Lewittes Furniture Enterprises, Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1979

244 N.L.R.B. 810 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewittes Furniture Enterprises, Inc. and Mary Sue
Speaks. Case II -CA 7925
September 4, 1979
DECISION AND ORDER
BY MIMBI;RS PliNll.lO., MURPHIY AND TRUESI)AI .
On May 17. 1979, Administrative Law Judge Rob-
ert W. Leiner issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an adninistrative 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 DO Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F:.2d 362 (3d (lr. 1951). We have carefully examined the
record and find nio basis for reversing his findings.
We also find no merit in Respondent's allegation o bias and prejudice on
the part of the Administrative Law Judge Upon our full consideration of the
record and the Administrative Law Judge's Decision. we perceive no evi-
dence that the Administrative I.aw Judge prejudged the case, made prejudi-
cial rulings. or demonstrated a bias against Respondent in his analysis or
discussion of the evidence.
The last sentence of the first paragraph of sec. Ill. A. of the Administra-
tive Law Judge's Decision reads: "Here, of course, there is no possible sug-
gestion of a contract violation with regard to a no-strike clause. since the
parties had entered into such contractual obligation." Inasmuch a there is no
evidence that Respondent is party to a collective-bargaining agreement cov-
ering the employees involved in this proceeding, it is clear that the Adminis-
trative Law Judge inadvertently omitted the word "no" prior to the phrase
"such contractual obligation." and we so find. Additionally. we note that in
the second paragraph of sec. II, B. of his Decision the Administrative Law
Judge inadvertently referred to employee Speaks, the Charging Party herein.
as a supervisor.
2 In view of their agreement with the Administrative Law Judge's finding
that the employees herein were not discharged strikers, Members Penello
and Murphy find it unnecessary here to reach the issues involved in Abilities
and Goodwill. Inc., 241 NlRB 27 (1979). in which they dissented.
3 In par. I(c) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language "in any other manner." However.
we have considered this case in light of the standards set forth in Hickmolt
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 the em-
ployees' fundamental statutory rights. Accordingly, we shall modify the rec-
ommended Order so as to use the narrow injunctive language "in any like or
related manner."
Respondent has excepted to the Administrative Law Judge's directive con-
tained in his recommended Order that it post a copy of the notice at its
factories and other places of business in Taylorsville, North Carolina. rather
than solely at its facility known as the polyplant. Since all of the unfair labor
practices herein were committed at Respondent's polyplant, we agree that
the posting requirement should be limited to that plant. and we shall modify
the Administrative Law Judge's recommended Order accordingly. See. e.g..
Puerto Rico Distillers. Inc.. 218 NLRB 729 (1975).
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 Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Lewittes
Furniture Enterprises, Inc., Taylorsville, North Caro-
lina, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I. Substitute the following for paragraph I(c):
"(c) In any like or related 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 following for paragraph 2(c):
"(c) Post at its facility known as the polyplant in
Taylorsville, North Carolina, copies of the attached
notice marked 'Appendix.' 3 Copies of said notice, on
forms provided by the Regional Director for Region
I, after being duly signed by Respondent's repre-
sentative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTIC(E To EMPLOYEES
POSTEI) BY ORDER OF THE
NArIONAL. LABOR RLArIONs BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice. We therefore notify you that:
WE WIL.I. NOT interfere with, restrain, or coerce
our employees by discharging them for engaging
in protected concerted activity or requesting a
wage increase or for engaging in other mutual
aid or protection.
WE WILL NOT fail and refuse to grant employ-
ees wage increases because they engage in pro-
tected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, as
amended.
244 NLRB No. 127
810
LEWITTES FRNITURE ENTERPRISES
Wi wll.l. make whole Mary Sue Speaks and
Ruby Lee Oxford, without prejudice to their se-
niority or any other rights and privileges previ-
ously enjoyei. for any loss of earnings they may
have suffered as a result of our unlawful action
against them, plus interest.
LiwiTrilS FURNIIIRI ENIERPRISES, IN(.
I)DEC( ISION
S IAIEMINI OF fill CASl
ROBHTRI W. LINFIR, Administrative Law Judge: This
case was heard before me in Statesville and Winston-Salem.
North Carolina, on March 12. 27. and 28. 1979 (pursuant to
a charge filed on October 19, 1978, by Mary Sue Speaks, on
behalf of herself and the other alleged discriminatee herein.
Ruby Lee Oxford), on an amended complaint and notice of
hearing dated March 6 1979. The original complaint was
issued December 6. 1978. Respondent filed both a timely
answer and an amended answer to the complaint allega-
tions.
