Hagerstown Kitchens

National Labor Relations Board - Board Decisions

Sep 13, 1979

244 N.L.R.B. 1037 (N.L.R.B. 1979)

HAGERSTOWN KITCHENS
Hagerstown Kitchens, Inc. and United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, Car-
penters District Council. Case 5-CA- 101 11
September 13, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 4, 1979, Administrative Law Judge Don-
aid R. Holley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a motion to strike.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, brief, and
motion and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as modi-
fied below.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
In support of its exceptions to certain credibility findings made by the
Administrative Law Judge, Respondent essentially seeks. for the first time. to
introduce into evidence the affidavit of Respondent's plant manager.
LaPalme, taken by a Board agent during the investigation of the instant
proceeding. While Respondent was aware well in advance of the hearing that
LaPalme would be unavailable to testify due to illness. it did not seek to have
the heanng postponed. Neither did Respondent attempt to depose LaPalme.
inform the Administrative Law Judge that LaPalme's absence presented any
problem, nor seek admittance of LaPalme's affidavit into evidence during the
hearing or in its brief to the Administrative Law Judge. We therefore deny
Respondent's request to consider LaPalme's affidavit and grant the General
Counsel's motion to strike said document from the record herein. Further, it
is the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponderance
of all of the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
I We find it unnecessary to consider or pass upon the Administrative Law
Judge's Decision insofar as it may imply that in the face of a valid no-
solicitation rule and absent a showing disparate application thereof an em-
ployer's disciplining of an employee for violation of such rule is unlawful
unless actual interference with production is established. See the penultimate
par. of part B of "Conclusions and Additional Findings."
In par. I(d) of his recommended Order the Administrative Law Judge
uses the broad cease-and-desist language, "in any other manner." However.
we have considered this case in light of the standards set forth in Hickrmorl
Foods, Inc., 242 NLRB 1357 (1979). and have concluded that a broad reme-
dial order is inappropriate inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for employees'
fundamental statutory rights. Accordingly. we shall modify the recommend-
ed Order so as to use the narrow injunctive language. "in any like or related
manner."
We shall further conform the notice to the recommended Order. as modi-
fied herein.
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Ha-
gerstown Kitchens, Inc., Hagerstown, Maryland, its
officers, agents. successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or relaed manner interfering with,
restraining or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
N)TICE To EMPLOYEES
POSIEI) BY ORDER OF IHE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
Wt WILL. NOT interrogate our employees con-
cerning their union activities or sentiments.
WE WIL. NOT threaten employees with bodily
harm if they engage in union activities.
WE WILL NOT discharge employees because
they engage in union activity to discourage them
from joining or assisting United Brotherhood of
Carpenters & Joiners of America. AFL CIO,
Carpenters District Council. or any other labor
organization.
WE WILL NOI in anv like or related manner
interfere with, restrain or coerce our employees
in the exercise of the rights guaranteed them hby
Section 7 of the Act.
WF Wll l offer Harold Detrich immediate rein-
statement to his former job, or, it' such job no
longer exists, to a substantially equivalent job.
without prejudice to his seniority or other rights
and privileges previously enjoyed. and WE WIl I
make him whole for any loss of earnings he may
have suffered as a result of the discrimination
against him, plus interest.
HAGERSTOWN KITCHENS, IN(.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, ADMINISTRATIVE LAW Jl) DGi:
Upon a charge filed by the United Brotherhood of Carpen-
ters & Joiners of America, AFL CIO, Carpenters' District
Council, (herein the Union). on October 19. 1978.' and an
amended charge filed on November 13 the Regional Direc-
I All dates are 1978 unless otherwise indicated.
244 NLRB No. 143
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor for Region 5 of the National Labor Relations Board
(herein the Board), issued a complaint against Hagerstown
Kitchens, Inc. (herein Respondent), on December I alleg-
ing, inter alia, that Pespondent violated Section 8(a)(I) and
(3) of the National Labor Relations Act, as amended
(herein the Act), on September 21, 1978, by interrogating
employees regarding union activities, threatening employ-
ees with physical harm if they engaged in activities on be-
half of or in support of a union, and by discharging em-
ployee Harold Detrich because of his membership in and
activities on behalf of the Union. By answer, which was
timely filed, Respondent denied that it had engaged in the
unfair labor practices alleged in the complaint.
