Huttig Sash and Door Company

National Labor Relations Board - Board Decisions

Sep 20, 1982

263 N.L.R.B. 1256 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huttig Sash and Door Company and Laborers' In-
ternational Union of North America, Local
Union No. 438, AFL-CIO. Case 10-CA-15705
September 20, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 29, 1982, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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
pannel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, t
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. This matter was heard by Administrative
Law Judge Robert Cohn, who died before he could issue a decision. By
letter of October 13, 1981, Chief Administrative Law Judge Melvin J.
Welles notified the parties of Administrative Law Judge Cohn's death
and informed them of various alternatives for the disposition of the case,
including designation of another administrative law judge to prepare a
decision on the record as made, or a hearing de novo before another ad-
ministrative law judge (see sec. 554(d) of the Federal Administrative Pro-
cedure Act and Sec. 102.36 of the Board's Rules and Regulations, Series
8, as amended) The parties agreed to waive a hearing de novo The
Board then assigned the matter to Administrative Law Judge Sidney J.
Barban. Respondent nlow excepts to certain credibility findings, emphasiz-
ing that they were not based on the hearing demeanor of the witnesses. It
is true that the normal fweight accorded to credibility findings, Standard
Dry Wall products, Inc., 91 NI RB 544 (1950), does not apply in circum-
stances such as those here. However, where the parties have waived their
right to a hearing de novo and agreed to permit credibility resolutions,
findings of fact, and conclusions of law to be determined by one who did
not observe the demeanor of witnesses at the hearing, deference is due
the Administrative Law Judge's credibility findings. In this case, we do
not agree with Respondent's contention that the Administrative Law
Judge's credibility findings were contrary to the preponderance of the
evidence as established by the record as a whole.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the brief adequately present the issues
and positions of the parties.
In its exceptions to) the Administrative Law Judge's Decision, Re-
spondent contends that the Administrative Law Judge erroneously found
that Plant Manager Capito admitted that James had been promised a
wage increase Our examination of the record reveals no direct admission
by Capito. Apparently, the Administrative Law Judge was referring to
the credited testimony of James that Capito told him that he knew that
James had been promised a wage increase but that the presence of the
Union in tile meantime prevented Capito from giving it. Accordingly, in
affirming the Administrative Law Judge we rely on the credited testimo-
ny of James and not on any direct admission by Capito.
In accord with his dissent in Olympic Medical Corporation, 250 NLRB
146 (1980), Member Jenkins cwould award interest on the backpay due
based on the formula set forth therein.
2 Although the Administrative l.aw Judge found that Respondent vio-
lated Sec. 8(a)() of the Act by withholding Rufus James' promised wage
increase because of the employees' union activities and recommended
263 NLRB No. 163
The Administrative Law Judge concluded, and
we agree for the reasons stated in his Decision, that
Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Tommy R. Benson on March
27, 1980. We find further support for this conclu-
sion in the following facts which center around
two incidents in which Benson was responsible for
delivering doors and materials to muddy construc-
tion sites.
Both incidents occurred not long after the Board
conducted an election in which the Union was des-
ignated by a majority of the votes cast and was
certified as the employees' exclusive bargaining
representative. In fact, the first incident, which in-
volved a complaint by a customer that a number of
doors which Benson and an assistant had delivered
had been ruined because of mudstains, resulted in a
written reprimand to Benson on March 7, 1980,
only I day after he had acted as the observer for
the Union in the election. Although, according to
his testimony, Benson had handed the doors to the
driver's assistant or "striker" from the rear of the
truck and the striker carried them across the mud
to the house in which they were to be installed, the
assistant was not reprimanded.
The second incident occurred on March 27,
when Benson and John Barnes were assigned to
deliver a truckload of doors and trim to a muddy
site. Benson testified that, because of the weight of
the material, the condition of the ground, and the
lateness of the day, the two agreed that they would
need assistance to get the truck unloaded before
dark. When Benson called the warehouse, howev-
er, Plant Manager Capito refused to send additional
help. When Benson called Capito a second time
after rechecking the site, Capito said, "You are in
charge, totally in charge of the vehicle, and it's up
to you to see to it that the material is delivered."
When Benson and Barnes returned with the load
undelivered, Capito terminated Benson.
that Respondent offer James immediate and full reinstatement, the Ad-
ministrative Law Judge did not recommend that Respondent be ordered
to take the afirmative action of awarding James his promised wage in-
crease. We shall correct this omission, apparently an oversight, and
modify the Administrative Law Judge's recommended Order to require
Respondent to offer James the wage increase he was promised and to
make him whole for any loss of earnings or benefits he may have suffered
by reason of Respondent's withholding the wage increase.
