Flav-O-Rich, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1992

309 N.L.R.B. 262 (N.L.R.B. 1992)

262
309 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent Job Shop has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s 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.
1 All dates herein are 1990 unless otherwise indicated.
Flav-O-Rich, Inc. and Finley’s, Inc. d/b/a The Job
Shop, joint employers and Gary Smith. Case 9–
CA–28519
October 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 16, 1992, Administrative Law Judge Don-
ald R. Holley issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.
Respondent Finley’s, Inc. d/b/a The Job Shop (Re-
spondent Job Shop) filed limited cross-exceptions, a
supporting brief, and a response to the General Coun-
sel’s exceptions.
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 exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions 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 Respondents, Flav-O-Rich, Inc., Lon-
don, Kentucky, and Finley’s, Inc. d/b/a The Job Shop,
London, Kentucky, their officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Linda B. Finch, Esq., for the General Counsel.
Mark A. Smedal, Esq. (Alagia, Day, Marshall, Mintmire &
Chauvin), of Louisville, Kentucky, for Respondent Flav-O-
Rich.
Timothy R. Coleman, Esq. (Jackson & Kelly), of Lexington,
Kentucky, for Respondent The Job Shop.
Sherry Brashear, Esq., of Harlan, Kentucky, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon an
original charge filed in the captioned case by Gary Smith, an
individual, on May 3, 1991, the Acting Regional Director for
Region 9 of the National Labor Relations Board issued a
complaint on June 17, 1991, which alleged, as amended, that
Flav-O-Rich, Inc. (Respondent Flav-O-Rich) and Finley’s
Inc., d/b/a The Job Shop (Respondent Job Shop) are joint
employers and they violated Section 8(a)(1) and (3) of the
National Labor Relations Act on December 19, 1990,1 by
terminating Smith’s employment at Respondent Flav-O-Rich,
because he engaged in union activity, and by threatening to
refuse him referral to available employment if he engaged in
union activity in the future. Respondents filed timely answer
denying that they were joint employers and denying that they
had engaged in any unfair labor practices.
The case was heard in London, Kentucky, on November
20, 1991. All parties appeared and were afforded full oppor-
tunity to participate.
On the entire record, including consideration of
posthearing briefs filed by the parties, and from my observa-
tion of the demeanor of the witnesses who appeared to give
testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Flav-O-Rich, a corporation, is engaged in the
processing, bottling, and sale of milk and related products at
London, Kentucky. During the 12-month period preceding
issuance of the complaint, it purchased and received at its
London, Kentucky facility products, goods, and materials
valued in excess of $50,000 directly from points outside the
State of Kentucky. Upon these admitted facts, I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Respondent Job Shop, a corporation, is engaged in the op-
eration of an employment service in London, Kentucky. Dur-
ing the 12-month period preceding issuance of complaint, it
provided services valued in excess of $50,000 for other non-
retail enterprises within the State of Kentucky, including Re-
spondent Flav-O-Rich, each of which, in turn, meet the
Board’s standards for assertion of jurisdiction over nonretail
enterprises. Upon these admitted facts, I find that Respondent
Job Shop is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Teamsters Local 783, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Job Shop is an entity which supplies other
companies and individuals with workers. Its owner, Christine
Finley, indicated that referrals fall into three basic categories.
The first is one wherein a company contacts the placement
agency to request that individuals be sent to them for inter-
view for a permanent job. Qualified individuals are sent to
such companies, and if one meets their requirements, he or
she is hired. The company or the employee pays Respondent
Job Shop a fee for the service. The second category is one
wherein a temporary employee is requested. Respondent Job
Shop selects an employee whom it feels can perform the
263FLAV-O-RICH, INC.
work to be accomplished and sends him or her to the com-
pany. While Respondent Job Shop determines the wages and
benefits the employee will receive, the hourly rate for the
employee’s service is negotiated by the company and Re-
spondent Job Shop. The company pays Respondent Job Shop
the agreed-upon fee for all hours worked by the employee,
and Respondent Job shop pays the employee with its check.
