Flexsteel Industries

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 44 (N.L.R.B. 1994)

44
315 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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.
No exceptions were filed to the judge’s findings that the Respond-
ent solicited grievances and promised to improve the employees’
terms and conditions of employment in violation of Sec. 8(a)(1) of
the Act.
2 The judge found that the General Counsel failed to establish a
prima facie case that the Respondent discharged employee Patricia
Double because of her union activities. Even assuming that the Gen-
eral Counsel established a prima facie case of discriminatory dis-
charge, we find that the Respondent established that it would have
discharged Double even absent her union activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
1 The relevant docket entries are as follows: The unfair labor prac-
tice charge was filed by United Steelworkers of America, AFL–CIO
(the Union) on April 6, 1993, and amended on September 23, 1993.
The complaint issued on October 14, 1993, and the hearing was held
in Goshen, Indiana, on February 9, 1994.
2 All dates hereinafter refer to 1993, unless otherwise stated.
3 The Board has asserted jurisdiction over Respondent. Flexsteel
Industries, 311 NLRB 257 (1993).
4 The union withdrew its objections on February 12, 1993. Id. at
fn. 1.
5 The Union won the second election that took place on May 24
and was certified as the collective-bargaining representative on May
28.
6 The unwillingness of Respondent’s witnesses to admit to know-
ing of her union activities, in the face of uncontradicted proof of her
actions, casts doubt on their credibility. In addition, I have found
that the employees generally engaged in horseplay and have discred-
ited Respondent’s witnesses who testified to the contrary. To the ex-
tent that the General Counsel and particularly the Union attempted
to discredit various witnesses because of contrary testimony in an-
other proceeding, I have made no finding because the prior testi-
mony was never offered.
Flexsteel Industries, Inc. and United Steelworkers of
America, AFL–CIO–CLC, Upholstery Division.
Case 25–CA–22446
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On April 19, 1994, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Charging Party-Union filed exceptions and a brief, the
Respondent filed an answering brief, and the Charging
Party filed a reply brief.
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,2 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, Flexsteel Industries, Inc.,
New Paris, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Steve Robles, Esq., for the General Counsel.
Arthur D. Rutkowski, Esq. (Bowers, Harrison, Kent & Mil-
ler), of Evansville, Indiana, for the Respondent.
Chris M. Bolte, Staff Representative, of Jasper, Indiana,for
the Charging Party.
DECISION
FINDINGS OF FACT
BENJAMIN SCHLESINGER, Administrative Law Judge. Em-
ployee Patricia Double was fired on April 1, 1993, after she
threw a seat back at her assistant supervisor, Bev Hiatt, hit-
ting her in the face; and then threw a bobbin, hitting her in
the shoulder; and then threatened that, if Double had a rock,
she would have thrown that at Hiatt, too. The complaint al-
leges that the discipline meted out by Respondent Flexsteel
Industries, Inc., violated Section 8(a)(3) of the National
Labor Relations Act, 29 U.S.C. § 151, et seq. I conclude that
it did not and that, even if Double had not been a union
sympathizer, Respondent would have imposed the same dis-
cipline.1
Jurisdiction is conceded. Respondent is a corporation with
an office and place of business in New Paris, Indiana, where
it engages in the manufacture, sale, and distribution of rec-
reational vehicle equipment and related products. During the
12 months ending April 1, 1993,2 it sold and shipped from
its facility to points outside Indiana goods and products val-
ued in excess of $50,000 and purchased and received goods
valued in excess of $50,000 from points outside Indiana. I
conclude, as Respondent admits, that it is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.3 I also
conclude, as Respondent admits, that the United Steelworkers
of America, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
Double had been employed by Respondent since May 26,
1982, and had the highest seniority in her department and the
second highest in the entire facility. She was not active in
an earlier union campaign, which culminated in a Board-con-
ducted election on February 28, 1992, which Respondent
won and the Union had filed objections to.4 However, she
signed a petition for the Union (a new petition was filed with
the Regional Office on March 12, 1993) which led to a sec-
ond election5 and openly expressed her adherence of the
Union, either by speaking in favor of it, wearing a union but-
ton, or tacking a button to the top of her machine, all in open
hearing or view of Respondent’s supervisors.6 Respondent
was well aware of her sympathies.