In adopting the Administrative Law Judge's conclusion that Respond-
ent violated Sec. 8(aX3) and (1) of the Act by discharging employees
Rufus James and Tommy R. Benson because of their union or other pro-
tected activities, Member Jenkins does not rely on the Administrative
Law Judge's application of Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980), to the facts. That decision concerns indentifying
the cause of discharge where a genuine lawful and genuine unlawful
reason exist. Where, as here, the asserted lawful reasons are found to be
pretextual, only one genuine reason remains-the unlawful one. To at-
tempt to apply Wright Line in such a situation is futile, confusing, and
misleading.
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HUTTIG SASH AND DOOR CO.
The Administrative Law Judge properly found
that Respondent had previously, in circumstances
similar to those facing Benson and Barnes on
March 27, sent additional help when requested, or
advised that the load be brought back to the ware-
house to await more favorable ground conditions.
In Benson's case Respondent did neither. Instead, it
ordered Benson to make the delivery and held him
responsible regardless of the conditions. Further, it
is clear that the assessment that Benson and Barnes
made against delivering the doors that day was not
erroneous. The following day, when Supervisor
Kirkland unsuccessfully attempted to make the de-
livery which Benson and Barnes had failed to make
the day before, the truck he was driving became
stuck in the mud and had to be towed out. Kirk-
land, however, was not given an ultimatum to
make the delivery, but was instead instructed to
return the material to the warehouse.
Respondent cited the above-described incidents
involving Benson as the grounds for Benson's dis-
charge. With respect to the first incident it asserts
that drivers are wholly responsible for delivering
materials in good condition and that Benson failed
in this responsibility. Regarding the second inci-
dent, Respondent argues that Benson's refusal to
deliver the materials was an act of insubordination
warranting discharge. As noted earlier, we agree
with the Administrative Law Judge's reasons for
rejecting this defense.
We find further support for the Administrative
Law Judge's reasoning in the timing of the first in-
cident, which came immediately after the election
where Benson acted as the Union's observer. The
timing of the reprimand to Benson coupled with
the failure to warn or in any way discipline Ben-
son's assistant supports the inference that the repri-
mand was in retaliation for Benson's union activi-
ties. Similarly, the difference in Respondent's treat-
ment of Benson and Kirkland regarding the deliv-
ery of materials gives rise to the inference that
Benson's discharge was discriminatorily motivated.
Regardless of whether Kirkland was disciplined for
failing to deliver the materials, it is clear that he re-
ceived vastly different treatment than Benson.
Thus, when Benson explained that he could not de-
liver the materials, he was in effect told to deliver
them or be fired. In contrast, when Kirkland failed
to make the delivery, he was merely instructed to
return the materials to the warehouse. Respondent
failed to offer a credible reason for such disparate
treatment.
Accordingly, we agree with the Administrative
Law Judge that Respondent's discharge of Tommy
R. Benson on March 27, 1980, violated Section
8(a)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusion of Law 5 and
renumber the remaining paragraph
"5. Respondent, by withholding the wage in-
crease it promised to Rufus James, because of his
union or other protected activities, violated Section
8(a)(l) of the Act."
THE AMENDED REMEDY
As Respondent has been found to have engaged
in unfair labor practices, we shall recommend that,
in addition to taking those actions recommended in
that section of the Administrative Law Judge's De-
cision entitled "The Remedy," it also takes the spe-
cific action set forth below, designed to effectuate
the policies of the Act.
Having found that Respondent, in violation of
the Act, withheld the wage increase it promised to
Rufus James, we will order that Respondent offer
him the wage increase he was promised in Febru-
ary 1980, and make him whole for any loss of pay
or benefits which he may have suffered by reason
of the withholding of his promised wage increase,
by payment to him of a sum of money equal to that
which he would have earned as a result of the
wage increase in the form of wages or other bene-
fits from the date which Respondent improperly
withheld the wage increase,3 with interest thereon
to be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Finally, we shall order Respondent to expunge
from its records any reference to the discharges
that we have found unlawful and to notify each un-
lawfully discharged employee that this has been
done and that evidence of these unlawful acts will
not be used as a basis for any future discipline.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board, adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Re-
spondent, Huttig Sash and Door Company, Atlan-
ta, Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Add the following as paragraph 2(b) and (c)
and reletter the remaining paragraphs accordingly:
s Such backpay shall be computed in the manner set forth in Ogle Pro-
tection Service Inc.. and James L. Ogle. an Individual, 183 NLRB 682, 683
(1970).
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(b) Offer Rufus James the wage increase he was
promised in February 1980, and make him whole
for any loss of earnings or benefits he may have
suffered by reason of the withholding of his prom-
ised wage increase, in accordance with the provi-
sions set forth in the section of the Board's Deci-
sion entitled 'The Amended Remedy.'
"(c) Expunge from its files any reference to the
discharges of Rufus James and Tommy R. Benson
and notify each of these individuals that this has
been done and that evidence of these unlawful acts
will not be used as a basis for any future disci-
pline."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise dis-
criminate against employees because they join,
support, or engage in activities on behalf of
Laborers' International Union of North Amer-
ica, Local Union No. 438, AFL-CIO, or any
other labor organization.