The amended complaint alleges, in substance, that on or
about July 12, 1978. Lewittes Furniture Enterprises. Inc.
(herein called Respondent). in violation of Section 8(a)(I) of
the Act. discharged Mary Sue Speaks and Ruby Lee Ox-
ford because they engaged in the protected concerted ac-
tivity or requesting a wage increase. The amended com-
plaint also alleges that on November 14, 1978, Respondent
unlawfully failed and refused, in violation of Section 8(a)(1)
of the Act, to grant the two alleged discriminatees pay in-
creases because they engaged in the aforesaid protected ac-
tivity after Respondent had offered them reinstatement and
they had accepted it.
Respondent admits the jurisdictional allegations of the
complaint as well as many of the allegations relating to the
supervisory capacity of certain of Respondent's agents. Re-
spondent affirmatively alleges, contrary to the complaint.
that Oxford and Speaks "left" their employment and re-
turned to work on or about November 6.'
Upon the entire record in this case and from my observa-
tion of the demeanor of the witnesses, and after due consid-
eration of the briefs filed by General Counsel and Respon-
dent subsequent to the close of the case. I hereby make the
following:
FINDINGS OF FACT
I. HF BUSINESS OF RESPONDENT
Respondent admits that it is a Delaware corporation with
plants in Taylorsville. North Carolina. where it is engaged
I Respondent's motions to dismiss the amended complaint are hereby de-
nied. At one time during the hearing. Respondent argued that even if Oxford
and Speaks were unlawfully discharged, no backpay would be due them.
since the) were engaged in an economic strike and did not unconditionally
offer to return to work until their actual return on or about November 20.
1978. In view of my disposition of the case. I need not reach or rule on this
defense. But see Abilities and Goodwill, Inc, 241 NLRB 27 (1979).
in the manufacture of furniture and that in a representative
period, the past calendar year. it purchased and received
from points directly outside the State of North Carolina
goods and materials valued in excess of $50,000 and also
shipped finished goods of that value from the State of
North Carolina to points directly outside the State in the
same period. I conclude that Respondent is an emploser
engaged in commerce within the meaning of Section 2(2).
(6), and (7) of the Act.
II. HtI AI.l.E(;EI) UNFAIR ABO()R PRAt II( :S
Respondent Lewittes Furniture Enterprises. Inc.. is en-
gaged in the manufacture of upholstered living room furni-
ture in two plants in Taylorsville. North Carolina. where it
employs a total of about 580 employees.
The amended complaint alleges. Respondent's answer
admits, and I find that the following persons are supervisors
and agents of Respondent within the meaning of Section
2(11) of' the Act: (I) Joseph Meister. Respondent's vice
president of production and engineering, chief supervisor at
the Taylorsville plants: (2) Tommy R. Kirby. its director of
personnel: and (3) Jonie Wike. its foreman in the "poly-
plant." Respondent denied in its answer (and at the hear-
ing) that Alvin Gene Clark. its director of purchasing was a
statutory supervisor. At the hearing, however. Respondent
admitted that Clark was the chief official of Respondent in
Taylorsville charged with purchasing and that he controlled
four employees in the purchasing department, at least inso-
far as he had the power to grant them time off, make effec-
tive recommendations regarding their wage increases, and
subject them to discipline. On the basis of these admissions.
I further conclude that Alvin Gene Clark, director of pur-
chasing, is a supervisor and agent of Respondent within the
meaning of Act.?
The alleged unfair labor practices here relate solely to
five employees employed in Respondent's "polyplant." a
separate building devoted to the cutting. bundling, and sup-
plying (to Respondent's two plants in Taylorsville) of poly-
urethane foam cushioning for the armrests and cushions in
the living room furniture which Respondent manufactures.
The five employees employed there, at material times relat-
ing to this proceeding. were Ray Keller. Wesley D. Phin-
ney. Robert Jones (essentially a truckdriver), and the two
alleged discriminatees herein. Mary Sue Speaks and Ruby
Lee Oxford.
The facts, based on contradictory oral testimony of wit-
nesses called by the opposing parties. have been resolved
principally in favor of three of General Counsel's witnesses.
the two discriminatees and Wesley D. Phinney. In particu-
lar, to the extent that Speaks, Oxford. and Phinney contra-
dict Meister. Clark. and Kirby. I have in most cases cred-
ited the former and discredited the latter. I have also taken
into account the testimony of Jones and Keller. With re-
gard to Meister. I have discredited him on three grounds:
2 The record demonstrates that three employees (Jones Keller, and Phin-
ney). who were discharged by Respondent on July 12. were solicited to re-
turn to employment by (Phinney) or sought reinstatement from (Jones and
Keller) Clark. the director of purchasing. rather than from Kirby. the direc-
tor of personnel. This Incongruity was never explained.