The case was heard before me on March 29, 1979, and all
parties appeared and participated fully in the proceeding.
Respondent and General Counsel have filed post-hearing
briefs which have been carefully considered.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I. JURISDICTION
Hagerstown Kitchens, Inc., a Maryland corporation, is
engaged in the manufacture and sale of custom kitchen
cabinets at 24-1/2 West Longmeadow Road. Hagerstown.
Maryland. During the 12-month period proceeding issu-
ance of the complaint it purchased and received from sup-
pliers located outside the State of Maryland products val-
ued in excess of $50,000. It is admitted and I find that
Respondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATIONS
It is admitted and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. General Counsel's evidence
Harold Austin Detrich 2 was hired by Respondent as a
cutoff saw operator in August 1977. In this position he cut
raw stock (lumber) which was thereafter used by other em-
ployees in the construction of cabinet frames. He received
two raises while employed by Respondent, one approxi-
mately I month after he was hired and a second some 7 or
8 months later.
In mid-September 1978 Detrich contacted Ken Wade,
the Union's business agent, and shortly thereafter Wade
visited Detrich at the latter's home, where they discussed
unionization of Respondent's plant. Wade thereafter mailed
Detrich authorization cards which were to be distributed
among Respondent's employees.
2 Detrich is erroneously spelled Detrick in the complaint.
On September 20 Detrich took the authorization cards to
the plant and distributed them among a number of employ-
ees. He testified that he distributed them "between my
working my working hours of 6:30 in the morning and 4:30
in the afternoon, primarily on break, lunchtime, before I
started to work and in the parking lot] when I was leav-
ing."' Detrich testified that union agent Wade had in-
structed him not to solicit for the Union on company time,
but he knew of no company rule which prohibited employ-
ees from soliciting on company time. With regard to solici-
tation on company time he testified that "practically every
other employee out there was running around selling lottery
tickets and chances and stuff like that on company time, so
I didn't think anything about it." When asked who engaged
in such soliciting activities he identified the following indi-
viduals: Barbara Smith, an unnamed female member of a
bowling team who sold 50- 50 lotteries for her league; Char-
lie Higgins.4 who sold him chances on hams and 50 50s:
Mike Karns, who sold 50 50 chances for his stock car rac-
ing; and an unidentified person who solicited gambling on
football and baseball.
Detrich testified that shortly after 7 a.m. on September
21 Richard Young, president and owner of Respondent,
approached him and indicated that he wanted to see him in
his office.' When they arrived at the office Detrich testified
that the plant superintendent, Robert laPalme, was there.
The employee claims that Young then said. "Harold . ..
had some people phone me last night that some employees
are trying to organize a union and you have been singled
out as the ringleader." Detrich stated that his reply was
"That's a possibility." He indicated that Young continued.
"Well, as of now, you do not work for this company any
longer . . . We don't need any troublemakers around here
.... I own this company, I own this building, I own this
land ... aInd no union and no one else is going to come in
here and tell me how to run this business... And if I have
to, I'll close it down and I'll block the driveway with my
jeep and my shotgun and I hope that the ringleader is in the
front lines so I can blow his head off." Detrich testified that
he then asked if his check was ready,. and that upon being
told no he left the office and went to his machine to collect
his personal hand tools. As he left the plant Young handed
him his check.,
Detrich indicated that some people asked him for cards while he was
working at his machine, and he admitted that he ceased work momentarily
to give them cards.
4 Described by Detrich as a member of management who issued instruc-
tions to Mike Karns, Detrich's leadman or foreman.
5 Richard Young indicated during his testimony that he has and exercises
the authonty to hire and fire employees as does his Plant Superintendent
Robert LaPalme. I find that Young and LaPalme are agents of Respondent.
and that they are supervisors within the meaning of Sec. 2(11) of the Act.
b Young's version of the incident is that he asked Detrich when the) ar-
nved at the office why he was roaming around the plant passing out cards on
company time and was) not at his work station, commenting that we the
Companyl were already far enough behind in his department, and he had
been off on Monday and Tuesday. He stated that he asked Harold why, and
Harold started telling him that there was a lot of shady and underhanded
things going on in the plant, that he took it upon himself to approach the
Union, and that he was trying to see what he could do about it. Young
claims that he asked Harold Detrich to elaborate on any of these conditions.