WE WILL NOT coercively interrogate em-
ployees concerning activities on behalf of or
sentiments about a labor organization.
WE WII.L NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under the
National Labor Relations Act.
WE WILL offer Rufus James and Tommy R.
Benson immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, and WE WILL make each of them whole
for any loss of earnings and benefits each may
have suffered by reason of their discharge,
with interest.
WE WILL offer Rufus James the wage in-
crease he was promised on February 1980, and
WE WILL make him whole for any loss of
earnings and benefits he may have suffered by
reason of the withholding of his promised
wage increase with interest.
WE WILL expunge from our files any refer-
ence to the discharges of Rufus James and
Tommy R. Benson and notify each of these in-
dividuals that this has been done and that evi-
dence of these unlawful acts will not be used
as a basis for future discipline.
HUTTrIG SASH AND DOOR COMPANY
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Atlanta, Georgia, on November 12,
1980 (all dates herein are in 1980, unless otherwise
noted), before Administrative Law Judge Robert Cohn
upon a complaint issued on May 16, based on charges
filed on April 9, by Laborers' International Union of
North America, Local Union No. 438, AFL-CIO (herein
the Union). Administrative Law Judge Cohn died before
he could issue a decision in this matter. The Board, after
due consideration having remanded this proceeding to
the Chief Administrative Law Judge for appropriate
action, and no party having requested a hearing de novo,
the matter was assigned to me for the preparation and is-
suance of a decision and such other action as may be ap-
propriate.
The complaint alleges that Huttig Sash and Door
Company (herein Respondent) violated Section 8(a)(1) of
the National Labor Relations Act (herein the Act) by (1)
interrogating employees concerning union activities, (2)
threatening employees with discharge if they engaged in
union activities,' and (3) withholding a scheduled wage
increase to cause rejection of the Union; and violated
Section 8(a)(3) and (1) of the Act by discharging Rufus
James and Tommy R. Benson because of their activities
on behalf of the Union and other protected concerted ac-
tivities. The answer to the complaint denies the unfair
labor practices alleged, but admits allegations of the
complaint sufficient to justify assertion of jurisdiction,
and to support a finding that the Union is a labor organi-
zation within the meaning of the Act.
Upon the entire record in this case, and, after due con-
sideration of the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS OPERATIONS
Respondent, which has operations in several States,
has an office and place of business in Atlanta, Georgia,
which is the location principally involved here, where it
is engaged in the assembly and wholesale distribution of
prefabricated doors and windows. In a recent annual
period, Respondent sold and shipped from its Atlanta fa-
cility finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Georgia.
In its Atlanta warehouse facility, during the times ma-
terial here, Respondent employed approximately 24 rank-
and-file drivers, drivers' assistants (referred to in the
I As noted hereinafter, at the end of the General Counsel's presenta-
tion of facts, Administrative Law Judge Cohn dismissed the allegation
that Respondent violated the Act by threatening employees with dis-
charge.
1258
HUTTIG SASH AND DOOR CO.
record as strikers), and warehousemen. The plant man-
ager during the period involved was David Capito
(herein Capito) and the two supervisors involved were
Richard Taylor (herein Taylor) and Curtis Kirkland
(herein Kirkland).
II. THE UNION ORGANIZATIONAL EFFORT
The Union's organizational effort among Respondent's
employees was apparently initiated by employee driver
Tommy R. Benson (Benson) in early January 1980. An
organizational meeting was held at Benson's home on
January 12, attended by approximately 17 persons, in-
cluding Supervisors Taylor and Kirkland. Two days
later, the Union filed a petition for certification in a unit
of Respondent's employees. Respondent, though admit-
tedly opposed to the unionization of its employees,
agreed to the conduct of an election, which was held on
March 6. Benson served as the Union's observer at the
election. The Union was designated by a majority of the
votes cast and was certified as exclusive bargaining rep-
resentative. Capito testified that, at the time of the hear-
ing in this matter, Respondent and the Union were en-
gaged in collective bargaining.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Withholding of a Wage Increase
Rufus James was hired on January 3 as a driver by a
supervisor apparently no longer employed by Respond-
ent. He states that he was told at the time of hire that
after 30 days (which he understood would be his proba-
tionary period) he would receive a raise in pay to that of
a regular driver. James was hired at $3.50 an hour. He
was told that the regular drivers received from $3.85 to
S4. In early February, when he did not receive a raise,
James went to see Capito in his office to complain.
James states that he told Capito what he had been prom-
ised. He says that Capito replied that he was aware of
this, but continued, "Rufus, you're not the only one that
got burned. I know what was promised to you....
Ya'll got the Union coming in and there ain't nothing I
can do . . . you just got caught in the middle." James
said Capito also stated that "as far as [he] was con-
cerned, [James] had already got [his] increase." In con-
clusion, James asserts, "I was promised a raise in 30 days
and I never did get it."