811
DI )(ISIONS OF NAIIONAL I.ABOR RELATIONS BOARD
(I) Clearly, on the grounds of' demeanor, I noticed extreme
hesitanc in his testimony and a certain evasiveness in an-
swers given to leading questions on cross-examination: (2)
his testimony was liarked with forgetfulness on many ma-
terial issues with which he should have been, as Respon-
dent's chief officer. fully familiar relating to the termination
of the two alleged discriminatees: and (3) the circumstances
which demonstrated that Respondent's defense that the two
alleged discriminatees had "left" or "quit" their employ-
ment was totally without foundation and contradicted by
witnesses, including his own foreman, Wike, and employees
Keller and Jones, who were obviously favorable to Respon-
dent. In this respect, documentary evidence and Respon-
dent's own admissions showed that the two discriminatees
had been terminated as a matter of discipline and had not
voluntarily "quit" or "left."
Keller, promoted to assistant foreman on September 9.
1978, was not a credible witness. Observation of his discom-
fort on the witness stand caused special attention to be
given to his testimony. His contradictory testimony con-
cerning whether he and other employees conditioned their
return to work on receiving a pay raise, as pointed out by
General Counsel, underscored his unreliability. General
Counsel may have called him to avoid any adverse infer-
ence flowing from failure to corroborate the testimony of
alleged discriminatees. Nevertheless, I observed Keller to
be sympathetic to Respondent and, to that extent, hostile to
Speaks and Oxford. Contrary to General Counsel's euphe-
mism, I do not conclude that Keller was "mistaken" in his
contradictory testimony. See infia.
In any event, the evidence shows that the jobs of the two
alleged discriminatees in the polyplant were the same: they
would receive their work orders from the polyplant fore-
man. Jonie Wike, who received his orders via telephones
located both in his polyplant office and near the polyplant
cutting table. Having received their orders from Wike for
shipment of polyurethane pieces, Speaks and Oxford would
fill the orders, placing the polyurethane pieces on buggies
and rolling them out for loading on a truck which would
take them to the other two Taylorsville plants, where they
would be used as cushioning.
In early June 1978, apparently in separate conversations
with foreman Jonie Wike, the two discriminatees, Speaks
and Oxford, told him that they should have a wage in-
crease. To each of these statements Wike said, "I don't see
why not."
In late June Speaks and Oxford again had conversations
with Wike in Wike's office in the polyplant. They told
Wike, in separate conversations, about a week before July
4. that they hoped to get a raise after July 4. Wike made no
adverse remarks. Last, in late June, in Wike's office, the
polyplant employees, except Robert Jones, in the absence
of Wike, met and decided to ask Vice President Meister for
a raise. At Keller's suggestion, they agreed to ask for a 25-
cent raise rather than a 15-cent raise and, according to Kel-
ler. not to work without getting the pay raise. Although
they agreed to make this request on the day following the
week of vacation starting on July 4, that is, on July I , in
fact they apparently made their request on the morning of
July 12, 1978.
The Employees Meet With Vice President Meister on the
Morning of July 12. 1978
The workday is from 7 a.m. to 3:30 p.m. Ordinarily. al-
though the employees punch the timeclock sometime imme-
diately before 7 a.m., they do not begin work at that time.
but rather arrange their pocketbooks and lunch bags and
perform similar personal chores. Wike seldom arrives punc-
tually at 7 a.m., but rather arrives some minutes thereafter
each morning. Often there is no work for the employees to
do at starting time (7 a.m.) by virtue of the fact that no
work orders remain unfilled from the previous day. Work
actually begins for the polyplant employees when the tele-
phone rings and Wike records the orders required for ship-
ment out to the other two plants. On other occasions, orders
not executed at the end of the prior workday are performed
at 7 a.m. On still other occasions, suppliers' trucks arrive
and are required to be unloaded. On the morning of July
12, indeed, a supplier's truck arrived at the polyplant for
unloading some minutes after 7 a.m. By that time, however.
all the polyplant employees were inside the polyplant, and I
find that the employees inside did not know of the existence
of the supplier's truck outside, which was ready for unload-
ing, until about 7:40 a.m.
On the morning of July 12, in fact, there was no work to
be performed from the prior day, and no telephoned orders
had come in to the employees either before Jonie Wike
arrived, immediately before 7:15 a.m., or immediately
thereafter.