Under this arrangement, the company is free to put the em-
ployee on its payroll after he or she has worked for 8 weeks
and no further fee or payment is due to Respondent Job
Shop. The third classification is one wherein a company or
an individual requests that a person be referred to it for lim-
ited work. The individual referred negotiates the hourly rate
with the company or individual and remits 10 percent of the
amount received to Respondent Job Shop.
Gary Smith, the Charging Party, filed an application for
employment with Respondent Job Shop in early 1990. He,
like other applicants, thereafter participated in a one-on-one
interview and appropriate testing to permit the Job Shop to
ascertain his work capabilities, and he furnished references
which satisfied the Job Shop.
On September 7, 1990, Roger Lewis, Respondent Flav-O-
Rich’s operations manager, placed an order with the Job
Shop for temporary employees who could perform painting
and general laborer-type work. Before placing the order,
Lewis discussed the intended use of temporary employees
with Timothy Howell, the chief union steward at the plant.
Howell agreed temporary employees could be used as no unit
employees were on layoff and they were working as much
overtime as they desired. Respondent Job Shop referred
Smith to fill the order.
When he was referred to Flav-O-Rich, Smith remained an
employee of the Job Shop, and in return for his services he
was paid the minimum wage and was entitled to the limited
benefits accorded its employees by the Job Shop. The Job
Shop required Smith to maintain time records which he sub-
mitted to it periodically to enable it to calculate his wages
and the amount it should charge Flav-O-Rich. The record re-
veals that the Job Shop charged Flav-O-Rich about $2.50 per
hour more than it paid Smith’s for his services. As indicated,
supra, after the assignment had lasted 8 weeks or more, Flav-
O-Rich was free to put Smith on its payroll and no further
moneys would be due to the Job Shop. If it took such action
before 8 weeks had passed, the Job Shop was entitled to a
referral fee.
Smith enjoyed working at Flav-O-Rich and he soon started
to seek permanent employment there. The Union’s business
agent, Ron Abshire, testified that after Smith had been at the
plant about 30 days, several employees discussed with him
the advisability of requiring Smith to join the Union as the
collective-bargaining agreement contained a union-security
clause requiring employees to join and remain members of
the Union as a condition of employment within 31 days of
their hire. Abshire indicated he advised against causing
Smith to join the Union at the time of the described con-
versation because the contract also contained a 60-day proba-
tionary period clause and thus the contract would not argu-
ably protect Smith from termination even if he did join the
Union.
It is uncontested that during the period extending from
September 7 to mid-December 1990, two openings in the
Flav-O-Rich cooler room were experienced. When the first
opening occurred and was posted for bidding pursuant to the
bargaining agreement, Smith asked Lewis if he could bid the
job. Lewis informed him he could not because he was not
in the bargaining unit. When the second opening occurred
about a week later, the job was not posted. Smith again
sought the job and he was afforded an opportunity to fill out
an application for employment at Flav-O-Rich. The record
suggests the job was not filled.
As Smith’s temporary assignment at the Flav-O-Rich plant
continued, he received his work instructions from Bob
Lawson, the plant engineer. On one occasion, Lawson called
Smith to his office where he informed him that Roger Lewis
had observed him in the parking lot during working hours.
When he was told that was unacceptable behavior, Smith
claimed he was in the parking lot to give his time records
to his wife so she could take them to the Job Shop. The fol-
lowing day, Lawson informed Smith he was to cease taking
his breaks in the dairy room and was to take them, instead,
in the Flav-O-Rich breakroom. Lawson credibly testified he
took the action because Smith had been overstaying his
breaks. Lawson recalled that he brought the excessive
breaktime situation to someone’s attention at the Job Shop.
The next day, November 26, Lawson handed Smith a
‘‘Speed Memo,’’ which was placed in the record as General
Counsel’s Exhibit 4. It stated:
Effective this date you are instructed to:
Be sure to arrive at work station promptly at 8:00
AM.