James' testimony set forth above is not denied, except
that Respondent asserts that its probationary period is in
fact 90 days. Capito and Respondent's office manager,
Rosalyn Williams, testified that, when James and another
driver were hired, Respondent had decided that the
wage rate for the lowest level of driver would be in-
creased on February I from $3.30 to $3.50 an hour, and
it was decided to pay these two men at the higher rate
from the outset. Williams says that this was done for
"convenience." Capito, on the other hand, states that he
was informed in discussions with the then plant manager
that "this is what it would take to hire ... these men at
this time to get them as truck drivers," which seems to
be a more likely explanation. Nevertheless, Williams tes-
tified that, on the occasion, she told James what his rate
of pay would be, and that "he was getting a bonus in
that this was the rate that was going into effect on Feb-
ruary l."
Upon full consideration of these facts, the following
appears: Quite apart from whether James was given "a
bonus" to induce him to come to work for Respondent,
it is clear that he was also at this time promised that in
30 days he would receive a wage increase, which he did
not receive. Capito admitted that he was aware that
James had been promised the increase, and sought to jus-
tify the fact that James did not receive it on the ground
that the employees had brought the Union into the pic-
ture in the meantime. 2
For the reasons stated, and upon the entire record, I
find that Respondent violated Section 8(a)(1) of the Act
by withholding James' promised wage increase because
of the employees' union activities.
B. Alleged Interrogation
Driver John Barnes testified that, "right before the
election," he was told by Supervisor Kirkland that he
was wanted in Capito's office. He says that, in Capito's
office, the latter asked Barnes if he had "ever been part
of a union," to which he says he replied in the negative.
Capito continued, asking if Barnes knew how the Union
would affect Barnes, his family, and Respondent, saying
that "all it does is take money out of your pocket and
my pocket and it will be in the best interest [of the Com-
pany] if the union is voted down." Barnes testified that
he became "kind of frightened, you know, by me being
involved with the union. It might affect my job . . ." so
he told Capito that he was against the Union, and
thought that it would be "voted down."
Capito denied talking to employees individually in his
office during that period of time, 3 but on cross-examina-
tion appeared to modify somewhat, saying he "did not at
any time I recall talk to any . . . employee in my office."
(Emphasis supplied.)
Barnes' recollection as to the incident seems vivid and
specific. Capito's recollection was not so sure and defi-
nite. In the circumstances, I credit Barnes.
Respondent makes a point that Barnes testified that he
did not tell anyone about this incident. However, from
the manner of the questioning, he may have been limit-
ing his answers to the day of the incident and the follow-
ing day. Indeed, it is likely that Barnes told someone of
the incident since the incident came to the General
Counsel's attention.4 In any event, it is sufficient that the
incident coerced one of a small number of employees
just before the representation election.
On the record as a whole, and for the reasons given, I
find that Respondent violated Section 8(a)(1) of the Act
2 Capito's assertion that James had already received his increase seems
like a lame excuse to assuage James' feelings. Thus, after 30 days, most of
which time he was a driver on his own, he would still bc receiving the
same rate which Respondent set for new drivers, rather than the wage
increase he had been promised.
s Capito says that he was instructed by Respondent's counsel not to do
this.
4 Barnes indicated as much. Thus, when he was asked if he told any-
body about the incident on the day after its occurrence, he replied, "No,
not directly to the employees." (Emphasis supplied)
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by engaging in coercive interrogation of employee activi-
ties and sentiment.
C. Alleged Threat To Discharge
On February 29, Plant Manager Capito held a meeting
in the plant at which he spoke to the employees in oppo-
sition to the selection of the Union as their bargaining
representative. At this meeting Rufus James asked, in es-
sence, what the employees would gain if they rejected
the Union. During the interchange, James complained to
Capito "about the over-heavy loads" the employees had
to deliver. James said, "We have [trim], windows, insu-
lated doors and windows that a driver and a striker (the
driver's helper) has to carry out, and a lot of times like
when it's raining and wet you cannot back in. You have
to go all the way from the street, down hills, up hills,
and it's impossible for two men to get this load off" to
which Capito responded that "if [James] didn't like what
was going on there, [he] could go and find [himself] an-
other job."5 James' account of this incident, set forth
above, was corroborated by the testimony of John
Barnes. Respondent put on no evidence disputing this,
though Capito denied, generally, threatening to dis-
charge any employee. However, as has been noted, at
the end of the General Counsel's presentation of her
case, Administrative Law Judge Cohn dismissed this al-
legation of the complaint.
Nevertheless, there are numerous decisions of the
Board that indicate that such conduct constitutes an im-
plied threat to discharge in violation of the Act. See,
e.g., B. E. & K., Inc., 252 NLRB 256 (1980); Maywood,
Inc., 251 NLRB 979 (1980); Padre Dodge, 205 NLRB 252
(1973). It is unfortunate that counsel for the General
Counsel did not inform Administrative Law Judge Cohn
at the hearing of the cases on which she was relying.
However, I do not think, in the circumstances of this
case, that Respondent had adequate opportunity to liti-
gate this issue, and I will therefore recommend that this
allegation of the complaint be dismissed.
D. The Discharge of James
Rufus James was employed by Respondent on January
3 as a driver. He was discharged on March 3. Respond-
ent claims that James was still considered a probationary
employee when terminated; James states that he was not.
For the purposes of this decision it would seem of little
significance whether James was or was not a probation-
ary employee at the time of his discharge. In the absence
of contractual limitation, Respondent is free to discharge
employees under any standard it desires, so long as that
standard does not violate the Act, or any other applica-
ble statute. In this case, I will assume that James was still
considered a probationary employee at the time of his
termination.
Respondent's "Payroll Action" record, which was in-
troduced into evidence shows the following reasons,
given at the time, for James' discharge: "There were two
reasons in the termination. Primarily, he would not work
b That afternoon, when James was in Capito's office for another
reason, Capito asked if he had "gotten through" to James. James replied
in the affirmative.
in the warehouse in accordance with instructions from
his supervisor. Also, there was an inconsistancy [sic] in
the time written in on his clock card when making a trip
from Birmingham Alabama in relations [sic] to the time
of another truck making the same trip at the same time."
However, the testimony of Respondent's witnesses in
support of these reasons raise several disturbing ques-
tions.
First, as to the trip to Birmingham: On Thursday, Feb-
ruary 28, Respondent sent two trucks to make deliveries
and pick up loads at Respondent's warehouse in Birming-
ham, one driven by James and the other by driver
Charles Belk. The truck driven by James became dis-
abled on the way down, and, after it was repaired, Belk
suggested that James, whose truck was unloaded, pro-
ceed back to Atlanta ahead of Belk, whose truck was
loaded. Nevertheless, apparently because at one point on
the return trip James doubled back to find out what had
happened to Belk, Belk arrived at the Atlanta terminal
before James. The terminal at that time of night was
closed. The next morning, James reported to his supervi-
sor, Taylor, that he had returned to the terminal at 12:30
a.m.
Capito states that he talked to Belk the next day, Feb-
ruary 29, to determine when he had returned. Originally,
Capito asserted that Belk said that he had returned at
11:30 p.m., then twice testified that Belk said he had re-
turned to Atlanta at 10:30 p.m. According to Capito, he
became upset because he felt James was "padding the
payroll." Nevertheless, Capito says that he did not talk
to James about this on February 29 because, he says,
James was out on a delivery that day and he did not see
him. This is manifestly inaccurate for Capito spoke with
James at least two times on February 29, first during the
course of the antiunion speech to the employees, and
later in the afternoon, in his office. As detailed herein-
after, Capito discharged James on the following Monday,
March 3.
Secondly, as to James' alleged failure to follow
instructions concerning work in the warehouse: Though
this was stated to be the "primary" reason for James' dis-
charge, it is noted that James was rarely assigned to
warehouse work. Since Supervisor Taylor stated that
James had done warehouse work about once a month,
March 3 was probably only the third time James worked
in the warehouse since his employment. There is no evi-
dence of any alleged failure to follow instructions on his
part prior to March 3, or that he had been criticized or
reprimanded for his work in the warehouse prior to that
time.
On the morning of March 3, since James did not have
a driving assignment, Supervisor Taylor told him to
assist the warehousemen in stacking certain items. When
this was completed, James says, the warehousemen sat
down, but he picked up a broom and began sweeping the
floor. He says that Capito saw him and criticized him for
doing this. Capito, on his part, states that on this occa-
sion he saw James walking aimlessly around. 6 After this
6 Taylor testified that he saw James that morning in the break area
drinking coffee. However, he did not speak to James. It also seems clear
that he did not speak to Capito about this that morning before James was
discharged.
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HUTTIG SASH AND DOOR CO.
encounter, according to James, whose account is not
controverted, the following occurred: Capito left, but
after a few minutes came back and said that Respondent
would not pay for a meal which James had on his way
back from Birmingham on February 28, and James
would have to reimburse Respondent for this (James had
paid for the meal with expense money Respondent had
advanced him). A short time later, Capito again re-
turned, and asked James what time he had arrived back
from Birmingham on February 28. When James said that
he had returned at 12:30, Capito called him a "liar,"
which James disputed. Capito thereupon went to the
office, got James' paycheck, and terminated James.
There is substantial question, on the record, whether at
the time he discharged James, Capito had reason to con-
clude that James would not follow his supervisor's
instructions in the warehouse as claimed on the "Payroll
Action" form. Thus, Capito first testified that when he
noticed James "walking around aimlessly," he consulted
Taylor "to see what [James'] performance was." He says
that Taylor replied that "he just didn't feel that James
was not performing his job as well as [Taylor] thought
he could, nor as well as some. Not as well as he could,"
and that James was therefore "unacceptable." However,
Capito later asserted that, so far as he could recall,
Taylor did not "at any time prior to [Capito's] discharg-
ing James" inform him "about James not carrying out
instructions that morning." 7 Taylor testified that he did
not remember telling Capito that James was an unac-
ceptable employee.
Upon consideration of the entire record, I have little
confidence in Capito's testimony. I am reasonably certain
that at the time he decided to discharge James, Capito
was not aware whether James worked well or poorly in
the warehouse, or followed instructions or did not, and
thus that this asserted delinquency on James' part was an
afterthought seized upon to shore up Respondent's as-
serted reason for terminating James. Indeed, at the hear-
ing, Respondent asserted still a third reason to justify the
discharge. This involved the fact that, in early February,
a truck which James was driving was damaged, costing
Respondent S800 to repair. There is some dispute as to
whether James was at fault. Both Taylor and Capito
spoke to James about this incident. There is also a con-
troversy as to whether James was, in fact, reprimanded
on this occasion. s I see no reason to attempt to resolve
these disputes. There is no indication that this past inci-
dent influenced Capito at the time of the discharge to
terminate James. Taylor testified that so far as he was
aware James was a satisfactory driver. This incident like-
wise seems to be another matter put forward after the
fact to shore up Respondent's defenses.
I have analyzed the issue of James' discharge in ac-
cordance with the Board's decision in Wright Line, a
Division of Wright Line. Inc., 251 NLRB 1083 (1980), as
T Capito also testified that he could not remember the last time Taylor
told him that James was "unacceptable."
e A lengthy memorandum which Capito says was a "repnmand" was
introduced into evidence. However, this was not shown to James. I note
that a similar memo involving driver Tommy Benson was shown to him
for acknowledgment, which indicates, contrary to an assertion by Capito,
that there was a Dractice of showina written renrim-nd, tn ,r lmnl'nI- o1
Respondent argues, and I find, first, that the General
Counsel clearly presented a prima facie case in support of
this allegation of the complaint (as Administrative Law
Judge Cohn obviously also thought). Respondent was
hostile to the Union and wished to defeat it in the elec-
tion scheduled for March 6. It knew or had good cause
to believe that James was actively sympathetic to the
Union. Thus, not only had James attended the organiza-
tional meeting of the Union, which was also attended by
Supervisors Taylor and Kirkland,9 but also on February
29, in a meeting at which Capito sought to turn the em-
ployees against the Union, James made himself persona
non grata by asking critical questions and making critical
comments with respect to Respondent's practices and in-
tentions. This conduct, which not only indicated that
James was antipathetic to Capito's campaign against the
Union, but, in and of itself, constituted protected activi-
ty, raised Capito's ire to the point that he suggested that
James terminate his employment. On the next workday,
March 3, Capito discharged James for allegedly seeking
to be paid for I hour more than he was entitled to, call-
ing James a "liar" when he disputed the allegation. The
timing of this, shortly before the election, and immediate-
ly after James had publicly challenged Capito during an
antiunion speech, furnishes strong support for the Gener-
al Counsel's case.
Under the Wright Line analysis, once the General
Counsel established a prima facie case, the burden shifted
to Respondent to show that the discharge was for good
cause. Respondent sought to show this by asserting that
it had no knowledge that James was a union advocate,
which I discredit, and that, in addition to his alleged
claim for an extra hour's pay, he also had not followed
instructions to work in the warehouse on March 3, and
in early February had seriously damaged a truck. How-
ever, for reasons previously given, I find that these var-
ious reasons are, in fact, pretexts seized upon to justify
James' discharge and not the true reason for that action
which was clearly his support for the Union and his pro-
tected concerted activity.
On the basis of the above, and the record as a whole, I
find that Respondent by discharging Rufus James on
March 3 violated Section 8(a)(3) and (1) of the Act.
E. Th. Discharge of Benson
Benson was hired by Respondent in January 1978 as a
driver. He was discharged on March 22, 1980. He appar-
ently initiated the Union's drive to organize Respond-
ent's employees, and the Union's initial meeting, attended
by Supervisors Taylor and Kirkland, was held in Ben-
son's house. Benson was the Union's observer at the rep-
resentation election held on March 6. I find that Re-
spondent was well aware of Benson's activities on behalf
of the Union.
The normal duties of Respondent's drivers, including
Benson, involve driving a truck, loaded at the warehouse
9 Capito denied that the supervisors informed him about the meeting
or the Union. Taylor was not asked about this Kirkland did not testify. I
would infer that in an operation of only 24 rank-and-file employees, with
supervisors attending the union meeting. Capito would be sure to be in-
r - A ._r - A,. -_ - , - - ..- - - -,.L.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by warehouse employees with doors, windows, trim, and
the like, to a construction site, where the driver and the
assistant riding with him (referred to as a "striker," as
previously noted) unload these materials and place them
in one of the structures on the site. So far as the record
shows, the construction involved is residential, and the
doors, windows, and materials are for installation in
homes. When the weather is good, the truck is usually
backed up to the house at which the material is to be de-
livered, where one of the two men hands down the ma-
terials from the truck to the other who carries them into
the house. These items are clearly bulky and frequently
rather heavy.
Frequently, probably most of the time, roads, streets,
and access to the construction sites are unimproved, and,
when it is raining, or the ground is otherwise wet and
muddy, the driver and striker have difficulty in making
deliveries. As James complained to Capito on February
29, on these occasions, the driver often is unable to back
the truck to the home where the materials are to be
placed, and the men have difficulty, as James com-
plained, in making deliveries of the "over-heavy" loads
from the street to the house where they are to be left.
Indeed, the instance in which James is alleged to have
damaged a truck, referred to previously, was an occasion
in which James became stuck in the mud attempting to
make such a delivery and assertedly damaged the clutch
and transmission attempting to extricate the vehicle.
According to Capito, he discharged Benson because of
two incidents, one on March 6 and a second on March
27, each involving attempts by Benson and a striker to
deliver doors and materials when conditions at the con-
struction site were muddy. Capito said that he felt that
Benson had become "an unfavorable employee" with re-
spect to the manner he handled material on the job.
On March 6, Benson and a striker delivered to a
project certain doors, which Capito testified were "top
of the line," designed to be stained by the purchaser at
the site. Capito states that later that afternoon he was
called by the customer, who complained that a number
of the doors were ruined because of mud stains. Capito
and Taylor went to the site, where they found that about
10 doors were mudstained along their bottom panels, as
if they had been placed in the mud while being carried
from the truck to the house. On March 7, Respondent
replaced these mudstained doors and had the damaged
doors brought back to Atlanta (where they were eventu-
ally sold for scrap). Benson was shown the mudstained
door and reprimanded. He disclaimed knowledge as to
how the doors had become mudstained, and refused to
sign a written reprimand, on the basis that he was not at
fault.'° So far as appears, the striker was not reprimand-
ed. Respondent takes the position that the driver on
these occasions is responsible for the delivery.
In the second instance, on March 27, Benson was as-
signed to drive a truckload of doors and trim to a site
about an hour away from Respondent's warehouse. On
this occasion, Barnes, who was regularly a driver, was
assigned as Benson's striker. They left Atlanta in the
I' According to Benson, the truck was parked partially on the street
and panially in the mud. He handed out the doors to the striker, who
carried them to the house.
afternoon, in the rain; when they arrived at the construc-
tion site, they found the area muddy and access to the
house where they were to deliver the materials obstruct-
ed by building material on the ground. Because of the
condition of the area and the manner in which the truck
had been loaded in Atlanta, Benson stated that he was
concerned that, if he tried to get close to the house, he
would tip the truck over. The street was at least 20
yards from the house." Because of the weight of the
material (though the doors and materials weighed 45
pounds a piece, or less, the total load weighed at least
400 pounds), the condition of the ground through which
the materials had to be carried from the truck to the
house, and the lateness of the day, Benson and Barnes
agreed that they would need help to get the truck un-
loaded before dark that day.
Both Benson and Barnes testified that it is normal, in
circumstances like this, for Atlanta to send additional
help, when requested, or advise that the load be brought
back to await more favorable conditions; Capito and
Taylor do not deny that this has occurred, but assert that
it has not happened recently, and rarely occurs. While I
am inclined to credit Benson and Barnes on this issue
(Taylor and Capito seemed evasive and insincere to me,
even on the cold record), but I do not believe the issue
need be resolved. Clearly there was precedent for the
two men calling for help on which they were entitled to
rely.
When Benson called the Atlanta warehouse, however,
Capito refused to send assistance, saying that there was
no one to send.' 2 Benson and Barnes then went back to
the construction site and sought without success for a
way to get close' enough to the house to deliver the ma-
terials on the truck. Barnes testified that when Benson
told him that Atlanta would not send assistance, he told
Benson that he "wasn't going to break my back because
they don't want to give me help because the load was
too heavy to tote up a slippery driveway and fall."
Benson testified that when he called Capito again and
told him "what [had] transpired, he [Capito] said, 'That
does not make any difference. You are in charge, totally
in charge of the vehicle, and it's up to you to see to it
that the material is delivered. .. .' I explained the situa-
tion again, and I said, 'Send me some help and we'll
probably get it off.' He said then, again, 'I tell you, there
is no help here in the building ... you've got an ultima-
tum. Either get it off or bring the vehicle back and you
and Johnny Barnes [can] clock yourself [sic] out or else I
will clock you out myself."' Capito, in his testimony,
adds that he told Benson during these telephone conver-
sations, or before, that the customer had insisted on de-
livery of these materials, threatening to take his business
elsewhere. When Benson informed Barnes of Capito's
threat to "clock" them out, Barnes responded, "So be
it."
" Benson estimated 20 to 60 yards. Capito stated the distance was 60
feet.
1a When Benson and Barnes returned to Atlanta that day, Benson says
that there were several warehousemen standing around. Neither Taylor
nor Capito was asked, and neither testified as to whether there were men
available that could have been sent.