and Detrich could not do it He claims that at that point he told Detrich he
1038
tHAGERSIOWN KITCtHENS
A short time after he was discharged by Respondent Det-
rich filed a claim for unemployment compensation with the
Maryland Employment Security Administration. Alexis
Allenback, a claims examiner with that state agency. testi-
fied as a witness for General ('ounsel. Allenback, whose
testimony was not contradicted, indicated that she conducts
fact finding investigations for claimants who are separated
from employment for reasons other than lack of work, and
that she renders a determination on their eligihility for
benefits after completing such investigation. She credibly
testified that she conducted such an investigation when
Detrich filed his claim for unemployment because he had
been fired. Specifically, she testified that she telephoned
Young at Hagerstown Kitchens, Inc., to get clarification of
the word "misconduct" which was noted by Respondent on
the separation form submitted to her agency. After reading
to Young what he had written on the separation fiorm
Allenback asked him exactly why Detrich was fired. She
testified that Young's reply was: "he was fired because he
was trying to organize a union here . . . he wvas a horn
trouble-maker." Allenback indicated that Young then in-
formed her that Detrich had filed a grievance with the Na-
tional Labor Relations Board. She claims that she then
asked, "Do you have any evidence that this employee solic-
ited cards at times other than break or lunch?". and that
Young said he had no such evidence.
During presentation of her case, counsel for the General
Counsel called Richard Young as a witness and examined
him pursuant to Section 61 I(c) of the Federal Rules of Pro-
cedure. During such examination General Counsel estab-
lished, inter alia, that Respondent does not issue written
warnings to employees, but Plant Superintendent l.aPalme
documented Detrich's work deficiencies and poor absentee
record at Young's request in a document dated November
6, indicating therein that such factors "were major factors
in my recommendation for dismissal" : that Respondent
has no written rules which prohibit solicitation on company
time;' that Young stated in an affidavit given to the Board:
"Based on my reports from Detrich's supervisors, mainly
Robert LaPalme, Detrich was terminated because of inac-
curacy of work, and Detrich was on precision cutting, and
refusal to obey instruction of his supervisor, continued ab-
sence of employment and soliciting union cards on com-
pany time"; that one of Respondent's foremen, Raymond
Valentine (deceased), appeared at Young's home during the
evening September 20 and then reported to Young that
Detrich had been passing out union cards all day, had been
had had enough of him and was not tolerating an5 more of his lying and
fired him.
Detrich was the more impressive witness, and I credit his testimony over
that of Young. In addition to the fact that Young appeared to be a forceful
individual who could be expected to make the comments attnhbuted to him
by Detrich, I note that Young's comments to Allenback. a claims examiner
with the Maryland Employment Security Administration. discussed herein-
after, also reveal the unlawful motivation for Detrich's termination.
7 See G.C. Exh. 2. See also G. C. Exh. 4, which reveals that Detrich was
absent from work some 229-3/4 hours (approximately 5 1/2 weeks) during
the II months he was employed by Respondent. The documents were pre-
pared for use in an unemployment compensation hearing.
I Young testified that employees are told when hired that the) are ex-
pected to stay at their jobs except for lunch periods and I10-minute breaks in
the morning and afternoon
in and out of the restrooms, and had been In all the other
areas passing out cards and just really slowing up prodluc-
tion": and that Young stated in his Board affidavit, " can-
not recall my conversation with Valentine specifically only
he told me Detrich had been passing out cards."
2. Respondent's evidence
Respondent presented its defense through seven em-
ployee witnesses and Richard Young. heir testimonies are
summarized below.
Employee Ella Mae Monninger testified that Detrich's
machine is located near the women's bathroom, and that
sometime in September when she was on the way to the
bathroom Detrich stopped her, gave her a union card. and
told her that he was going to try to get a union in so there
would be better benefits. She indicated that the solicitation
occurred around 8:30 atm., approximatel I hour before
her scheduled break. She testified that her understandinL
was that worktilne was for work, and she was told bh Bob
LaPalme and Dick Young. "when onur breaks were nd we
were supposed to work and not to mingle with people dur-
ing working hours." Monninger indicated during her testi-
mony that solicitations fo)r monet for flowers are conducted
in cases of employee sickness or death. but such olicita-
tions are conducted in cases of employee sickness or death.
but such solicitations are conducted during lunchbreaks or
in the bathrooms. She testified that she was not aware of
any gambling types of solicitation at the plant by Kendall.
