Krestmark Industries, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 26, 1972199 N.L.R.B. 1039 (N.L.R.B. 1972) Copy Citation KRESTMARK INDUSTRIES 1039 Krestmark Industries , Inc. and Melvin Wood. Case 16-CA-4672 October 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 9, 1971, Administrative Law Judge' Phil Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the Administrative Law Judge's rulings,2 findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Krestmark Industries, Inc., Lewisville, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 The title of "Tnal Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has renewed before the Board its motion to reopen the hearing for the admission of additional evidence . This motion was originally filed with the Administrative Law Judge after the close of the hearing and denied by him for the reasons set forth in his Decision . We are in agreement with the Administrative Law Judge' s ruling and the reason offered by him in support thereof. Accordingly, Respondent' s motion is hereby denied. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Trial Examiner: On February 22, 1972, Melvin Wood, an individual, filed a charge against Krest- mark Industries, Inc., herein the Respondent or the Compa- ny, alleging unfair labor practice within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act. The Company denied the unfair labor practice allegations. A hearing was held before the undersigned and all parties were represented, and were given full opportunity to exam- ine and cross-examine witnesses, to introduce evidence, and to argue orally. Both the General Counsel and the Respon- dent filed briefs. Upon the entire record and from my observation and demeanor of the witnesses, I make the following: Findings and Conclusions 1. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation and maintains a plant located in Lewisville, Texas, where it is engaged in the manufacturing of aluminum windows and similar prod- ucts. During the past 12 months, the Respondent, in the course and conduct of its business operations at its Lew- isville plant, purchased, transferred, and delivered to its plant goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported to said plant directly from States of the United States outside the State of Texas. During the same period of time Respondent manufactured, sold, and distributed from its plant products valued in excess of $50,000 which were shipped from said plant directly to States of the United States other than the State of Texas. Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 745, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The issue in this case is whether the Respondent dis- charged Melvin Wood and Jo Ann Wood in violation of the Act. The Respondent maintains that Melvin Wood was not a willing worker and required constant supervision and re- peated instructions, and that his attitude toward his work began a sharp deterioration about the beginning of Feb- ruary 1972.' The Respondent contends that Jo Ann Wood, wife of Melvin Wood, was discharged due to a combination of factors and argues that her own testimony reveals both a poor work performance and the lack of intelligence re- quired for the job she was given. Both of the alleged discrim- inatees were discharged on the morning of February 22. Melvin Wood was hired as an employee in the shipping department in November 1971. His duties consisted of stacking and loading windows and occasionally driving a truck. His supervisor was Dudley Stamper. Wood testified that in early February, he talked to approximately 70 percent of the employees about various aspects dealing with, the working operations and conditions of the Respondent's plant. Wood stated, "We got tired of what was going on down there at Krestmark, the way ev- erything was run down there." Wood then contacted the Union's office, and pursuant to this contact two agents for the Union came to Wood's residence on the evening of February 21. They discussed with both Melvin and Jo Ann ' All dates are 1972 unless specifically stated otherwise. 199 NLRB No. 171 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wood the conditions at the plant, gave them a number of authorization cards, and told them to have the cards signed by employees. Later that same evening, Jo Ann Wood vis- ited the nearby apartment of Elaine Stringer to see if she and her two roommates, all three employees of Respondent, would sign authorization cards. Stringer was not at the apartment, but the two roommates were and they both signed cards. On the morning of February 22, Melvin and Jo Ann Wood arrived at Respondent's plant and as they were about to enter met two other employees, and Jo Ann Wood asked them if they would like to join the Union and succeeded in obtaining their signed authorization cards. Melvin Wood then proceeded through the vinyl department of the plant where he handed out additional authorization cards, and did the same in the parts department. He stated that when one employee was returning a card to him he happened to notice that Plant Manager Horace Hicks was walking with- in 20 to 30 feet from him, but nevertheless he took the card back and then started toward the line department. He punched in at 7:15 a.m. and began his workday on schedule at 7:30 a.m. Melvin Wood testified that altogether, he se- cured signatures on about 15 cards, and that 6 or 7 other employees were receptive to the extent of taking cards with the understanding of returning them to him later. Jo Ann Wood stated that she noticed Joe Bob, whom she classified as a leadman in the vinyl department, watch- ing her and her husband and the two employees who had signed cards in the parking lot, when the four of them walked into the plant. Wood further stated that as she went towards her office she succeeded in obtaining signed au- thorization cards from employees with the first names of Elaine, Viola, and Brenda, but shortly thereafter, these three employees appeared and requested the return of their cards. She testified they told her that Tom Sims , a checker, had warned