Double was a piece worker and took evident pride in her
production which resulted in her being paid double the nor-
mal salary. Not only was she doing her job but she was mak-
ing a lot of money. And it was because she wanted to keep
making a lot of money that she got herself in trouble on
45FLEXSTEEL INDUSTRIES
March 31. She was sewing puckers into seat buckets that are
placed on frames in recreational vans. When the pieces were
measured properly, they should have been within a quarter
of an inch at each end so that any errors could be hidden
when Double did her sewing. But when the material was
leather, and was more that that amount over length, she
could not work with the material. The puckers were too long
that afternoon, and she complained to Hiatt, who took all the
seats back to other employees to get them cut correctly.
When they were returned to Double, they were still too long.
She yelled at Hiatt, who was passing by her table her, ‘‘How
the hell do you think we’re supposed to believe this has been
measured and is correct?’’
Double said that she was frustrated, but her language dem-
onstrated more anger than a sense of being discouraged. So
did her actions. She flung the piece at Hiatt; and the 5-foot
long piece, which was hinged, flopped and hit Hiatt in the
face. Double initially testified that the piece ‘‘went across the
table at her,’’ an attempt to conceal that she supplied the
force that propelled the seat. Hiatt’s complaint to Double that
she did not have to throw the seat at her was answered by
Double’s picking up a bobbin of thread and throwing it
overhand at Hiatt, hitting her in the shoulder. And, proving
that her demonstration was not an unintentional tantrum and
that she intended to hurt Hiatt, Double said that if she had
a rock, she would have thrown it, too, at Hiatt.
Respondent terminated Double. The issue is whether it did
so because Double engaged in union activities or because she
threw objects at and threatened Hiatt. There is no question
that Respondent was fully capable of acting against her be-
cause of her union activities. The Board found in its prior
Decision that Respondent committed numerous violations of
the Act in order to discourage its employees’ union support,
so there is ample reason to find that Double’s discharge was
caused by Respondent’s union animus. On the other hand, no
one disputes that Double threw objects at Hiatt and hurt her,
maybe not so much, but she would have liked to hurt her
more and would have done so had she had a rock at hand.
That is serious stuff. Hiatt, although not a supervisor within
the meaning of the Act, was nonetheless directing some of
the work that Double was dissatisfied with. When Double
was asked whether she thought it was proper for employees
to throw things at supervisors out of frustration, she made
clear that she assaulted Hiatt for the way that she supervised
the work of other employees. She answered: ‘‘That’s prob-
ably not any more right than supervisors not correcting prob-
lems that have been there for a long time and allowing the
employees to get frustrated or never to get results. Why is
that any righter?’’
Respondent claims that it cannot allow that type of behav-
ior to be lightly punished. It had rules that permitted it to
discharge Double. They provided, in part:
Some actions are totally inappropriate for the work en-
vironment because they affect the safety and well-being
of all employees or they directly, adversely impact
Flexsteel. These actions can lead to immediate dismis-
sal. The following list is not meant to be all-inclusive,
but it does contain many of the rules we want to be
sure you are aware of:
A. Insubordination—failure to carry out a reason-
able assignment from a supervisor or manager.
. . . .
I. Threatening, intimidating, coercing, or interfer-
ing with fellow associates on the premises at any
time.
Double committed acts well within the contemplation of a
threat or intimidation. Whether she was insubordinate is an-
other matter, because there was no order that Double refused
to carry out. So the grounds of her punishment might be
somewhat overextended, indicating that Respondent was out
to get Double rather than administering fair punishment. But
assault is severe, and certainly management had a right to
put an immediate stop to it.
The General Counsel’s principal case is based on disparity
of punishment, that other similar or even more severe inci-
dents were overlooked or tolerated, but his proof falls short,
even though Respondent never fully explained why it did not
give similar punishment to some of the other employees.
None of the employees who engaged in the incidents relied
on by the General Counsel attempted to harm other employ-
ees and none attempted to injure a supervisor. That employ-
ees engaged in horseplay, often throwing bobbins playfully
or to get the attention of others who were wearing personal
radios or tape players is dissimilar. That employees threw
scrap fabrics, welt cords, paper clips, balls of tape, old
gloves, and metal nuts, bolts, and washers and snapped and
shot rubber bands, although potentially dangerous, was also
playful and not intended to hurt. Other incidents involved
employees losing their temper, but no one tried to injure
some one else, particularly a supervisor. For example, em-
ployee Matt Wagner threw a wrench on the floor and the
socket came off and bounced up to the ceiling. Employee
Dennis Seffens, who was suspended for 3 days, slammed a
pair of scissors on the table, but he did not throw them at
his supervisor or another employee. Employee James Kats
merely declined to follow an order and engaged in an ‘‘un-
safe act’’ that was not aimed at harming anyone.