Higgins, or others.
In support of Respondent's defense emplo\ee Arlene
Pfeiffer testified that Detrich solicited her signature on a
union authorization card while she was at her work station
at approuimatel' I I am. one morning. She indicated that
she felt this was against company rules. Additionall, IPlell-
feir testified that Detrich had told her at an unspecified time
that he had a side business making cahbinets or something
which came first and meant more to him than his job did.
During cross-examination Peiffer indicated that she had
collected money fr employees who have had a death in the
family at times other than breaks or lunch. and her supervi-
sors have not told her to retfrain from such activits. Addi-
tionally, she acknolwedged that employees sell different
types of lottery tickets in the plant at times other than
breaks or lunch.9 While this employee testified that she
would expect to be disciplined if she were caught passing
out chances on company time, no real basis for the asser-
tion was provided. Similarly. in response to a leading ques-
tion, she indicated that employee sale of lottery tickets dur-
ing working time was the exception rather than the rule."
Respondent offered testimony through employee wit-
nesses Joseph Valentine, Steven Blair. Steve Harries.
Joseph Mason. and Stella Billman to show that Detrich
solicited their signatures on union cards during working
I The witness indicated that supersisors engaged in the sale of lolers tick-
els also, but she stated that she did not rememnher them doing II during
working hours
10 Pfeiffer was obhviouslN anxious to give answers which were favosrable to
Respondent. and I attach no significant weight to her opinion testimony and
her responses to counsel's leading questins
1(39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time. Valentine testified that he saw Detrich in the men's
room with cards, asked what he was passing out, and was
then given a card by Detrich. Additionally, he testified that
Detrich came to the area where he, Blair. and Mason were
working and there gave Blair a card. In response to a lead-
ing question he indicated that in his opinion Detrich had no
reason to be away from his work area when he gave Blair a
card."'' Steven Blair testified that Detrich stopped by their
work station when he was returning from break and gave
them cards." Blair indicated during his testimony that con-
tributions for flowers are solicited from employees while
they are at their work stations. He acknowledged that raffle
tickets and other chances are sold at the plant. Harries tes-
tified that Detrich handed him a union card at an undis-
closed location at about 6:03 a.m. one day. He indicated
that he has observed employees selling various raffel tickets
and lottery tickets at the plant in the restrooms intermit-
tently throughout the workday. On one occasion he pur-
chased a chance on a ham from Higgins, whom he de-
scribed as a supervisor. Mason testified that he received a
union card from Blair and gave it to Detrich when the latter
approached him. Valentine, and Blair at their work area
when they were returning from break. Mason, a very forth-
right witness who no longer works for Respondent, testified
that he knew of no company rule concerning solicitation on
company time while he worked for Respondent. He verified
the testimonies of other employees which reveal that flower
collections are made during working time, and he testified
that solicitation for lotteries and chances on hams were con-
ducted throughout the day on the work floor. He provided
specifics by indicating that Raymond Valentine, the de-
creased supervisor, conducted a payday type of lottery and
collected the money just before quitting time; by indicating
that he purchased a football chance from Supervisor lig-
gins once or twice; by stating that George Carter, a truck-
driver, sold him chances on whiskey during both worktime
and breaks or lunch; and by indentifying an employee
named Ken Gastrop as one who sold football chances
which he [Mason] paid for in the morning. The last witness
offered to show that Detrich engaged in solicitation during
working time was Billman, who testified without contradic-
tion that Detrich gave her two cards as she left the ladies'
room one morning, telling her to keep one and give the
other to Ella Mae Monninger.
Respondent's last witness was Richard Young. After he
was recalled Young specifically denied that he accused Det-
rich of being the ringleader of the Union, and he specifi-
cally denied that he told the employee at the time of his
termination that he did not want a union in the plant and
would get a shotgun and put up a barrier. Young's remain-
ing testimony with regard to the discharge testimony paral-
leled that given when he was called as a witness by General
Counsel during the presentation of General Counsel's case.
During direct examination Young was asked what were the
rules at the plant regarding solicitation on company time at
the time that Detrich was fired. He answered that although
" Valentine testified that money is collected at all times of the day for
flowers in cases of employee deaths.
12 Blair returned his card to Detnch as the latter was coming out of the
men's room later in the day.
there was no written rule it was "pretty well understood
that it was a rule that you were to stay at your work station
and that you wouldn't solicit." He disavowed knowledge of
the fact that employees had engaged in the types of solicita-
tion described by the witnesses who had testified during the
hearing.
Conclusions and Additional Findings
A. Te Alleged 8(a)( ) Violation
By virtue of Section 8(a)(1) an employer engages in an
unfair labor practice if it interferes with, restrains, or co-
erces employees in the exercise of their rights guaranteed by
Section 7 of the Act. Section 7 rights include, inter calia, the
"right to self-organization, to form, join, or assist labor or-
ganizations."
The complaint herein alleges that Respondent's President
Richard Young engaged in conduct which violated Section
8(a)(l) of the Act on September 21. 1978. by the following
conduct interrogating employees concerning their interest
in and activities on behalf of' the Union" and "threatening
employees with physical harm should they engage in activi-
ties on behalf of or in support of the Union."
As previously indicated, I credit employee Harold )et-
rich's version of the conversation which occurred at the
time of his termination. Thus, I find that Young initiated
the conversation held in his office by stating: "Harold . . .I
had some people phone me last night that some employees
are trying to organize a union and you have been singled
out as the ringleader." Detrich replied: "TIhat's a possibil-
ity." Young responded. "Well, as of' now, you do not work
fior this company any longer. We don't need any trouble-
makers around here. . . I own this company, I own this
building. I own this land... And no union and no one else
is going to come in here and tell me how to run this busi-
ness ... And if I have to, I'll close it down and I'll block the
driveway with my jeep and my shotgun and I hope that the
ringleader is in the front lines so I can blow his head off."
Respondent contends that I should not find that it unlaw-
fully interrogated employees because the record reveals that
Young merely asked Detrich if he had solicited for a union
on company time. I do not credit Young's testimony
wherein he asserted that he merely asked Detrich if he had
been soliciting for a union on company time. Instead I find
that by indicating to Detrich that union activity was occur-
ing and by stating that Detrich had been singled out as the
ringleader Young was clearly inviting Detrich to respond to
his statement. Such activity violates Section 8(a)( ) of the
Act, as alleged.
Young simply denied that he told Detrich that he would
block the driveway with jeep and a shotgun and hoped to
blow off the ringleader's head. Having credited Detrich. it is
clear that Young threatened the employee because he was
engaged in union activity. I find the threat was violative of
Section 8(a)( 1) of the Act, as alleged.
B. The Alleged Discriminatoor Discharged
Respondent contends that I should find that it lawfully
discharged Harold Detrich on September 21 because he
1040
IA(;GERSTOWN KI I('1t-NS
had a poor attendance and work performance record and
he solicited signatures on union authorization cards on Sep-
tember 20 when he and some of the employees solicited
should have been working. Despite the absence of a wrilltten
or well established oral rule prohibiting solicitation of any
type Respondent contends that its employees were all
aware that worktime was for work, and they were aware
that they could he disciplined if they engaged in any type of
solicitation when they should have been working. General
Counsel contends that Detrich's termination was unlawful.
as it is clear that but for his solicitation activity he would
not have been fired, and Respondent cannot justify the dis-
charge by a nonexistent no-solicitation rule. Thus. General
Counsel claims that the real reason for the termination was
Respondent's opposition to Detrich's union activity, and
the reasons assigned for the termination are pretexts to
mask the unlawful reason.
Having credited Detrich's version of the discharge con-
versation and Allenback's testimony which reveals that
Young informed her shortly after the discharge that Detrich
was fired because "he was trying or organize a union
here. . . he was a born troublemaker." I could summarily
reject Respondent's contentions and find that Young's com-
ments to Detrich and Allenback clearly reveal that Detrich
was fired solely because he attempted to organize Respon-
dent's plant, and that Respondent was opposed to unioniza-
tion of its operation. While I am convinced that this was
actually the case my decision need not be based solely upon
credibility resolutions, as objective record evidence clearly
reveals that Respondent terminated Detrich for discrimina-
tory reasons.
As observed by counsel for General Counsel in her brief.
the Board stated in Sunnyland Pcking Company, 227
NLRB 590 (at 596):
Where employees, with the knowledge and even par-
ticipation of supervisory personnel, are permitted by
an employer to solicit during worktime for various
charities, functions, or causes, to collect money for
churches and fellow employees, and to sell numerous
items for personal gain while at the same time the em-
ployer enforces a no-solicitation rule against employ-
ees soliciting on behalf of a union, such disparate en-
forcement of the no-solicitation rule is both unfair and
violative of Section 8(a)(1) of the Act. The W'n. H.
Block Company, 150 NLRB 341 1964): C & E Stores,
Inc., C & E Supervalue Division, 221 NLRB 1321
(l976.
In the J. L. Hudson Company case,.' which is equally appli-
cable, the Board reversed a trial examiner's findings that an
employee guilty of worktime solicitation was lawfully ter-
minated stating (at pages 172 and 173):
The Trial Examiner's rationale presumes that, de-
spite the absence of a valid rule, employers may termi-
nate employee organizers who engage in work-time
union solicitation even though the activities of the em-
ployees entail no interference with production or plant
discipline. In our opinion, the question of whether
3 198 NLRB 172.
work-time solicitation is protected or unprotected ac-
tivity cannot be determined on an absolute basis. On
the contrary, the result must turn on the delicate bhal-
ance that must be maintained between the emploee's
right to engage in organizational activity and the em-
ploer's responsibility for the maintenance of rules
necessary to efficient operation of the plant. This bal-
ance must be administered in a falshion ensuring that
reprisals are not taken against the principal in-plant
organizers where legitimate interests of emploers ae
not involved.
A discharge based on work-time distribution of
cards in the absence of a valid rule is suggestive that
the employer was reacting to the protected aspect of
the employee's conduct. rather than considerations of
plant efficiency. Accordingly, in Seliwvn Shoe MaU/(c-
luring Corporation. it was held that in the absence of
such a rule it was not a sufficient defense that the dis-
chargee's activities (in that case., antiunion activities)
"impinged on working time." The Board said:
There must also be a showing that the discharge
flowed from [the employee's] abdication of her
working duties rather than from the fact that she
engaged in solicitation against the union.
More recently, in Swithcrafi, Inc.. 241 N.RB No. 154, sl.
op. p. 4 (1979) 101 LRRM 1011 (at 10121." the Board re-
versed an administrative law judge's finding that an em-
ployee was lawfully terminated for soliciting during work-
ing hours, stating, inter alia:
Nor do we find support in the record for the Admin-
istrative Law Judge's suggestion that Salinas' discharge
was lawful because her solicitation interfered with pro-
duction. Indeed, the record is unclear as to whether the
employees who were solicited were working or even at
their work stations when the solicitation took place.
Although the Administrative Law Judge apparently
considered soliciting during working hours as an iso,
fiicto interference with production. in flict the Board
requires an employer to show with particularity how
such conduct interfered with production. No such
showing was made here.
Application of the above-discussed legal principles com-
pels a conclusion that Respondent violated Section 8(a)(3)
of the Act, as alleged. by discharging Detrich. Thus, [)et-
rich's testimony, which is abundantly supported by Re-
spondent's own witnesses. clearly reveals that employees
and supervisors regularly solicited for flowers, lotteries.
chances. and gambling pools throughout the plant during
worktime as well as during breaks and lunch periods. The
record fails to reveal that a single employee was disciplined
for engaging in such activity before Detrich was terminated
for soliciting for the Union. Moreover, the ecord fails to
reveal that Respondent's employees were ever informed
orally or in writing that participation in any tpe of solicita-
tion would constitute a violation of company rules which
would subject them to discharge. Consequently. when Re-
spondent immediately discharge Detrich upon learning that
' Decided on April 18. 1979.
10(1
[)E:C(ISIONS OF NATIONAIL LABOR RELATIONS BOARD)
he had been soliciting for the Union on September 20 it
treated him in a disparate manner thereby violating Section
8(a)(3) of the Act. as alleged.
Assuming,. ,guelndo. that Respondent's employees were
aware that solicitation of others during periods when those
soliciting or those being solicited were supposed to be work-
ing would subject them to discipline. I find that the viola-
tion alleged must nevertheless be found, as Respondent o-
fered no evidence whatsoever to show "with particularity"
how Detrich's conduct on September 20 interfered with
production. 'To the contrary, the record suggests that there
was little i any interference with production that day.