them that signing the cards could cause them to lose their jobs, but she refused to return their authorization cards and placed them in her purse. Wood said these girls asked her to "tear" their cards up, but she replied this could not be done because it would be destroying "federal property," but that she would mark their cards "void." Melvin Wood testified that after his workday began, he talked with other employees about signing cards including employee Jerry Wallace, and said that at this time they were in the stocking area and Supervisor Dudley Stamper was standing in this area about 40 feet away. He also asked Tom Sims if he would like to join the Union. Wood said he was then discharged by Dudley Stamper on February 22, and that on this occasion Stamper told him he was "slowing down a lot." He testified that he had not been criticized or disciplined for any act of commission or omission in his work prior to his discharge. After receiving his check he walked to the office where his wife worked, and discovered that she too had just been fired .2 2 Supervisor Stamper said that Melvin Wood was unsatisfactory as a truck- driver, that Horace Hicks could not use him in his department and he had to take him back, but Wood was not interested in what he was doing; that he was slow, talked to others too much of the time and was reprimanded because of this; and said that he constantly had to tell him exactly what to do Stamper related that during the week of February 7 his department was moving to a new building and he told his men, including Melvin Wood, not to make any plans for that weekend as they would be needed. Stamper said Supervisor Stamper testified that during the morning of February 22, he instructed Melvin Wood to get some gas- oline out of the tank behind the new building for a "tow mortor," but 30 minutes later there still was no gas so he had to tell him once again, and then Wood got the gas from a filling station. Stamper said that Wood was the "poorest" employee he had, and at the time of his termination he was not aware of any union activity on the part of Wood. He testified that the decision to terminate Wood was entirely his and was based solely on his work performance, and the incident involving the gasoline for the tow mortor was the reason he decided to terminate Wood at the time he did. Wood places the tow motor incident a week before his termination, and said that he carried out his instructions as he understood them. Jo Anh Wood was hired by the Company in January, and initially worked in the parts department under the su- pervision of Calvin Hardy. However, on the week of her discharge, she was transferred to the office of George Frost in the extrusion plant as the regular full-time secretary in this office, Maggie Anderson, was to undergo surgery. Wood testified that at about 10 a.m. on February 22 she had to run an errand for Frost and when she returned to the office the signed authorization cards she had obtained from the three women employees that morning were missing from her purse.3 Shortly thereafter, Frost informed Jo Ann Wood that her work was unsatisfactory and discharged her. She then contacted Supervisors Hardy and Hicks and re- quested that she be returned to the parts department be- cause.she had been advised by them that such arrangements were possible if her assignment in the plant office did not work out, but Hicks informed her there were no openings available. The Company defends its actions by claiming that when Jo Ann Wood worked in the parts department she would not take suggestions from more experienced help, and that she was frequently late in reporting back to her duties following break periods. George Frost contended that February 21, Jo Ann Wood's first full day in the office by herself, was an unsatisfactory day for all concerned. He said that she had problems in properly handling phone calls, that she was unable to correctly operate the calculator, and that her typing speed was extremely slow. Frost testified that on the morning of February 22, he was told by Respondent's President Earl Robinson that Jo Ann Wood's work was unsatisfactory, and he was instructed to discharge her, but Frost admitted he had not yet complained to Rob- inson about her lack of secretarial skills. President Robinson maintained that Jo Ann Wood was terminated over events that occurred during the previous weeks. Robinson said that a week before, he and a customer were in the plant office and that Jo Ann Wood had comple- mented him on the car he was driving (a Mark IV), and then that Wood did not show up to help in the move , but on Monday morning told him he had been sick One other employee who did not show up was terminated , but Stamper said he did not want to discharge Wood if he was sick . Stamper testified that in the new plant or building it was possible to better observe Wood, and he continued in his old habits of talking to others and waiting to be told what to do. 3 The parties stipulated that on this date Supervisor Frost was advised by Brenda Smith, Elaine Stringer, and Violene Carter that Jo Ann Wood would not return their union authorization cards, and after being so advised Frost recovered the cards and then returned them to to the employees. KRESTMARK INDUSTRIES asked him what she would have to do "to get me one of those." Robinson said that at this time he did not know she was working for the Company. However, Robinson admit- ted that on the morning of February 22 he had been told there was "a girl" in Frost's office getting employees to sign up for a pay increase, but still insisted that his instructions given to Frost to terminate Jo Ann Wood were based on the car incident of the previous week. Secretary Maggie Ander- son offered testimony pertaining to the difficulties she en- countered while training Jo Ann Wood in the week of February 14 and said she did not consider her capable of handling the work. Maggie Anderson was asked whether the remarks made to Robinson by Jo Ann Wood about his car were "suggestive ," but Anderson declined to classify the remark on the grounds that she had not been acquainted with her long enough to really know. Conclusions The General Counsel contends that the discharge of Melvin and Jo Ann Wood is a "classic example of an em- ployer attempting to nip a union organizational drive in the bud," and after a careful review of this record I am in full accord. On the very morning of the discharges, Robinson ad- mits of being advised that "a girl's in the plant office was securing signatures and on cross-examination Frost admit- ted that on the same morning he received a call from Rob- inson advising him that three employees had attempted to get their authorization cards back from Jo Ann Wood, but were unable to do so, and as a result Frost took the authori- zation cards out of Wood's purse, as aforestated. Robinson then instructed Frost to discharge Jo Ann Wood. The lack of secretarial skills on the part of Wood be- comes of little or no importance to this case because Frost was the only one who had such knowledge, and he had not even advised Robinson of such deficiencies at the time he was told by Robinson to -fire her. It is not denied that on February 21 Frost gave corrective instructions to Wood concerning some of her work. As pointed out, such instruc- tions are to be reasonably expected of an employee in a new job assignment, but obviously the hasty decision to fire Wood was made by Robinson, and by the time he gave his instructions he knew all about her cardsigning activities and had already taken steps to physically remove some of the tangible evidence. The only remaining aspect is the contention by Rob- inson that Jo Ann Wood was discharged solely for an alleg- ed untimely and suggestive remark made to him in the presence of a customer, as previously mentioned. Wood denied making the specific remarks attributed to her by Robinson, but on the occasion in question admitted telling Robinson that "he sure had a pretty car" and that she would "like to have one." Regardless of the type of remark Wood may have made, and even assuming she did make the state- ment in the suggestive manner attributed to her, it is highly unlikely that Robinson would have waited a full week to discharge her over this incident had her remark or statement been deemed so offensive as now 'contended. Moreover, this record plainly reveals that union considerations definitely triggered the actual and true motivation for the termination 1041 as Robinson did not order Frost to discharge her until after he learned that Jo Ann Wood was the same girl who was engaged in having other employees sign authorization cards. The timing of this discharge in itself leaves no doubt whatsoever that it resulted solely from union activities. I submit, in fact, that it would be somewhat difficult to find a clearer case of discrimination than this one. The Respondent maintains that it had no knowledge as to the union activities of Melvin Wood. I consider this posi- tion absolutely untenable. So far as this record is concerned Melvin Wood was the original contact with the Union; he talked to a great many employees in the plant about the operations of the Company, and then on February 21 he and his wife started their drive in efforts to secure signatures on authorization cards. On the morning of February 22, Melvin Wood passed out numerous cards in the plant and on one occasion when doing so Manager Hicks was within a short distance from him, and on another occasion Super- visor Dudley Stamper was within the area. On the morning of his discharge Wood also asked Tom Sims if he would like to join the Union. Plant Superintendent Hicks admitted that he (Hicks) was the one who informed President Robinson of the fact that Jo Ann Wood was passing out cards, as aforestated, and then admitted that he had received this information from Tom Sims. In view of the above, I deem it a reasonable inference to conclude that Sims informed management that Melvin Wood was also engaged in activi- ties for the Union, and especially so since Wood had specifi- cally asked Sims on the morning of his discharge to join the Union. It further appears that Sims was informing manage- ment as to all union activities of the employees as Jo Ann Wood testified that Smith, Stringer, and Carter all wanted their cards returned because they had talked to Sims and had been told they would be fired for signing .4 The Respon- dent had knowledge of Melvin Wood's union activities from the close proximity of its supervisors while Wood was open- ly soliciting authorization cards in the plant and, therefore, could observe his actions and, as previously indicated, it can be readily deduced that Tom Sims also proved to be a rapid conduit of any and all information regarding union activi- ties.' Respondent contends that Melvin Wood was dis- charged because of his poor work habits, as detailed earlier herein. This record shows that Wood's immediate supervi- sor, Dudley Stamper, would quite frequently issue vague and general admonitions to all the employees in his depart- ment, but the Company has failed to show that the supposed discrepancies in Wood's behavior or work performance were ever specifically brought to his attention, nor was he ever warned that such continuations might result in dis- charge. In any case, it is obvious from this record that Stamper viewed Wood's work habits as relatively unimpor- tant until he was indentified with the Union. The General Counsel argues that the alleged failure on 4 The General Counsel also introduced testimony through Jo Ann Wood to the effect that on the morning of February 22, when she and her husband signed up two employees on the parking lot, as aforestated , Joe Bob, a leadman for the Respondent , observed the four of them as they walked from the Woods' auto on the parking lot to the plant entrance . Jo Ann Wood said that she glanced at him several times and each time he was watching them. s Sums was not called to testify by the Respondent, nor was it shown that he was unavailable. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the part of Wood to promptly obtain gasoline for the tow motor was nothing more than a pretext for his discharge, and in my opinion this record adequately supports his argu- ment. There is conflicting testimony as to the date of this incident. Wood said it happened a week prior to his dis- charge and Stamper contended it happened on the morning of February 22. Subsequent to the closing of the hearing in this case the Respondent asked to reopen the record for the admission of additional evidence showing a receipt for gas- oline dated February 22, but this motion was denied on the grounds that the Respondent had full opportunities to pre- sent any and all evidence and documents during the course of its defense, and no requests were then made for any additional time even though the document sought to be now adduced was within the Respondent's capability to pro- duce. However, even assuming the tow motor incident hap- pened on the morning of the discharge, it still remains in the category of a pretext in relation to this discharge. As a rebuttal witness Stamper suggested that this incident was the reason he decided to terminate Wood when he did, but on direct examination testified he informed Wood that he had to let him go because he was a slow worker and talked too much, and because he was always standing around. Had the circumstances involving the tow motor been of any real importance, it is most likely Stamper would have at least mentioned this matter to Wood at the time of the discharge when he was enumerating all the alleged reasons for the termination. It was obviously an afterthought. In proving his case the General Counsel also relied on certain comments made by Stamper a few days after the discharge. It seems that Melvin and Jo Ann Wood inadvert- ently met Stamper at a local drive-in, and to alleviate hard feelings between them Wood told Stamper he realized that he was just doing his job when he fired him. Stamper replied that the whole thing was over, and that Respondent did not want a union. One other facet of this case should also be noted. To fully accept the Respondent's defenses for the discharges, I would have to conclude that justifiable reasons for these terminations simultaneously existed, happened, and culmi- nated for both these two employees at practically the same time. I would also have to conclude that the sudden and abrupt termination, without warnings, of both a husband and wife on the same morning, were purely coincidental and had nothing to do with their engaging in union activities even though the Respondent's president and two top super- visors were specifically notified of card solicitations by the wife. I am not prepared to accept or make these conclusions and, accordingly, have found discriminatory discharges in both instances. IV THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. A broad cease and desist order is warranted in view of Respondent's dis- criminatory conduct and other violations. It has been found that Respondent unlawfully dis- charged Melvin and Jo Ann Wood on February 22, 1972. It will therefore be recommended that Respondent offer them immediate and full reinstatement to their former posi- tions, or if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other tights and privileges; and to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment of a sum equal to that which they would normally have earned, absent the discrimination, from the date of the discrimination to the date of Respondent's offer of reinstatement, with backpay and interest computed in accordance with the Board's es- tablished standards .6 It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay and the right to reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning 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 discharging Melvin and Jo Ann Wood on Feb- ruary 22, 1972, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent, Krestmark Industries, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership and activities in Local 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by discriminating 6 F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co, 138 NLRB 716. r In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Section 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. KRESTMARK INDUSTRIES in regard to the hire and tenure of employment of Respondent's employees in order to discourage member- ship. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Melvin and Jo Ann Wood immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of their discharge in the manner set forth in The Remedy section hereof. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant offices in Lewisville, Texas, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's repre- sentative, 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. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .9 8 In the event that the Board 's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modi fied to read : "Notify the Regional Director for Region 16, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1043 WE WILL offer to Melvin Wood and Jo Ann Wood immediate and full reinstatement to their former jobs or, if thosejobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority of other rights and privileges. WE WILL make Melvin Wood and Jo Ann Wood whole for any loss of pay they may have suffered as a result of the discrimination against them with interest at 6 percent added thereto. WE WILL NOT discharge or otherwise discriminate in regard to the hire and tenure of employment or any term or condition of employment of our employees because of their membership in and activities on behalf of the Union herein or of any other labor organization of their choice. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join or assist labor organi- zations, including the Union herein, to bargain collec- tively through a bargaining agent chosen by our employees, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. KRESTMARK INDUSTRIES, INC (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the rights to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Tele- phone 817-334-2921. Copy with citationCopy as parenthetical citation