Take 1st break at 10:00 AM to 10:15
Take Lunch at 12:00 to 12:30
Take 2nd break at 2:00 PM to 2:15
Breaks are to be taken in plant employee breakroom
only.
Lawson credibly testified that Flav-O-Rich utilizes formal
disciplinary forms rather than ‘‘Speed Memos’’ to discipline
its employees for company rules infractions.
Smith testified, without contradiction, that he was laid off
by Respondent Flav-O-Rich during Thanksgiving week (No-
vember 19 through 23) and that he was then informed by
Lawson that he would also be laid off during the Christmas
and New Year’s holidays from December 24 until January 2,
1991.
Lawson testified that on Monday, December 17, Lewis
told him Smith’s work was winding down and that Friday
would be his last day. He claimed he relayed the information
to Smith. Smith denied Lawson’s claim, but Timothy How-
ell, the Union’s chief steward, credibly testified that on Mon-
day or Tuesday, December 17 or 18, Smith told him he had
been informed that the coming Friday would be his last day,
and he asked him what he might do to save his job. Howell
testified he discussed the situation with Abshire and they de-
cided they might save Smith’s job by having him sign a
checkoff authorization as he had worked at the plant in ex-
cess of 60 days. Pursuing that plan, Howell caused Smith to
sign a checkoff authorization at about 4:30 p.m. on Wednes-
day, December 19. Howell took the executed card to Roger
Lewis’ office and gave it to the operations manager. He testi-
fied that when he gave the card to Lewis that Lewis stated,
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Lewis admitted during his testimony that Respondent Flav-O-
Rich called the Job Shop to terminate Smith’s assignment, but he
supplied only sketchy details. Thus, after claiming that Smiths en-
gagement in union activities had nothing to do with the decision to
terminate his assignment, he stated he thought he talked to Pam at
the Job Shop and ‘‘The discussion went on that Gary was wanting
to join the union over there and he didn’t work for us. Was they
aware that he was trying to join the union, and that he did—he
wasn’t employed by us, he was employed by them.’’
3 On November 20, Smith was referred to a 2-hour job at C. G.
Designs.
‘‘We told him that Friday’s his last day. We don’t have a
position for him. The job’s done.’’
Smith credibly testified that when he reached his home,
which was about 35 miles from the Flav-O-Rich plant, on
Wednesday evening, a brother and his mother both informed
him they had spoken with a lady from Respondent Job Shop
who had told them that this assignment at Flav-O-Rich was
over and he should not report for work the following day.
Lewis admitted Flav-O-Rich terminated Smith’s assignment
at its facility, but refrained from supplying any details.2 Job
Shop Manager Jones claims she documented on Respondent
Job Shop Exhibit 1 a December 18 call from Lewis in which
he informed her Smith’s assignment would end December
19. As Howell, Lawson and Lewis all credibly testified that,
as of December 17 or 18, the date set for the termination of
Smith’s’ Flav-O-Rich assignment was Friday, December 21,
I do not credit the described Jones’ testimony, nor do I ac-
cord any weight to Respondent Job Shop Exhibit 1. The fac-
tual chronology causes me to conclude and find that Lewis
called the Job Shop to terminate Smith’s Flav-O-Rich assign-
ment immediately after Howell gave Lewis Smith’s executed
dues checkoff authorization on Wednesday, December 19.
On Thursday, December 20, Smith arrived at the Flav-O-
Rich plant at about 7:30 a.m. He discussed his situation with
Claude Gilbert, the garage steward. When Lewis arrived
around 8 a.m., Gilbert and Smith went to his office. Gilbert
observed Smith had worked at the plant more than 60 days,
and he urged Lewis to put him on the payroll. Lewis indi-
cated that Smith worked for the Job Shop rather than for
Flav-O-Rich and informed Gilbert and Smith, in any event,
he had no job openings for Smith. Gilbert predicted a griev-
ance would be filed and Lewis responded by saying, ‘‘What-
ever.’’
