Dawson Cabinet Co., Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1977

228 N.L.R.B. 290 (N.L.R.B. 1977)

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dawson Cabinet Company , Inc. and Lois Gastineau.
Case 17-CA-7101-2
February 17, 1977
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 26, 1976, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent and counsel for
the General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Dawson Cabinet
Company, Inc., Carterville, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' Respondent contends the Administrative Law Judge 's theory for
finding that Gastineau was unlawfully discharged was not embodied in the
allegation of the complaint and that the allegation should be dismissed for
lack of notice We believe , however, that the issue of whether Gastineau was
discharged for refusing to work in protest of unequal pay was fully litigated
and the misconduct found clearly related to the conduct specifically alleged
and therefore find no ment in Respondent 's contention. See International
Longshoremen 's Association, AFL-CIO, Local 814 (West Gullf Maritime
Association), 215 NLRB 459,463-464 (1974)
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
came on for hearing at Joplin, Missouri, on August 19,
1976, upon the General Counsel's complaint, the principal
allegation of which is that Respondent discharged Lois
Gastineau on February 13, 1976, in violation of Section
8(a)(l) of the National Labor Relations Act, as amended,
26 U.S.C. § 151, et seq. The complaint, as amended, also
alleges incidents of interrogation and creating the impres-
sion of surveillance in violation of Section 8(a)(1).
Upon the record as a wholes including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
228 NLRB No. 47
FINDINGS OF FACT
1. JURISDICTION
Dawson Cabinet Company, Inc., is a Missouri corpora-
tion engaged in the manufacture and wholesale distribution
of furniture products. In the course of its business,
Respondent annually ships goods, products, and materials
valued in excess of $50,000 directly to customers outside the
State of Missouri. Respondent is now, and at all times
material herein has been, an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
There is little real dispute concerning the material facts in
this matter, the parties principally disputing the emphasis,
timing, and legal conclusions to be drawn from those facts.
The following summation is based upon the generally
credible testimony of all the witnesses.
Respondent is a family owned and operated business
with the two principal bosses, James and Gary Dawson,
being brothers. The total work force in early 1976 was
approximately 22 individuals of whom about 16 worked in
production. Of this number approximately seven or eight
were women. While Respondent has three production
departments, and while the employees are generally as-
signed to specific jobs, it does appear that all the employees,
from time to time, worked in the different departments. The
uncontradicted testimony of Lois Gastineau is that the
women worked at jobs interchangeably with the men.
Lois Gastineau had been first employed by Respondent
in March 1973. Between that time and her discharge on
February 13, 1976, she had two breaks in her employment
and had been rehired. She was considered to be a good
employee and was apparently reasonably close to the
Dawson family, at least insofar as she was asked by the
Dawson's for recommendations on prospective employees
and the like.
At the time of her discharge Gastineau was earning $2.50
per hour, being one of the two highest paid women
employees. At that time there were at least two male
employees, both of whom had less seniority at the plant, did
similar work to Mrs. Gastineau, and were earning $2.75 per
hour.
It was this discrepancy which lead Mrs. Gastineau and
Constance Everitt to complain about sex discrimination
with the Wage and Hour Division of the Department of
Labor, which they did in mid-September 1975. This fact,
however, was unknown to the Company until on or about
January 22, 1976.
At a state unemployment compensation hearing on
Everitt's discharge, she stated that she had filed such a
complaint. Everitt made no mention at this time that
Gastineau had joined with her.
Thus, as of January 22, the Company knew that sex
discrimination charges had been filed, however, no contact
up to that time had been made with the Company by the
DAWSON CABINET COMPANY 291
Wage and Hour Division , nor indeed was such contact
made until subsequent to Gastineau 's discharge.
On January 22, following his return from the Everitt's
unemployment compensation hearing , James Dawson
approached Gastineau and engaged her in conversation
concerning the hearing that he had just been to and the sex
discrimination charge . Gastineau testified that Dawson
said, "What do you think you are doing to us" as he
slammed down Everitt 's personnel file. Dawson does not
recall saying anything like that , but in any event , did admit
to a conversation with Gastineau concerning the wage rate
differential between men and women , which he attempted
to explain.
On January 26, Mrs . Gastineau had a conversation with
Gary Dawson in a small office near the production area.
During this , three subjects were discussed, two of which
related to other plant personnel and have no bearing on
Mrs. Gastineau 's discharge . The third subject discussed was
her grievance that the Company was paying men more than
women for doing the same work . While Mrs. Gastineau and
Gary Dawson gave somewhat different versions of this
conversation , they are in agreement that one of the items
discussed was her feeling that the women should be getting
equal pay with men for doing the same jobs.
Then on February 13, Mrs. Gastineau reported for work
at the usual time and began her usual job of operating the
rip saw . This is principally a two person operation . The saw
operator puts the wood into the saw which is taken out and
stacked by a person referred as "catcher" or "off-bearer."
Gastineau 's regular catcher was Bonnie Asbell who, it was
known , every few months had to take off work a couple of
hours to see a physician . It happened that the morning of
February 13 was one of these occasions and sometime
between 9 : 30 and 10 she did leave.
Following the break that occurred about that time
Raymond Shields , the production foreman , approached
Gastineau and advised her that he would take over her job
as rip saw operator and that she would be the catcher.
Gastineau said something at that time about "Nobody is
going to take my job from me."
According to Shields he then went to Gary Dawson who
said that he did not have time to get involved in a problem
of this sort . Dawson told Shields to assign Gastineau to the
job of a rougher . Shields returned to Gastineau and told her
to do the rougher job. She said that she would not unless
she got the same pay as the men who did rougher work.
Shields then took Gastineau to the office where her
termination interview took place . Those present at one time
or another were James Dawson , Gary Dawson, and
Raymond Shields . Shields was there at first, left for a short
time and returned . James Dawson was not there initially.
Toward the end of the interview Gary Dawson left to get
her check.
While there is some dispute in precisely what was said, by
whom and at what point in the interview , all parties agree
that Gastineau stated that she was refusing to perform the
rougher job to which she was assigned because she would
not be paid the same as the men doing that work.
At sometime dunng the interview her filing sex discrimi-
nation charges came up . Gastineau states that upon telling
James that she had already filed a sex discrimination charge
with the Wage and Hour Division he fired her . James, on
the other hand , said she was fired prior to the time she said
she had filed such a charge.
In any event , the principal matter of discussion was
Gastineau 's refusal to work because she was not receiving
equal pay with the men . James did ask her if she would quit
and she replied no. He asked her to sign a statement that
she was refusing to do the job which she declined. And he
asked her to repeat these statements before a fourth witness
which she also refused to do.
Thus , on the morning of February 13, 1976, Lois
Gastineau refused to perform a job to which she had been
assigned . The reason for her refusal was because she did not
receive the same pay as the men who were performing this
work . As a result , she was taken to the office , interviewed
by the principal officers of Respondent operating the plant,
and was discharged.
B. Issue
The principal issue framed by the complaint and answer
is whether Lois Gastineau engaged in protected concerted
activity and whether such activity was the precipitating
cause of her discharge on February 13. In addition, certain
statements are alleged to be violations of Section 8(a)(1).
C. Analysis
1. Lois Gastineau 's discharge
Among other things , Section 7 of the Act guarantees to
employees the right "to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection ...." And Section 8(a)(1) proscribes any act
on the part of an employer which interferes with, restrains,
or coerces employees in the exercise of the rights guaran-
teed by Section 7 . Thus if Gastineau 's activity is of the type
contemplated by Section 7 and if she was discharged for
having engaged in it, then the Company thereby violated
Section 8(a)(1).
The General Counsel argues that Gastineau and Everitt
filed a charge of sex discrimination with the Wage and
Hour Division of the Department of Labor and it was for
this that she was discharged . Respondent argues that she
was discharged for cause because (a) she refused the
rougher assignment and (b) she did not get along with
Shields.
The General Counsel contends that the Company knew
that Gastineau had joined with Everitt in filing the charge
because she said so just prior to being terminated . Respon-
dent says that Gastineau did not make this statement until
after she had been fired , although admitting it took place
during the termination interview.
Without resolving precisely when Gastineau stated that
she had filed the equal pay charge , it is clear that she was
brought to the office on February 13 for the purpose of
being terminated and prior to any company knowledge that
she had filed the charge . At least there is no evidence of
company knowledge prior to February 13.
While I find pretextuous Respondent 's assertion that
Gastineau 's personal problems with Shields was a factor in
her discharge , I likewise find that filing the equal pay
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge was not the cause . Nevertheless , from the total
factual situation I conclude that the precipitating cause of
her discharge was related to her allegation of sex discrimi-
nation, only one aspect of which was filing the charge.
Another aspect was Gastineau's refusal to work at a job in
which she would be paid less than the men doing the same
work.
By January 22, the Company knew that sex discrimina-
tion charges had been filed by Everitt . On that day James
Dawson and Gastineau had discussed this matter. By
January 26 Gastineau had complained to Gary Dawson
about two or three matters relating to conditions of
employment, particularly including the wage differential
between men and women.
Then on February 13, Gastineau refused a job assign-
ment specifically because she would not be earning the
same pay as men who performed that work.
In fact , men with less seniority than Gastineau were paid
25 cents an hour more than she. Such at least was
Gastineau's testimony undenied by the Respondent. Of
course whether there was in fact a violation of Title VII is
not critical to a determination of this matter. What is
material is that Gastineau thought she was being discrimi-
nated against because of her sex and the Company knew
she thought so.
It was in this context that Gastineau's termination
interview occurred . There is no question that she was taken
by Supervisor Shields to the office because she told him that
she refused to do an assigned job unless she was paid the
same as the men doing the work. During this interview
James did in fact ask her either to resign or to sign a
statement to the effect that she was refusing to perform an
assigned job. During this interview she did in fact say that
she had filed a sex discrimination charge with the Wage and
Hour Division after that subject was brought up by James.
Whether Gastineau told of having filed the charge prior to
being discharged or afterward does not particularly matter.
What matters is that Gastineau was discharged because
she refused to perform a job assignment. This fact cannot
be taken in a vacuum but must be considered in light of a
total situation . She refused to perform the rougher job to
protest lack of equal pay and the Company's principals
knew this.
Gastineau 's activity in refusing to perform the rougher
job was tantamount to a work stoppage in support of a
legitimate grievance - lack of equal pay for equal work.
Such activity - a work stoppage in support of a
grievance concerning conditions of employment - is
protected , absent a showing of substantial actual harm to
the Company . E.g., Plastilite Corporation, 153 NLRB 180
( 1965);-American Truck Stop, Inc., 218 NLRB 1038 (1975).
It should be noted that Gastineau did not refuse to do her
usual ripsaw job, and was always willing to perform it. The
refusal to do the rougher job was scarcely harmful to the
Company , and I find was protected activity under Section 7
if it is also concerted.
The question therefore is whether Gastineau 's rather
individual act was as a matter of law concerted . It is my
conclusion that it was. Gastineau was attempting to
vindicate the rights of women employees of Respondent
under Title VII of the Civil Rights Act. Thus, even though
she was acting alone at the time that she engaged in the
work stoppage, as a matter of law it is concerted activity.
This was more than simply an individual concerned with an
individual matter . As part of her ongoing determination to
seek for all women at the plant equal pay for equal work,
Gastineau engaged in a work stoppage for which she was
discharged.
The Board has held that an individual who protests his
employer's noncompliance with a Federal statute "is
engaged in concerted activity for the mutual aid and
protection of the employer 's employees similarly situated."