1262
HUTTIG SASH AND DOOR CO.
When the two returned to the warehouse, Capito came
out, noted that the men had not delivered the load, went
back into the office, secured Benson's checks, and gave
them to Benson. Barnes was not discharged or otherwise
disciplined.
The following day, Respondent sent Supervisor Kirk-
land out with Barnes to deliver the load which Benson
and Barnes had failed to deliver on March 27. When
Kirkland attempted to drive up to the house by a back
way the truck became stuck in the mud and a wrecker
had to be called to get it out. Respondent instructed
Kirkland to return to the warehouse with the load. It
does not appear that Kirkland was disciplined. (In his
testimony, Capito spoke of both Taylor and Kirkland as
both being employed at the time of the hearing.)
I find (as apparently Administrative Law Judge Cohn
did) that the General Counsel presented a prima facie
case that Benson had been discharged discriminatorily, in
violation of the Act. Respondent knew that he was
prominent in support of the Union, which Respondent
opposed. Significantly, there seems to have been no com-
plaint with respect to Benson's work performance until
the Union won the election.' 3 Yet, Capito seems to have
picked out Benson particularly for discipline on each of
the occasions noted above. Thus, if anyone were at fault
for muddying the doors, in the March 6 incident, it is
clear that this must have been the striker. On March 27,
the striker refused to assist in delivering the load for fear
of injuring himself. Though the circumstances are con-
vincing that Capito was aware of the strikers' conduct
on each of these occasions, in each case, Capito disci-
plined only Benson, without any criticism to the striker.
I am not impressed with Respondent's apparent sugges-
tion that the driver alone is responsible to see that the
load is delivered. It is manifest that the job cannot be
done without the full cooperation of the strikers.
The discrimination against Benson becomes even more
obvious in Respondent's treatment of Driver-Supervisor
Kirkland. On March 28, the day after Benson was fired
for failing to deliver the load, Kirkland and a striker
were sent out to deliver the same load. When Kirkland
became stuck in the mud, he was directed to return with
the load. So far as appears, Kirkland was not disciplined.
Respondent, however, argues that, on March 27,
Benson disobeyed a direct order to deliver the materials,
and, therefore, was fired for insubordination. There is no
question but that Respondent has the right to discharge
for insubordination, if that is the real reason for its
action. In this case, however, the record as a whole, my
concern with the credibility of Capito's testimony gener-
ally, and, in particular, the discriminatory treatment of
Benson convince me that the reason given was not the
true reason for the termination of Benson.
For the reasons given, and upon the entire record, I
find that Respondent violated Section 8(a)(3) and (1) by
the discharge of Tommy R. Benson on March 27, 1980.
13 The only prior incident referred to in the record involved a case in
which Benson, relying on his striker's misdirections, misdelivered a load
of material. This was in the third month of his employment. Benson was
discharged, but when he explained the circumstances, was immediately
rehired
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent, by coercively interrogating employees
with respect to union activities and sentiment, and by
withholding a promised wage increase because of union
activities among the employees, violated Section 8(a)(1)
of the Act.
4. Respondent, by the discharge of Rufus James on
March 3, 1980, and the discharge of Tommy R, Benson
on March 27, 1980, because of their union or other pro-
tected activities, violated Section 8(a)(3) and (1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(aX)() and (3) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminated against
Rufus James and Tommy R. Benson in violation of the
Act, it will be recommended that Respondent offer each
of them immediate and full reinstatement to the position
each of them held at the time each was terminated or, if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to the seniority or other
rights or benefits each possessed, and make each of them
whole for any loss of pay or benefits which each may
have suffered by reason of his discharge, by payment to
each of them a sum of money equal to that each of them
would have earned as wages or other benefits from the
day of his discharge to the date of his reinstatement, less
any net earnings during that period, with interest there-
on, to be computed in the manner prescribed in F W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1971). See, generally,
Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 14
The Respondent, Huttig Sash and Door Company, At-
lanta, Georgia, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
" 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
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discharging or otherwise discriminating against
employees because they join, support, or engage in activ-
ities on behalf of a labor organization.
(b) Coercively interrogating employees concerning ac-
tivities on behalf of, or sentiments about, a labor organi-
zation.
(c) Withholding wage increases because of employee
activities on behalf of a labor organization.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights protected
under Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer to Rufus James and Tommy R. Benson im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights and benefits, and make each of them
whole for any loss of earnings or benefits each may have
suffered by reason of his discharge, in accordance with
the provisions set forth in the section hereinabove enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records and re-
ports, and all other records necessary to facilitate the ef-
fectuation of the Order herein.
(c) Post in conspicuous places at its operations in At-
lanta, Georgia, copies of the attached notice marked
"Appendix."' 5 Copies of said notice, on forms provided
by the Regional Director for Region 10, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to any alleged violation of the
Act not found hereinabove in this Decision.
"I In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1264