After leaving Flav-O-Rich on December 20, Smith went to
the Job Shop offices. Kathy Jones, Job Shop’s general man-
ager, was talking to someone on the phone when Smith ar-
rived. Smith and Jones both sought to describe what was said
and done in the Job Shop office that morning. Jones was
quite evasive and argumentative when describing what hap-
pened. Smith’s version, which is felt to be more reliable, is
as follows. He testified Jones was apologizing to some male
on the phone when he arrived and that when she concluded
the conversation, she remarked that Roger was ‘‘pissed off’’
and she was too. He recalled that Jones told him he was not
a Flav-O-Rich employee; that he worked for the Job Shop
and he had no business trying to join the Union or be part
of any union while he worked for the Job Shop. He testified
Jones told him if he ever tried to join a union or be part of
one again, he would be fired from the Job Shop and not
work for anybody else in London again. At some point,
Smith testified he told Jones he had just been doing what the
union stewards told him he could do; that they told him he
had worked his days and he could join the Union and be put
to work at Flav-O-Rich. He claims the conversation ended
with Jones stating she would talk to Roger again after he had
cooled off.3
On Friday, December 21, Smith testified he went to the
Flav-O-Rich plant to get Lawson to sign his time records for
that week. Smith claims that during the conversation Lawson
told him if he had signed a union card, he would not be
coming back to Flav-O-Rich. Lawson denied that he made
the comment. Noting he no longer worked for Flav-O-Rich
at the time of the hearing, I credit Lawson.
On or about December 26, Smith was referred by the Job
Shop to a permanent position at L & C Carpet. He worked
there at a salary of $150 per week until late February or
early March 1991. After Smith quit the L & C Carpet job,
he was referred to a temporary job at Kerns Bakery. At some
point after he had been at Kerns for over 8 weeks, he be-
came a permanent employee. At the time of the hearing,
Smith was unemployed.
The record reveals that Flav-O-Rich has utilized 40–45
temporary employees supplied by the Job Shop at various
times. It has never placed a Job Shop temporary on its pay-
roll. With specific regard to the painting and general laborer-
type work performed by Smith, the record reveals Flav-O-
Rich created a building and ground maintenance position in
late February or early March 1991 and the incumbent of the
position, who came from the bargaining unit, performed
painting and laborer-type work. The record further reveals
that for a period of 3 weeks in August 1991, Flav-O-Rich
utilized several temporary employees supplied by the Job
Shop to perform painting and laborer-type work. The record
does not reveal whether Smith was available and was seeking
referral by the Job Shop in August 1991.
B. Discussion and Conclusions
1. The joint employer contention
The complaint alleges, and General Counsel contends, that
Flav-O-Rich Rich and the Job Shop constitute a joint em-
ployer. I find the contention to be without merit for the rea-
sons set forth below.
Factors to be considered in resolving joint employer issues
are found in Laerco Transportation, 269 NLRB 324, 325
(1984), where the Board stated:
The joint employer concept recognizes that two or
more business entities are in fact separate but that they
share or codetermine those matters governing the essen-
tial terms and conditions of employment. Whether an
employer possesses sufficient indicia of control over
petitioned-for-employees employed by another em-
ployer is essentially a factual issue. To establish joint
employer status there must be a showing that the em-
ployer meaningfully affects matters relating to the em-
ployment relationship such as hiring, firing, discipline,
supervision, and direction.