After the five polyplant employees arrived in the poly-
plant, they put on their work aprons, left the work area,
walked to the "break area," sat at the lunch table and
waited until Foreman Wike came into the plant through the
break area door at about 7:15 a.m. Wike, seeing the em-
ployees seated at the table, asked them what their "prob-
lem" was. Ray Keller, who. it was agreed in the meeting I
week before, would be the spokesman for the group, told
Wike that they wanted to talk with Vice President Meister
about more money and asked Wike to get Meister. As Wike
left the group he asked Jones to get his truck for loading,
Jones told Wike that he was "with the group," and Wike
left to telephone Meister. At about 7:30 a.m. Wike and
Meister came into the break area, where Meister found the
five employees sitting at the table where they ordinarily ate
lunch. I credit the version of what happened next in accord-
ance with the testimony of Speaks and Oxford. as substan-
tially corroborated by Wesley Phinney and partially cor-
roborated by Keller and Jones. I reject Meister's, Kirby's,
Clark's, and other witnesses' contrary versions.'
3 Keller, as above noted. promoted by Respondent to assistant foreman in
the polyplant. was a hesitant witness, often suspiciously forgetful of events,
whose testimony I credit only insofar as it is consistent with that of Phinney.
Speaks. and Oxford. Robert Jones' testimony is credited on the same basis.
Jones got his job back with Respondent upon the intercession of his father.
an employee of Respondent, with Purchasing Director Gene Clark Keller's
testimony, on recall by General Counsel, that he told Wike on that morning
that "we all were going to sit there and wasn't going to do nothing till we got
25-cent more an hour" and his similar testimony on cross-examination are
specifically rejected in view of his testimony on direct examination. 15 nun-
utes earlier, as General Counsel's witness:
Q Now on that morning [July 121 did you state that you would not
gol back to work unless you got a raise?
812
LEWITTES FURNITURE ENTERPRISES
When Meister walked in he asked: "What the hell is
going on?" Keller said that they wanted to speak to him
about getting more money, and Meister responded by say-
ing: "That's a hell of a way to get it." He also told them
that the employees knew the way to get a raise.' When
Mary Speaks said, "We want to talk to you about a little
money because we thought we deserved it." Meister an-
swered, "Get the hell out, out, out." He repeatedly thrust
his thumb at the plant door when he said "out, out, out.'"
Speaks then said that if Meister would give them their lay-
off slips and paychecks, they would leave. Meister asked
Wike to give him their names, and Meister and Wike left.
Meister had been there no longer than 5 to 8 minutes. As
soon as he left, and certainly within a few minutes, Person-
nel Director Tommy Kirby and Purchasing Director Gene
Clark arrived in the polyplant. Clark and Keller discussed
the relative earnings of the employees, and Keller said that
he thought that he should have a raise. Somewhere within
15 minutes of their arrival, Kirby and Clark told the groups
that there was no more money and that their cards had
been "pulled," and Kirby said. "I guess that's that." The
employees waited there for a minute or two and then, some-
time after 8 a.m., proceeded to the timeclock, but found
that their cards were not there. It was stipulated at the
hearing that the employees' timecards were all punched at
about 7:57 a.m. The undisputed and credited evidence
shows that none of the five employees punched their cards
out.
A. I don't really remember.
Q. Did you hear anybody else say it?
A. No, I don't really remember.
Q. Did anybody tell you to go back to work?
A. I don't really remember that either.
Similarly, I do not credit Supervisor Wike, Clark, and Kirby Clark. how-
ever, testified that he did not ask Oxford and Speaks to return to work after
they were discharged (see infra) because they failed o telephone him. Yet
Clark, who finally admitted telephoning Phinney to ask him to return to
work, informed Wike that he would have telephoned Keller to return even if
Keller had not previously telephoned Clark. requesting reinstatement: "f he
hadn't called me. I would have called him." The disparate treatment ac-
corded the two discnminatees, therefore. is readily apparent and is not based
on their failure to telephone Clark but rather on another criterion: Clark's
conclusion that Oxford and Speaks were the ringleaders in the "work stop-
page." See infra. Both Clark and Kirby spoke to the five polyplant employees
at the same time in the morning of July 12. Kirby had no recollection of any
employee refusing to work; Clark testified that all the five employees ada-
mantly refused to work unless they received the pay increase. Where Re-
spondent asserts that Kirby corroborates Clark in that Clark twice asked the
employees to return to work, and they twice refused to work unless they
received a wage increase, it cites Kirby's equivocal testimony on the point.
But Respondent fails to note that on cross-examination. when Kirby was
confronted with his pnor contrary sworn statement. Kirby admitted that he
could not recall any employee making such a statement. I do not credit
Kirby or Clark.