G. V.R. Inc., 201 NLRB 147 (1973).
2. The other 8(axl) violations
The General Counsel also alleged interrogation concern-
ing employees' protected concerted activity and creation of
the impression of surveillance of that activity . The allega-
tions of interrogation concern James Dawson's conversa-
tion with Gastineau on January 22, when he returned from
the unemployment compensation hearing ; and Gary Daw-
son's conversation with Gastineau when she told him of
certain grievances she had on January 26. The creation of
impression of surveillance is alleged to have occurred
during the termination interview on February 13.
While the statements of James and Gary Dawson may
have been "interrogation" in the broadest sense of the
word, they contained no threat . There was no real pattern
of employer hostility. There was nothing in these state-
ments which reasonably could be taken as a determination
on the part of the Dawsons to seek information in order to
take action against employees. These conversations oc-
curred in a casual context . Gastineau was the moving force
on January 26.
There is no evidence that the alleged "interrogations"
inspired fear . Given in these circumstances I conclude that
however the conversations are characterized , they were not
coercive in light of the surrounding circumstances and were
not, therefore, violative of Section 8(axl). Blue Flash
Express, Inc., 109 NLRB 591 (1954). To conclude otherwise
would be tantamount to concluding that at no time can a
representative of management discuss anything related to
wages, hours, and other conditions of employment with an
employee.
Finally, there is simply nothing even in Gastineau's
version of the termination interview which would lead to
the conclusion that Dawson created the impression of
surveillance of employees' protected concerted activities. I
therefore will recommend that the complaint be dismissed
insofar as it alleges interrogation and creation of the
impression of surveillance.
CONCLUSIONS OF LAW
1. Dawson Cabinet Company, Inc., is an employer
engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by
discharging Lois Gastineau on February 13, 1976 , because
she had engaged in concerted activity protected by Section
7 of the Act.
DAWSON CABINET COMPANY 293
3. Respondent did not violate Section 8(a)(1) by inter-
rogation on January 22 and 26, or by creating the
impression of surveillance of employees' concerted activity
on February 13, 1976.
4. Respondent's unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
REMEDY
Having found that Respondent has engaged in the unfair
labor practice set forth above, an order will be recommend-
ed that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. Respondent will be ordered to reinstate Lois Gasti-
neau to her former job or, if that job no longer exists, to a
substantially equivalent position of employment, and to
make her whole for any loss of wages and other benefits she
may have suffered as a result of the discrimination against
her in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950); and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Based upon the foregoing findings of fact, and conclu-
sions of law, the record as a whole and in accordance with
Section 10(c) of the National Labor Relations Act, I hereby
issue the following recommended: i
ORDER
The Respondent, Dawson Cabinet Company, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise interfering with, restraining,
or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Lois Gastineau immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges and make her whole
for any loss of earnings in the manner set forth in the
section of this Decision entitled "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, timecards,
personnel records and reports and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this Order.
(c) Post at its Carterville, Missouri, facility copies of the
attached notice marked "Appendix."2 Copies of said notice
on forms provided by the Regional Director for Region 17,
after being duly signed by the Respondent's authorized
representative, shall be posted by it immediately upon
receipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
The complaint in all other respects is hereby dismissed.
1 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
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, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
2 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 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
POSED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the right to
participate, it has been found that we have engaged in
certain conduct in violation of the National Labor Rela-
tions Act. In order to remedy that conduct we are posting
this notice and we are giving our assurance to employees
that we will not interfere with the rights that they have and
that they do have the following rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection, and
To refrain from any or all these things.
WE WILL NOT discharge or in other manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate reinstatement to Lois
Gastineau to her former job or, if that job no longer
exists, to a substantially equivalent job, and make her
whole for any loss of wages or other benefits as a result
of the discrimination against her plus interest.
DAWSON CABINET
COMPANY, INC.