The record reveals that Respondent Job Shop employs ap-
proximately 165 temporary employees and 11 permanent
staff members. As indicated, supra, it obtains such employees
by accepting applications, interviewing and testing applicants
265FLAV-O-RICH, INC.
and satisfying itself that the references they have provided
are satisfactory. Job Shop’s owner, Finley, indicated that,
when clients contact her firm seeking temporary workers, the
agency matches the abilities of available employees with the
work order and seeks to refer employees to the client who
can perform the work with little or no supervision. The Job
Shop negotiates an hourly rate for the services it provides
with the client, indicating to the client that it can dissolve
their relationship without paying a referral fee by placing the
temporary employee on its own payroll after the temporary
has been on the assignment for at least 8 weeks. Finley testi-
fied that when temporary employees go on an assignment,
they are given an employee manual and a benefit package
explaining to them what they can expect, what their pay is
going to be and containing instructions that they report ab-
sences, on-the-job injuries and other problems to the Job
shop.
During calendar year 1990, Gary Smith was one of many
temporary employees employed by the Job Shop. As re-
vealed, supra, he, together with several other temporary Job
Shop employees, was assigned to perform nonskilled work at
Flav-O-Rich in September 1990. Smith’s assignment at Flav-
O-Rich lasted almost 4 months. During that period, other
temporary employees were referred by the Job Shop to Flav-
O-Rich, but most only remained on the assignment for short
periods. The record reveals Smith was capable of performing
the painting and general cleaning work he was assigned to
perform and Lawson, Flav-O-Rich’s plant engineer, merely
informed the employee where he was to work on a given
day.
While the record clearly reveals that Smith, the Job Shop,
Flav-O-Rich management, and various union officials were
fully aware of the fact that Smith’s assignment to work at
Flav-O-Rich was temporary, Counsel for the General Coun-
sel contends, in effect, that the temporary assignment was
converted to a permanent assignment as Flav-O-Rich man-
agement exercised such control over Smith during the assign-
ment as to cause it to become a joint employer of the em-
ployee. Those controls or actions relied upon include: alleged
discipline of the employee; a requirement that he maintain a
Flav-O-Rich timecard; acceptance of the employee’s notifica-
tion that he would be absent; notification to the employee of
periods of layoff; and Flav-O-Rich’s termination of the em-
ployee.
As revealed supra, General Counsel claims that Lawson
disciplined Smith when he: told him on November 24 that
he had been observed in the parking lot during worktime;
when he told him on November 25 that he was to take his
breaks in the Flav-O-Rich breakroom rather than in the dairy
area; and when he presented the employee with General
Counsel’s Exhibit 4, which states his starting time, his
breaktimes, his lunch hour and specifies the place he was to
take his breaks. In my view, Respondent Flav-O-Rich, by en-
gaging in the above actions, was simply attempting to insure
that Smith would provide the services it was paying for. One
must stretch the definition of discipline to categorize the
above-described actions as a form of discipline. I find that
by engaging in the actions described, Respondent Flav-O-
Rich did not meaningfully discipline Smith as contended by
General Counsel.
With respect to the maintenance of time records, Smith
testified he followed the Job Shop’s instruction that he was
to maintain a record of his hours worked, cause a Flav-O-
Rich official to sign his document to verify its accuracy, and
he was then to submit it to the Job Shop. The Job Shop
thereafter used Smith’s information to compute his pay and
to compute the amount it charged the client. Patently, the
time records Smith prepared by using Respondent Flav-O-
Rich’s timeclock were merely time records which were used
to verify the accuracy of those kept personally by Smith. I
find that by requesting that Smith engage in the above-de-
scribed ‘‘housekeeping’’ chore, Respondent Flav-O-Rich did
not substantially seek to control Smith’s terms and conditions
of employment.
Uncontradicted evidence reveals that Respondent Flav-O-
Rich informed Smith, rather than Respondent Job Shop, that
Smith’s services were not desired during Thanksgiving week
or during the Christmas holidays. Similarly, Smith testified
without contradiction that when he did not report for work
on two occasions during his tenure at Flav-O-Rich, he re-
ported his absence to Lewis rather than to Job Shop person-
nel. Finley indicated during her testimony that matters such
as those described should have been reported to the Job
Shop. While General Counsel asserts that the failure by Flav-
O-Rich and/or Smith to make the Job Shop aware of Smith’s
absences from his Flav-O-Rich assignment substantially af-
fected the employee’s terms and conditions of employment,
I find the impact was minimal.