Double, to the contrary, deliberately attempted to hurt her
supervisor, and she did. Her acts were not at all playful. In
this respect, her conduct was not an act of profanity directed
at another employee or at a supervisor, and thus such inci-
dents, relied on by the General Counsel, are not relevant to
this proceeding. As Tom Morse, Respondent’s plant super-
intendent stated: ‘‘Because in my estimation, in the discus-
sions with Pat [Double] and Bev [Hiatt], the items were
thrown in anger, and the item was thrown by Pat. . . . It was
an anger situation unprovoked, really, by the supervisor. And
this associate threw these items at her supervisor.’’ As a re-
sult, I conclude that the General Counsel has not established
a prima facie case of discrimination for union activities that
the General Counsel must prove under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). Even if he
did, Wright Line then permits Respondent, in order to avoid
liability, to prove that it would have taken the same action
that it did, even in the absence of the union activities. Re-
spondent did so. I am persuaded that Respondent discharged
Double because of her unprovoked violence and would have
done so whether Double was a union supporter or not. I con-
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent’s 10(b) defense has no merit and is also dismissed.
The charge was filed within 6 months of the commission of the al-
leged unfair labor practice.
8 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.
9 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.’’
clude that Respondent did not violate the Act and will rec-
ommend that this allegation be dismissed.7
There are two final allegations relating to solicitation of
employee complaints and grievances and promises of in-
creased benefits and improved terms and conditions of em-
ployment. At a meeting of employees in mid-March, Morse
announced that the Union had withdrawn its objections to the
first election and had filed a petition for a new election. On
March 25, at another meeting, Ronnie Nash, Respondent’s
general manager, represented that most of the problems that
the employees had could be worked out without a union and
that the employees did not need the Union. That began a dis-
cussion by a number of employees about problems that they
had recently encountered. Some complained of applying for
vacations and having them approved, only to have that ap-
proval being taken away at the last moment. They said that,
if there were a union, that would not have happened. Morse
believed that the incidents had never happened and stated
that, if a vacation had been granted, the supervisor had no
right to take it away.
The General Counsel does not complain of that conduct,
but relies on what happened next, namely, Double’s com-
plaint that she had requested a vacation and that Respondent
had taken no action on her request, so she assumed that her
request had been denied and she went to work. Others agreed
that Respondent had failed to act promptly. Morse then stat-
ed that, once employees filed their requests for vacations,
Respondent would get the paperwork back to the employees
in 5 days and asked whether that would solve the problem.
The employees agreed that it would. Up to that point, Re-
spondent had not handled vacation requests with such dis-
patch. In the circumstances of the Union’s filing of a new
petition and Respondent’s expression that problems could be
worked out without the Union, I conclude that Respondent
solicited this grievance and promised to resolve it in order
to discourage the employees’ support of the Union, in viola-
tion of Section 8(a)(1) of the Act.
The unfair labor practices found herein, occurring in con-
nection with Respondent’s business, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing 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.
Upon the foregoing findings of fact and conclusions of law
and the entire record in this proceeding, including my obser-
vation of the demeanor of the witnesses as they testified, and
my consideration of the briefs filed by the General Counsel,
Respondent, and the Union, and pursuant to the provisions
of Section 10(c) of the Act, I issue the following rec-
ommended8
ORDER
The Respondent, Flexsteel Industries, Inc., New Paris, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting complaints and grievances from its employ-
ees and promising to improve their terms and conditions of
employment, including improving its vacation approval pro-
cedure, in order to discourage their support of the United
Steelworkers of America, AFL–CIO.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in New Paris, Indiana, copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit complaints and grievances from our
employees and promise to improve their terms and condi-
tions of employment, including improving our vacation ap-
proval procedure, in order to discourage their support of the
United Steelworkers of America, AFL–CIO.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
FLEXSTEEL INDUSTRIES, INC.