4 The way to get a pay raise was, according to Meister, to receive the
recommendation of the foreman or, with new employees. automatic pay
increases. As I understood Meister, he was not alluding to the existence of a
unilaterally established grievance system. There is no evidence of the exis-
tence of a grievance system relating to wage increases in Respondent's Tay-
lornville plants. Cf J. P. Hamer Lumber Company, Division of Gamble Broth-
ers, 241 NLRB 613 (1979): Advance Industries Division-Overhead Door
Corporation 220 NLRB 431 (1975), enforcement denied in part and granted
in part 540 F.2d 878 (7th Cir. 1976). Nowhere does Respondent suggest that
the existence of any grievance procedure would deny the employees the
protection of the Act.
5 All witnesses to the event contradict Meister's denial.
Respondent's witnesses incredibly testified that they did
not know who punched the cards out, but Meister, between
9 and 10 a.m., brought the five cards to Personnel Director
Kirby and told him to fill out pink slips which would indi-
cate to Respondent the separation of the employees. Kirby
did not execute Meister's order for the three male polyplant
employees, because, as he testified, they were "coming
back." At least on this record, such testimony is incredible.
Obviously, he could not know they were coming back when
Meister brought him the five timecards at about 9- 10 a.m.
when, on this record, Jones did not return until 11:45 a.m.
on that day. Phinney did not return until even later in the
afternoon. and Keller, according to his testimony, did not
even telephone Clark until 2 p.m. of that day. Clark did not
even call Phinney to return to work until about I p.m. of'
that day.
At any rate, Purchasing Director Clark and Jones' father
telephoned Jones later in the morning on July 12 and asked
him if he would return to work if he could get his old job
back without a pay increase. and Jones agreed. Jones
punched in at 11:58 a.m. on the same da) that his card was
punched out. July 12.
The record further shows that Ray Keller punched in his
card at 7 a.m. on the next day, July 13.
With regard to Wesley Phinney, he punched in at 2 p.m.
on July 12. Phinney testified, and I credit him. contrar to
the testimony of Clark, that Clark telephoned him at his
home at 1:30 p.m. on July 12 and offered him a pa raise to
come hack to work and that by 2 p.m.. after the promise of
the wage increase, Phinney punched back in. Further. Phin-
ney credibly testified that, at the beginning of the conversa-
tion. Clark told him that Wike needed somebody to help
him, that Clark stated that he thought it was the "women's
idea of going on strike." and that Clark would "take it into
consideration" [i.e.. had taken it into consideration] in ask-
ing Phinney to return to work. When Phinney told him that
he did not know whether he would want to return, it was at
this point that Clark said that he would give Phinney a pay
raise it he would come back. Thus. Phinney agreed to re-
turn and punched in a half hour later. As will be seen here-
after. he did not receive a wage increase until 2 months
thereafter.
Contrary to Clark's. Meister's, and some of Keller's testi-
mony. I credit Speaks. Oxford. Phinney. and Supervisor
Kirby. who, in substance, denied that at the July 12 morn-
ing confrontation any Respondent supervisor asked them to
return to work and further denied that the polyplant em-
ployees told Wike or Meister that they would refuse to
work unless Respondent gave them a pay raise. I have spe-
cifically credited Keller that such an agreement was made
among the employees I week before the July 12 confronta-
tion. Keller's testimony that this conditional ultimatum was
nevertheless not delivered to Wike on July 12 is also cor-
roborated by Phinney and Jones.
The Events of Friday, July 14. 19786
Prior to Friday. July 14. Speaks telephoned Personnel
Director Tommy Kirby and asked him when she could pick
6 Each Friday is payday. The pay period ends the preceding Friday.
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up her check. He told her to pick it up on Friday, July 14.
Whereas Clark had told Phinney that he thought it was the
"women's idea of going on strike," Kirby testified that he
was very sorry, and indeed sad, that the two women were
no longer employed, and he wanted them to return to em-
ployment. Nevertheless, there is no indication that Kirby,
when Speaks telephoned him, asked her to return to work.
When Speaks went in to pick up the check, she spoke to
Foreman Wike in the back of the polyplant. She asked him
why Respondent had not called Oxford and her back to
work (Phinney, Jones, and Keller were already working),
and Wike told her that he did not know, but that if he had
anything to do with it, none of them would have been re-
called to work. She also recalled telling Wike, either on July
14 or I week later, when she came to pick up the balance of
her pay, that it had been a "dumb idea" that she had lis-
tened to Keller in asking for a pay raise.'
On Friday afternoon, July 14, Speaks saw Tommy Kirby,
and he gave her her paycheck and a pink layoff slip. Oxford
received her paycheck and a similar layoff slip. Their mutu-
ally corroborative testimony, which I credit, is that the lay-
off slips said, on their face, that they had been "discharged
for misconduct." Speaks and Oxford did not go together for
their paychecks but rather received them separately on July
14. The layoff slips were pink in color, and typewritten at
the top were the name of Respondent and its address.
Speaks, who had a greater recollection as to the substance
of the layoff slip, recalled that the words on her slip were:
"dismissed for bad conduct."
Oxford and Speaks testified that they needed these pink
layoff slips to collect unemployment compensation under
the laws of the State of North Carolina. Both Speaks and
Oxford visited the unemployment office on July 12, after
being terminated, and were told to return the next week,
when they had their layoff slips. They thereafter received
the layoff slips from Tommy Kirby's secretary on Friday,
July 14. When they presented these layoff slips at the North
Carolina unemployment office on about July 19, the state
agent tore up the pink slips and threw them in the trash can
after telling them, as I understood their testimony, that the
State was not bound by Respondent's reason for the termi-
nation and that, in the past, where the termination had
been for "cause," the claimant could not obtain unemploy-
ment compensation from the State. At the hearing Respon-
dent searched its records for copies of such layoff slips
(which had been subpenaed by General Counsel) and not
only could find no such copies but also denied that any
such layoff slips existed. I do not credit Respondent. Oxford
and Speaks both received unemployment compensation.
The documents executed by the state unemployment
compensation department carry the following typewritten
notation:
'Wike's estimation of the value of Speaks and Oxford as employees is
informative. Speaks testified that prior to July 4 Wike told her on several
occasions that he was pleased with her and Oxford's work and liked the way
they kept the shop. Phinney testified that 2 weeks after he returned to work.
he asked Wike if the two discnminatees were going to be reemployed. Wike,
according to Phinney's credited testimony, said that he did not know and
that he did not care, but that he was "thinking about firing them anyway
because all they could do was bitch all the time." I conclude that both
conversations occurred, but note that the latter, of course, occurred after
Oxford and Speaks were terminated.
Your being discharged from Lewittes Furniture Enter-
prises because you were one of a group seeking a con-
ference with management regarding a wage increase.
does not constitute misconduct in connection with the
work.
These documents (G.C. Exhs. 5 and 6) also carry on their
faces the statements that any interested party has the right
to appeal and that the appeal rights with regard to these
two determinations expired, respectively' August 17 and 18.
1978. The record demonstrates, and Respondent admits.
that no appeals were taken from these North Carolina de-
terminations even though Respondent had prior notice
thereof. Kirby, whose regular duties included contesting
such claims, failed to appear. because, as he somewhat ob
scurely testified, he "didn't want to contest it."'
On October 27. 1978, 8 days after the instant unfair labor
practice charge was filed. Vice President Meister addressed
a memorandum (G.C. Exh. 2) to another official of Respon-
dent. Treasurer Stan Frey. in which he characterized the
separations of employees in the polyplant as "layoffs."
When first asked whether he wrote such a memorandum
characterizing the separations as layoffs. Meister denied
having written it. He then switched to not recalling having
written such a memorandum and then, when shown the
document itself, admitted writing the document and char-
acterizing the incidents as layoffs, but said that he did not
"intentionally" characterize the incidents as layoffs.
The Pay Increases of September 9. 1978
As above noted, Respondent requested or permitted em-
ployees Phinney, Keller, and Jones, whom it had dis-
charged on July 12, in the morning, to return to work. Jones
was asked to return within a few hours of his being termi-
nated, and Phinney returned in the afternoon of July I.
accompanied by Clark's promise of a wage increase. Keller
punched in. as above noted, the next day, July 13. in the
morning.'
At the hearing it was stipulated that on September 9.
1978. Phinney. Keller, and Jones received wage increases:
Phinney. from $2.90 to $3.05 per hour: Keller. from $4 to
$4.25 per hour; and Jones, from $3.15 to $3.40 per hour.
Meister testified that he did not authorize the pay raises
but merely approved the suggestions and recommendations
of the supervisors. Meister and Respondent's corporate sec-
retary, Edith Claman, testified that these pay raises were
I Respondent asserts that Respondent directed Kirby to appear at these
hearings but that he did not do so in contravention of its direct order. Re-
spondent did not explain why Kirby disobeyed its order and did not suggest
what consequences, if any. Kirby suffered from his disobedience.
I To the extent that Respondent's witnesses (Supervisors Kirby and Clark)
testified that these employees telephoned Respondent seeking reinstatement
and that they (Respondent) did not telephone the employees I do not credit
their testimony. Rather. I find that Respondent contacted the employees
(with the exception of Keller) and sought their return. Clark admitted that he
would have telephoned Keller if Keller had not called him. Even if Keller
telephoned Respondent, and Respondent did not telephone Keller, I do not
credit Keller's testimony that he first learned that Jones and Phinney had
returned to employment when Supervisor Clark told him this during his
telephone call to Clark on the afternoon of July 12. Rather, I conclude that
he knew of these reinstatements prior to his call to Clark in the afternoon of
July 12 and that his call, indeed, was made to seek his own reinstatement.
814
I.EWITTES FURNITURE ENTERPRISES
part of pay raises authorized by Respondent's board of di-
rectors covering the entire plant on a departmental basis.
Although they testified that these pay raises were "merit"
increases and that each individual was reviewed on an indi-
vidual basis, Meister testified that the pay raises given to
Phinney, Keller, and Jones were a "general increase for the
poly plant."
Kirby testified that Oxford. on July 12. had a pay in-
crease "in the pipeline" which was based, automatically. on
length of service, without regard to the quality of her work.
As above noted, although Wike appeared to change his
appreciation of the quality of work that Oxford and Speaks
performed when he told Phinney that he regarded them as
constant complainers and did not want them reinstated. I
credit Oxford's and Speaks' testimony that Wike told
Speaks that he liked the way that she and Oxford per-
formed their jobs and, in response to questions of pay raises
as late as June 1978. told them. "Why not?" when they
asked for more money.
The Events of November 6. 1978
Between Speaks' and Oxford's early mid-July appear-
ances at the North Carolina State Unemployment Commis-
sion and the events of early November 1978, there was no
contact between Respondent and the two alleged discrimi-
natees, except that. on October 19. 1978. Speaks filed the
underlying unfair labor practice charge against Respondent
on her own and on Oxford's behalf. The record shows that
a copy of the charge was received by Respondent on Octo-
ber 21. 1978 (G.C. Exh. I(b)).
On November 6. 1978, Vice President Meister sent iden-
tical letters to Oxford and Speaks ((;.C. Exhs. 3 and 4:
It has come to our attention that there was a misun-
derstanding surrounding your leaving our employ.
You are welcome to work at the same job.
Speaks and Oxford received the letters on November 9.
contacted Respondent, and went to see Meister. On No-
vember 14 Oxford visited Meister in his office and asked
him if she and Speaks were going to get the September 1978
raise. She testified that Meister said (and Meister was not
recalled to deny) that no one got a raise in the polyplant in
September and that she would have to return to work at the
same rate ($2.90 per hour) as when she was terminated. She
and Speaks agreed to return, and they did so on November
20, 1978.
I credit Oxford's testimony and conclude that Meister
was untruthful in stating that the other polyplant employ-
ees had not received wage increases in September 1978.
111. DISCUSSION AND (CON(CIUSIONS
A. The Polyplant Employees Were Engaged in Protected,
Concerted A ctivity
At this late date there can be no question but that the
gathering of a group of employees to peacefully request a
wage increase from their employer is a concerted activity
protected by the Act where, as here, such activity is not
unlawful, violent, in breach of contract, or otherwise "in-
defensible." N.L.R.B. v. Waco Insulation, Inc., 567 F.2d 596
(4th Cir. 1977). The reasonableness or prudence of the
group's action in making the request is an irrelevant consid-
eration. N.L.R.B. v. Washington ,41lurinur (Conmpanv, Inc.,
370 U.S. 9 (1962); Waco Insulation,. Inc., supra. Even short
refusals to return to work, where refusal to return to work is
made during a confrontation with the emploer's represent-
ative concerning the request for the wage increase. is not
considered insubordination. N.L.R. B.v. Waco Insulation,
Inc.. supra at 599, 600. Moreover, even where employees
cease work during working hours for the purpose of gaining
information from the employer in the midst of a protected
concerted activity and are not attempting by that verb act
to bring economic pressure on the employer to submit to
their demands, the Board has held that such a brief work
stoppage is not in violation of a no-strike provision in a
collective-bargaining agreement. Netport News Shphbuild-
ing & Dry Dock C(tnpaont, 236 NLRB 1470 (1978). It would
appear, further, that this rule would apply a rilor where
the work stoppage does not interfere with production. Cf.
Aevport News. Shipbuilding & D Dock (npoln, sl ra.
Here, of course, there is no possible suggestion of a contract
violation with regard to a no-strike clause, since the parties
had entered into such contractual obligation.