General Counsel caps her argument that Respondent Flav-
O-Rich exerted such control over Smith as to warrant a con-
clusion that it was his joint employer by contending the
record reveals that Respondent Flav-O-Rich was the entity
which informed Smith that he was terminated. Actually, the
record merely reveals that on Monday, before he left Flav-
O-Rich on Wednesday, December 19, Lawson simply told
Smith his assignment would end on Friday of that week.
Smith remained an employee of Respondent Job Shop when
the assignment ended. Indeed, he was referred by it to a job
of short duration on the very next day, December 20, 1990.
In sum, I find that Respondent Job Shop controls the es-
sential terms and conditions of employment of its temporary
employees, including those of Gary Smith. I further find that
the supervision and direction exercised by Respondent Flav-
O-Rich over employee Smith was limited and routine and
that it is insufficient to support a joint employer finding. See
Laerco, supra, and TLI, Inc., 271 NLRB 798 (1984).
2. The alleged 8(a)(1) violation
Having credited Smith’s claim that Kathy Jones told him
on the morning of December 20, 1990, that ‘‘he had no busi-
ness trying to join the Union or be part of any union while
he worked for the Job Shop, and if he ever tried to join or
be part of a union again he would be fired from the Job
Shop and not work for anybody else in London again
. . . .’’ I find that Respondent Job Shop, acting through
Kathy Jones, threatened not to refer an employee to available
jobs if he engaged in union activity. By engaging in such
conduct, Respondent Job Shop violated Section 8(a)(1) of the
Act, as alleged.
3. The termination issue
The complaint alleges that Respondents (as joint employ-
ers) discharged Gary Smith on December 19, 1990, because
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.
he engaged in union activities and they thereby violated Sec-
tion 8(a)(1) and (3) of the Act. The facts relating to the ter-
mination of Smith’s Flav-O-Rich assignment are summarized
below.
Lewis testified he told Lawson on Monday, December 17,
that Smith’s work was winding down and that Friday would
be his last day. Lawson conveyed the information to Smith.
Smith then told union steward Howell that Friday was to be
his last day, and he asked Howell if the Union could help
him save his job at Flav-O-Rich. Howell and Union Business
Agent Abshire decided that, as Smith had worked longer
than the contractual probationary period, Lewis might put
him on the payroll if he was presented with a dues-checkoff
authorization signed by Smith. Howell caused Smith to exe-
cute a dues-checkoff authorization at the end of the day shift
on Wednesday, December 19, and he delivered it to Lewis.
Lewis informed Howell that Smith was an employee of the
Job Shop—that he had no job for him. Before Smith got
home from work on Wednesday, December 19, someone
from the Job Shop had contacted his brother and his mother
leaving a message that his assignment at Flav-O-Rich was
over, and he should not report for work there the next day.
I have found, supra, that an inference that Lewis phoned the
Job Shop to terminate Smith’s Flav-O-Rich assignment im-
mediately after Howell delivered the executed dues-checkoff
authorization is warranted.
