaining began
in September and ended in late October. Johnson, while
testifying, admitted that he had been watching the floor
very closely during the period of September and Octo-
ber and that during October and November he was
watching Tuvell's work very closely and keeping re-
cords on what was being produced.
IV. DISCUSSION AND CONCLUSIONS
Considering the small size of the plant, the plant presi-
dent's own testimony that he watched the plant oper-
ations and Tuvell very closely during the bargaining
period, September through October, and at a time when
Tuvell and other employees (during work breaks and
lunch) discussed offers and counteroffers in connection
with the bargaining negotiations then in progress, creates
the inference that Johnson was aware of Tuvell's pro-
tected union activities in the plant during September and
October. The Board and the courts have often inferred
company knowledge of employees' protected activities in
similar circumstances. Webco Bodies, Inc., d/b/a Webco
Pacific, Inc., 595 F.2d 451 (8th Cir. 1979).
In Webco, supra, a case whose facts are remarkably
similar to the facts herein, the court stated, with respect
to company knowledge, as follows:
The Board reasonably inferred that the Company
knew that the Union organizing campaign was pro-
ceeding from the following facts:
Union activity was carried on openly in a small
plant that employed only eighteen persons. A
number of employees discussions about the Union
occurred during lunch while they were sitting on
truck bodies or chassis at the plant. One of the em-
ployees involved in the discussions was the brother-
in-law of the plant manager. The nature of the
Company's operation was such that responsible
management officials were continuously in contact
with the work force. The plant manager worked
closely with the employees and was often in the
plant. See Chauffeurs, Teamsters and Helpers Local
633, N.H. v. N.L.R.B., 166 U.S. App. D.C. 157, 509
F.2d 490 (D.C. Cir. 1974); Amyx Industries, Inc. v.
Xi.L.R.B., 457 F.2d 904, 79 LRRM 2930 (th Cir.
1972).
In many respects the testimony of Johnson and Brea-
key was inconsistent with their own earlier testimony
and with each other's testimony. Moreover, Tuvell testi-
fied creditably that, when he asked Breakey if he was
being fired for his union activity, Breakey told him he
was being laid off and would not be recalled because he
had opposed Respondent's contract proposals and influ-
enced other employees to do the same. On the other
hand, Breakey testified that his response was negative
when Breakey asked him if he (Breakey) was being fired
for union activity but then proceeded to tell Tuvell, in
effect, that if he had been laid off for union activity
Breakey would not have told him so. To me, that reveals
CUSTOM WOOD INTERIORS, INC
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Production Manager Breakey would either lie or
withhold the truth to suit his or Respondent's purposes.
For that reason, and his inconsistent and contradictory
testimony, I do not credit him
I find that Tuvell was terminated because he was a
member of and/or assisted the Union and because he en-
gaged in concerted activities for the purpose of mutual
aid or protection as alleged in the complaint.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Respondent discharged Thomas W.
Tuvell because he was a member of and/or assisted the
Union and because he engaged in certain concerted ac-
tivities for the purpose of mutual aid or protection, I
shall recommend that Respondent offer him immediate
and full reinstatement to his former position or, if his
former position no longer exists, to a substantially equiv-
alent position without prejudice to his seniority and
other rights and privileges, and make him whole for any
losses he may have suffered as the result of his discharge.
Any backpay found to be due shall be computed in the
manner prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), with interest to be computed as set
forth in Florida Steel Corporation, 231 NLRB 651
(1977).2 Respondent shall also be ordered to cease and
desist from infringing upon the Section 7 rights of its em-
ployees "in any like or related manner." See Supreme
Bumpers Inc., d/b/a Precision Plating, 243 NLRB No. 45
(1979).
CONCLUSIONS OF LAW
1. By laying off Thomas W. Tuvell and thereafter re-
fusing to reinstate him to his former substantially equiv-
alent position of employment because he was a member
of and/or assisted the Union and because he engaged in
concerted activities for the purpose of mutual aid or pro-
tection, Respondent engaged in and is engaging in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(l) and Section 2(6) and (7) of the Act.
2. By engaging in the conduct prescribed above, for
the reasons set forth above, Respondent discriminated
and is discriminating in regard to hire, tenure, and terms
or conditions of employment of its employees, thereby
discouraging membership in a labor organization, and
Respondent thereby engaged in and is engaging in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and Section 2(6) and (7) of the Act.
2 See., generally, Isi Plumbhing Heating Co. 138 NLRB 716 (1962)
3. The unfair labor practices numerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby make the following recommended:
ORDER3
The Respondent, Custom Wood Interiors, Inc.,
Tampa, Florida, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because
they engaged in concerted activities with other employ-
ees for mutual aid and protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Thomas W. Tuvell immediate and full rein-
statement to his former position or, if that is not possible,
to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make
him whole for any losses he may have suffered by reason
of his unlawful discharge, in the manner set forth in the
section of his Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Tampa, Florida, facility copies of the at-
tached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Resondent's autho-
rized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Respondent shall take reasonable steps to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3 In the event no exceptions are filed as pros ided by Sec 102 46 of the
Rules and Regulations of he National Labor Relations Board. the find-
ings. conclusions. and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conlclusions. and Order. and all objections thereto
shall be deemed waisted for all purposes
4 In the eent that this Order is enforced b a Judgment of a United
States Court of Appeals. the ords in the notice reading "Posted by
Order of the National Labor Relations Board' shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "