Florida Tile Co.

National Labor Relations Board - Board Decisions

Nov 21, 1990

300 N.L.R.B. 739 (N.L.R.B. 1990)

739
300 NLRB No. 89
FLORIDA TILE CO.
1 The Respondent has excepted to some of the judge’s credibility 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s finding that Benjamin J. Deleski’s discharge vio-
lated Sec. 8(a)(3) of the Act, we note that the judge found discriminatory mo-
tivation in part based on the evidence that the discharge occurred the day after
the Union engaged in handbilling at the Respondent’s premises. We are satis-
fied that, in drawing this inference, the judge implicitly discredited testimony
by the Respondent’s officials that the discharge decision occurred on the day
before the handbilling but was not implemented until 2 days later. Although
the judge also relied on evidence that the Respondent failed to follow its pro-
gressive disciplinary system in discharging Deleski, the Respondent has argued
that the circumstances giving rise to Deleski’s discharge were comparable to
the other instance in which it allegedly fired an employee without adhering
to its extensive system of conferences and written warnings. We reject this ar-
gument because the record shows that the prior incident concerned an em-
ployee who the Respondent, on opening the plant involved here, quickly dis-
charged for poor attitude and lack of cooperation.
3 Backpay will be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950).
Florida Tile Company and International Union of
Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO. Case 10–CA–
24224
November 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On January 22, 1990, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 to modify the remedy,3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Florida Tile Company,
Shannon, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Mary Bulls, Esq., for the General Counsel.
John Breckenridge, Esq., of Tampa, Florida, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on November 16, 1989, at Rome,
Georgia. The hearing was held pursuant to a complaint
issued by the Acting Regional Director for Region 10 of the
National Labor Relations Board (the Board). The complaint
is based on an amended charge filed on July 12, 1989, by
International Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO (the Charging Party
or the Union), on July 3, 1989. The complaint alleges that
Florida Tile Company (the Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act (the Act)
by discharging and failing and refusing to reinstate its em-
ployee Benjamin J. Deleski because of his engagement in
concerted activities and also violated Section 8(a)(1) of the
Act by unlawfully interrogating its employees and by re-
stricting Deleski from a portion of the plant while the Union
was engaged in an organizational campaign. Respondent by
its answer of August 25, 1989, has denied the commission
of any violations of the Act.
Upon the entire record in this proceeding, including my
observations of the witnesses who testified herein, and after
due consideration of the briefs filed by the General Counsel
and counsel for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find, that
the Respondent was, and has been at all times material here-
in, a Florida corporation with an office and place of business
located at Shannon, Georgia, where it is engaged in the man-
ufacture of floor tile; that during the calendar year preceding
the filing of the complaint, a representative period of all
times material herein, it sold and shipped from its Shannon,
Georgia facility finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia, and that Respondent is, 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.
B. The Labor Organization
The complaint alleges, Respondent admits, and I find that
the Charging Party Union is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In April 1989, the Union commenced an organizing cam-
paign at Respondent’s plant in Shannon, Georgia. Benjamin
J. Deleski, the alleged discriminatee herein, testified that he
initiated the campaign by calling the Union’s office and that
they gave him authorization cards to be signed by interested
employees whereupon he and other employees solicited sig-
natures of their fellow employees at the plant. During the pe-
riod from April to June 8 when Deleski was discharged by
Respondent, he carried the cards in his shirt pocket and
openly solicited his fellow employees in the breakroom.
Deleski was hired by Respondent in January 1987 as a
palletizer and was promoted to assistant audit laboratory
technician 1-1/2 years later. The Respondent operates shifts
7 days a week. The shifts normally consist of four 10-hour
days. Deleski was employed on the C shift where he worked
from 6:30 p.m. to 4:30 a.m., 4 days per week. In the spring
of 1989, Deleski had received no disciplinary action with the
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exception of a single warning for attendance on his record
which had been issued in June 1988. Respondent uses a sys-
tem of ‘‘conferences’’ wherein its supervisors have a con-
ference with an employee for a number of offenses such as
absenteeism, tardiness, production, and attitude. These con-
ferences are sometimes oral and sometimes in writing and
given to the employee which he is asked to sign and are doc-
umented in writing by the supervisor whether they are oral
or written. If an employee receives three conferences, he is
given a written warning which is placed in his file. If an em-
ployee receives three warnings in a year’s period, he is dis-
charged. There are a number of offenses for which an em-
ployee may be issued three warnings prior to his discharge
such as work performance and attitude and this procedure is
normally followed by Respondent prior to discharging its
employees.
In May 1989, Quality Control Supervisor Annett Cross
issued Deleski a conference for failing to stop several boxes
of defective tile in his position as a quality control inspector.
Cross testified that Deleski became upset with her when she
issued him the conference, slammed it down on a table refus-
ing to sign it as requested, and left the room slamming the
door. Cross had only since May 1 become the supervisor of
the quality control inspectors when she was transferred from
her position of production supervisor. As Cross worked the
day shift and Deleski worked the night shift with another
employee, Deleski worked without direct supervision al-
though Production Supervisor Dante Flujello was in charge
of the production employees on the night shift. Cross also
testified that the night shift of quality control inspectors was
short-handed and it had been necessary to require Deleski
and a day-shift employee to work five 10-hour shifts to cover
for the employee shortage but that management had told
these two employees that they would not be required to work
the overtime after mid-May. A new employee had been hired
to train for the position of inspector but the training consisted
of a 5-week training course and the new employee had been
in training for only 2 weeks. Cross testified that she was
asked by Deleski to bring the new employee on line to the
night shift in order that Deleski could return to his normally
assigned work hours and that Deleski told her the new em-
ployee could hold onto his belt loop indicating he would
monitor him closely and assist him. With this assurance, she
brought the new employee on line to the night shift with
Deleski and permitted Deleski to return to his normal hours.
Cross testified, however, that she received reports from night
shift supervisors and from the employee that the employee
was slowing production as he was unsure of himself and that
Deleski was not providing any assistance to him. Cross testi-
fied she reported the incident concerning Deleski’s reaction
to the conference she gave him and concerning Deleski’s
failure to assist the new employee assigned to the shift as he
had promised to do to Assistant Plant Manager Al Sucre.
Sucre was aware of this by May 15, 1989. However, Sucre
testified he took no action on this until June 6, 1989, when
he asked to see Plant Manager John Smith at which time he
recommended the termination of Deleski because of his un-
cooperative attitude and that Respondent bypass its normal
progressive discipline system of giving three warnings to an
employee in a 12-month period before discipline is imposed
as he did not believe that the warnings would be effective
in improving Deleski’s attitude. Sucre testified that he had
previously observed Deleski’s uncooperative attitude and
Plant Manager Smith testified that he also had personally ob-
served Deleski’s uncooperative attitude and agreed with
Sucre’s recommendation that Deleski be discharged. Smith
testified that he then called in Administrative Manager Frank
Shropshire who also serves as personnel manager and that
they reviewed the case with Shropshire who urged that
Deleski not be discharged as this was not in accordance with
Respondent’s policy of issuing three warnings to an em-
ployee before discharging him. The meeting occurred on
Tuesday, June 6, 1989, after the start of the shift to which
Deleski was assigned. Sucre testified that he did not impose
the discharge on June 6, 1989, as it would have interrupted
the shift and that Deleski was off the next day, Wednesday,
and that he therefore waited until Deleski reported on Thurs-
day, June 8, 1989, at the start of the shift to impose the dis-
cipline. According to Deleski, Sucre called him into his of-
fice and told Deleski he was being discharged as he did not
fit into Respondent’s plans and Sucre merely repeated this
statement when Deleski inquired as to the reason for the dis-
charge. Supervisor Cross testified she had not recommended
to Sucre that any discipline be taken against Deleski and had
no role in the discharge. Sucre testified that Cross was a
weak supervisor and this is why he had personally taken the
lead in recommending the discharge and imposing it. He also
testified that on at least one other occasion, Respondent dis-
charged an employee for an uncooperative attitude prior to
the issuance of three warnings to him. Plant Manager Smith
and Sucre testified that they only initially learned of
Deleski’s involvement with the Union after the meeting of
June 6 but prior to their imposition of the discharge on June
8 from Shropshire who learned of Deleski’s involvement
from another employee on the evening of June 7 but that this
did not change their decision.
Deleski testified to an occasion when another employee,
Gary Smith, asked him in early May in the presence of sec-
ond shift Production Supervisor Dante Flujello where the
union meeting was that evening. Smith corroborated this tes-
timony which was unrebutted by Flujello. Smith testified fur-
ther that near the end of May, Flujello asked Smith how
many cards (union) they had and what kind of support the
Union had. This testimony was also unrebutted by Flujello.
Smith had not been a known union advocate.
Deleski also testified that in mid-May, Flujello told him
not to walk alongside the paint spraying booths and talk to
the employees as the union business was going on. Deleski
had not been previously so restricted. Flujello testified he is
not sure whether or not he made these comments as the
union campaign was common knowledge, but that he was
merely attempting to keep Deleski from interfering with the
work of the employees assigned to the spray painting. Re-
spondent demonstrated also that there was no work reason
for Deleski to walk alongside the employees engaged in
spray painting. Deleski also testified that at his request the
Union handbilled Respondent’s employees on June 7, 1989.
Respondent also produced evidence through the testimony
of Plant Manager John Smith that during 1988 and 1989, the
Union conducted two organizational campaigns on the prem-
ises and that Respondent was aware of a number of employ-
ees who identified themselves as union supporters but that no
actions were taken against them. Smith further testified he
told the employees in the a meeting in 1988 that the Re-
741FLORIDA TILE CO.
1 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendments to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date
of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB
651 (1977).
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
spondent was opposed to the Union but that they were free
to support the Union and there would not, and could not, be
any retaliation against them for doing so and that the em-
ployees were allowed to and openly did campaign in the Re-
spondent’s lunchroom during lunch.