While the above facts reveal that Smith’s Flav-O-Rich as-
signment was terminated by Lewis 2 days before it was
scheduled to end on Friday, December 21, 1990, those facts
do not establish that Smith was discharged on Wednesday,
December 19, because the discharge allegation was bottomed
upon a contention that Flav-O-Rich and the Job Shop con-
stitute a joint employer, and I have found that contention to
be without merit. Although General Counsel did not contend
that Respondent Flav-O-Rich violated Section 8(a)(1) and (3)
by causing Respondent Job Shop to terminate Smith’s as-
signment at the Flav-O-Rich facility 2 days early because the
employee engaged in union activity at Flav-O-Rich in an at-
tempt to prolong his assignment and/or obtain permanent em-
ployment there, the circumstances surrounding Smith’s exit
from Flav-O-Rich were fully litigated by the parties. In my
view, those facts compel a conclusion that Lewis caused the
Job Shop to end Smith’s Flav-O-Rich assignment on
Wednesday, December 19, rather than on Friday, December
21, because Smith engaged in union activities in an attempt
to avoid having his Flav-O-Rich assignment end on Friday,
December 21, 1990. Having reached such a conclusion, I
find that by ending Gary Smith’s Flav-O-Rich assignment
because the employee engaged in union activity, Respondent
Flav-O-Rich violated Section 8(a)(1) of the Act. While the
record reveals that an agent of Respondent Job Shop actually
contacted Smith’s relatives to inform them the Flav-O-Rich
assignment had been terminated, it fails to affirmatively re-
veal that any Job Shop official was aware on Wednesday
evening, December 19, 1990, that Respondent Flav-O-Rich
was requesting that the assignment be terminated because
Smith had engaged in union activity. In the absence of such
a showing, I find that counsel for the General Counsel has
failed to establish, prima facie, that Respondent Job Shop
terminated either Smith’s employment or his assignment at
Flav-O-Rich in violation of Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent Flav-O-Rich and Respondent Job Shop are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent Flav-O-Rich and Respondent Job Shop do
not constitute a joint employer within the meaning of the
Act.
4. By requesting that the Job Shop end Gary Smith’s as-
signment at its facility because he engaged in union activity
while assigned to such work, Respondent Flav-O-Rich vio-
lated Section 8(a)(1) of the Act.
5. By telling Gary Smith that he could not join a union
while employed by it, and by telling him he would not be
referred to available work or work for anyone in London,
Kentucky, if he joined a union, Respondent Job Shop vio-
lated Section 8(a)(1) of the Act.
6. The Respondents have not violated the Act except as
expressly found herein.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, it shall be recommended that they be
ordered to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the
Act.
Having found that Respondent Flav-O-Rich caused Re-
spondent Job Shop to terminate employee Gary Smith’s as-
signment at its plant on Wednesday, December 19, 1990,
rather than on Friday, December 21, 1990, because Smith en-
gaged in union activity, it is recommended that Respondent
Flav-O-Rich be ordered to make Smith whole for the losses
he sustained because of the discrimination practiced against
him, less interim earnings, with interest to be computed in
the manner prescribed in New Horizons For the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
A. The Respondent, Flav-O-Rich, London, Kentucky, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating the assignments of temporary employees
because they engage in union activities to avoid termination
of their temporary assignments.
(b) 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) Make employee Gary Smith whole for losses he sus-
tained because of the discrimination practiced against him,
267FLAV-O-RICH, INC.
5 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.’’
6 See fn. 5.
with interest, as set forth in the remedy section of this deci-
sion.
(b) Notify Respondent Job Shop and employee Gary
Smith, in writing, that Flav-O-Rich will accept Gary Smith
as a temporary employee if he is referred to it in the future.
(c) Post at its facility in London, Kentucky, copies of the
attached notice marked ‘‘Appendix A.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, Finley’s Inc., d/b/a The Job Shop,
London, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees by telling them they cannot
join a union while employed and that they will be denied re-
ferral to available work if they join a union.
(b) 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) Post at its facility in London, Kentucky, copies of the
attached notice marked ‘‘Appendix B.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
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.
WE WILL NOT terminate the assignments of temporary em-
ployees because they engage in union activities to avoid ter-
mination of their temporary assignments.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make employee Gary Smith whole for losses he
sustained because of the discrimination practiced against him,
with interest.
WE WILL notify Respondent Job Shop and employee Gary
Smith, in writing, that
WE WILL accept Gary Smith as a temporary employee if
he is referred to us in the future.
FLAV-O-RICH, INC.
APPENDIX B
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.
WE WILL NOT threaten employees by telling them they
cannot join a union while employed and that they will be de-
nied referral to available work if they join a union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
FINLEY’S INC., D/B/A THE JOB SHOP