Thus. Detrich testified without contradiction that his work
performance was not hampered on September 20. as illus-
trated by the fact that he cut some 1.00 pieces of lumber
for frame stock that day. Respondent offered no evidence to
show that such production was below par. Moreover, Re-
spondent's witnesses Monninger. Peiffer, Valentine, and
Billman stated that they were given union cards while going
to the bathroom or while they were in the bathroom (Val-
entine). Similarly, employee Mason credibly testified that
Detrich visited the work area where he, Blair, and Harries
worked as they, including Detrich, were returning from
break. I find that such testimony clearly fails to reveal that
the work or production of the employees in question was
interfered with by Detrich's solicitation activities. Accord-
ingly, under the rationale expressed in Switch (raft, Inc..
supra, Respondent was prohibited by the Act from dis-
charging Detrich under the circumstances revealed by the
instant record.
In sum, I conclude that Respondent was motivated to
discharge Harold Detrich because he sought to organize its
employees, and Respondent was opposed to organization of
its plant. 1 find that the reasons advanced by Respondent
for the discharge are pretexts advanced to mask the real
reason for the discharge.
IV. IlE EFFF( I 01F liHE UNFAIR AB()R PRA('II(ES UPO)N
(OMMR(CE
The activities of Respondent set forth in section II111.
above, occurring in connection with the operations de-
scribed in section I. above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CON(C.LUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 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. By unlawfully interrogating and threatening employee
Harold Detrich as described in section III, above. Respon-
dent has engaged in and is engaging is unfair labor prac-
tices within the meaning of Section 8(a)( I) of the Act.
4. By discharging employee Harold Detrich because he
engaged in activity on behalf of the Union Respondent vio-
lated Section 8(a)(3) and () of the Act.
5. The above-described unfair labor practices affect coin-
merce within the meaning oft' Section 2(6) aud (7) of the Act.
Tilt RMI t)Y
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)( 1) and (3) of the Act. I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Respondent will he required to offer Harold Detrich rein-
statement to his former position of employment or, if that
position no longer exists, to a substantially equivalent posi-
tion. without prejudice to his seniority or other rights and
privileges, dismissing, if necessary, anyone who may have
been hired to perform the work which he had been per-
forming. Additionally, Respondent will be ordered to make
this employee whole for any loss of earnings he may have
suffered by reason of his unlawful termination with back-
pay to be computed on a quarterly basis, making deduc-
tions for interim earnings, and with interest to be paid in
accordance with the Board's decisions in F. W. Woolworth
Company. 90 NLRB 289 (1950). and Florida Steel Corpora-
lion, 231 NLRB 651 (1977).1'
As the unfair labor practices committed by Respondent,
particularly the act of discrimination, strike at the heart of
the Act, a broad cease-and-desist order shall be recom-
mended, precluding Respondent from "in any other man-
ner" interfering with, coercing, or restraining employees in
the exercise of their rights guaranteed by Section 7 of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding and pursuant
to Section 10(c) of the Act I hereby issue the following
recommended:
ORDER
The Respondent, Hagerstown Kitchens, Inc., Hagers-
town, Maryland. its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees regarding
their union activities or sentiments.
(b) Unlawfully threatening its employees with physical
harm if they engage in union activities.
(c) Discharging its employees because they engage in
union activity to discourage them from joining or assisting
United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, Carpenters District Council. or any other labor
organization.
"5See, generally. Isis Plumbing & Heating Co. 138 NLRB 716 01962). I
refrain from ruling on General Counsel's request for interest on monies due
at 9 percent per annum, as the Board considered and rejected such a request
in Florida Steel Corporation. supra.
"t 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.
1042
HAGERSTOWN KITCHENS
(d) In any other manner interfering with. restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the purposes and policies of the Act:
(a) Offer Harold Detrich immediate reinstatement to his
former position or, if such position no longer exists, to a
substantially equivalent position. without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings resulting from the discrimi-
nation against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due.
(c) Post at its place of business in Hagerstown, Mary-
land, copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 5. after being duly signed by Respon-
dent's authorized representative, shall be posted immedi-
ately upon receipt thereof and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced.
or covered by any other material.
(d) Notify the Regional Director for Region 5. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
,7 In the event that this Order is enforced by a Judgment of a Inited
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1043