Analysis
I find that the General Counsel has proven a violation of
Section 8(a)(1) of the Act as the questioning by Flujello of
Smith constituted unlawful interrogation. Rossmore House,
269 NLRB 1177 (1984). I further find the evidence supports
a finding that the Respondent discriminated against Deleski
by limiting him to his work area as I find that the restriction
of Deleski by Flujello was a change from the previous unre-
stricted movement in the plant previously enjoyed by Deleski
and was motivated by Supervisor Flujello’s efforts to restrict
Deleski’s support of the Union. See Inductive Components,
271 NLRB 1448, 1471 (1984); Hall of Mississippi, 249
NLRB 775, 779 (1980). I thus find that Respondent violated
Section 8(a)(1) of the Act by the interrogation of employee
Gary Smith by Supervisor Flujello and by the restriction im-
posed on Deleski by Flujello.
I further find that the General Counsel has demonstrated
that the Respondent had knowledge of Deleski’s role as a
union supporter in the second campaign as well as in the
prior campaign. Whether or not Respondent’s management
officials were aware of Deleski’s initial contact made to the
Union to commence a second union campaign in 1989, they
were aware that he was involved with it by reason of his
open solicitation of union cards in the breakroom, the com-
ments of employee Gary Smith to Deleski in the presence of
Flujello concerning the union meeting, Flujello’s direction to
Deleski to stay off the spray line because of the union talk,
and ultimately Shropshire’s knowledge of Deleski’s partici-
pation in the union campaign the night before his discharge.
I further find that the circumstances giving rise to Deleski’s
discharge are suspect. Thus, Respondent chose to discharge
an employee who had only a single warning for attendance
currently in his file although admittedly its own policies re-
quire the issuance of three warnings for attitude or lack of
cooperation problems before the employee is to be dis-
charged. Additionally, the timing of the discharge the next
day after the Union handbilled the Respondent’s premises
gives rise to an inference that the discharge was dis-
criminatorily motivated. I also find the absence of a rec-
ommendation by Supervisor Cross that Deleski be dis-
ciplined, much less discharged to be noteworthy. I further
find that the method of discharging Deleski without warning
for no specified reason except that he did not fit into the Re-
spondent’s plans and the refusal of Assistant Plant Manager
Sucre to discuss the reasons with Deleski give rise to a find-
ing that the discharge was discriminatorily motivated. I thus
find that the General Counsel has made a prima facie case
that the discharge of Deleski by Respondent was motivated
in part by the Respondent’s disdain for Deleski’s role as a
union supporter. I also find, based on the foregoing and after
considering the testimony of Respondent’s witnesses, that
Respondent has failed to rebut the prima facie case by the
preponderance of the evidence and has failed to persuasively
demonstrate that it would have discharged Deleski in the ab-
sence of his protected activities as a union supporter. I thus
find that Respondent violated Section 8(a)(3) and (1) of the
Act by its discharge of Deleski. Roure Bertran DuPont, Inc.,
271 NLRB 443 (1984); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
CONCLUSIONS OF LAW
1. The Respondent, Florida Tile Company, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by the
interrogation of its employee concerning the union campaign.
4. Respondent violated Section 8(a)(1) of the Act by re-
quiring Deleski to stay out of the spray paint area.
5. Respondent violated Section 8(a)(3) and (1) of the Act
by its discharge of Benjamin Deleski.
6. The above unfair labor practices have the effect of bur-
dening commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, it shall be ordered to cease and
desist therefrom, and to take certain affirmative action, in-
cluding the posting of an appropriate notice, designed to ef-
fectuate the purposes of the Act. It shall also be ordered to
rescind its discharge of Benjamin J. Deleski, offer him full
reinstatement to his former position or, if his former position
no longer exists, to a substantially equivalent position, ex-
punge its files of any reference to the unlawful discharge and
advise him in writing that said unlawful discharge will not
be used in any adverse manner against him in the future and
it shall also be ordered to make Deleski whole for any loss
of wages or benefits sustained by him since June 8, 1989,
with interest, as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).1 Respondent shall also be ordered
to restore to Deleski all seniority rights and privileges up to
and since the date of his unlawful discharge.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Florida Tile Company, Shannon, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union activi-
ties or restricting its employees’ movements in the plant be-
cause of their union activities.
(b) Discharging its employees because of their engagement
in protected concerted activities on behalf of the Union.
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its unlawful discharge of employee Benjamin
J. Deleski, offer him full reinstatement to his former position
or to a substantially equivalent position, if his former posi-
tion no longer exists, and make him whole for all loss of
earnings and benefits sustained by him with interest and full
restoration of all seniority rights and privileges as set out in
the remedy.
(b) Remove from its files any reference to the unlawful
discharge and notify Benjamin J. Deleski in writing that this
has been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Shannon, Georgia, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 10,
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 in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate you concerning your union
membership, activities, or desires.
WE WILL NOT restrict you in your movements in the plant
because of your support of the Union.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the International Union of Elec-
tronic, Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Benjamin J. Deleski immediate and full re-
instatement to his former position or, if that position no
longer exists, to a substantially equivalent position without
prejudice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for any
loss of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest.
WE WILL notify Benjamin J. Deleski, in writing, that we
have removed from our files any reference to his discharge
and that the discharge will not be used against him in any
way.
FLORIDA TILE COMPANY