In the instant case the evidence shows that the five pols-
plant employees, including the two discriminatees. had
handed together in late June 1978, approximlatelN 12 days
before the July 12 termination, and agreed upon concerted
action to request the wage increase. Under the above-cited
authorities, they were engaged in protected activli, within
the meaning of Section 8(a)( ) of the Act. and I so lind.
Further. the evidence shows that at the time of the 7:15
a.m. meeting with Foreman Wike and thereafter in their
meeting with Wike and Meister, while there was work on
hand for them to perform (the unloading of the supplier's
truck), they were not aware of it, and Wike had not ordered
them to perform any work or to leave Respondent's prem-
ises: there was no work bfor the employees which had come
in pursuant to any telephone work order: and Jones' state-
ment that he was "with the group" and his failure to get his
truck for purposes of future loading, in the midst of a pro-
tected concerted activity. does not constitute insubordina-
tion under N.L.R.B. v. 'Waco Insulation. Inc., supra (the
"Rexrode" incident). The employees were engaged solely in
a request for a wage increase, which conduct lasted from
about 7:15 to approximately 7:40 a.m. This failure to leave
the breakroom during that period does not convert such
conduct into a strike, especially since the employees not
only were wearing their work aprons but also, having re-
ceived no order to leave the premises or commence work.
manifested no intent not to work. On the basis of the testi-
mony of Oxford, Speaks. Phinney, and Kirby, and contrary
to the testimony of Meister, Clark, and, where it is not
inconsistent, Keller, I conclude that the employees, regard-
less of their June agreement, delivered no ultimatum on
July 12 to Meister or Wike. or to any other supervisor.
refusing to work if they did not get a wage increase. As in
N.L.R.B. v. Waco Insulation. Inc., supra, and Ne.port News
Ship Building & Dr' Dock Co., supra, therefore. the employ-
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees here were asking for a wage increase, but were not put-
ting economic pressure on the employer with a work stop-
page to gain an economic demand or even refusing an order
to go to, or to return to, work, which give rise to the conclu-
sion that they were engaged in an economic strike. On the
contrary, the employees were at all times prepared to go to
work and were merely seeking an audience for their request
for more money. Thus, I conclude that the employees were
engaged in a protected activity but were not engaged in an
economic strike.
Even if the employees were engaged in an economic
strike, however, they would nevertheless be engaged in a
protected concerted activity, which would prevent Respon-
dent from taking reprisals against them affecting their jobs,
especially, as here, the discharge of the participants. Even
the remedy, reinstatement with backpay from the day of
discharge, would be the same. Abilities and Goodwill, Inc.,
241 NLRB 27 (1979).
B. Speak.v and O.jfirrd Were Discharged in Violation of
Section 8(a)(l)
The evidence shows that after the employees asked Wike
to have Meister come down to speak about more money, it
is clear that Wike told Meister, before Meister entered the
polyplant, that the employees, in a group, were not working
and were seeking information regarding a wage increase. It
seems to me that this explains Meister's explosive entry into
the plant break area, where his first question to the assem-
bled group was: "What the hell is going on?" After Keller
and Speaks told him that the employees wanted more
money, Meister told them: "[T]hat's no way to get it," and
"Get the hell out, out, out." It was only after this declara-
tion by Meister, the chief supervisor, that the employees
asked for their layoff slips and paychecks. Supervisors Kir-
by and Clark appeared shortly thereafter on the scene and
told them that there was no more for them, and Kirby said,
"I guess that's that." Their timecards were then punched
out by Respondent, and the employees left the premises. All
of this happened before 9 a.m. I conclude that Meister, by
causing their cards to be punched out after telling them to
get out, discharged the five employees on July 12, 1978,
whether they were engaged in a protected economic strike
or, as I have found, were engaged in a protected concerted
activity other than an "economic strike." I further conclude
that Respondent's conduct in this discharge of the two dis-
criminatees herein violated Section 8(a)(l) of the Act.
The record shows further evidence of this discharge. A
few days later, on July 14, 1978, while picking up their
paychecks, Speaks and Oxford were handed pink termina-
tion slips by Supervisor Kirby. The termination slips noted
that the purpose was for unemployment compensation and
that the employees had been discharged for misconduct.
Moreover, 3 months later, Meister characterized the termi-
nations as layoffs. Under these circumstances, it is incon-
ceivable for Respondent to seriously defend the theory that
Speaks and Oxford had "left" or "quit" their employment
on July 12, 1978. Rather, the evidence, as noted above,
demonstrates that Respondent, retaliating against the em-
ployees for seeking a wage increase, discharged them on
July 12, 1978, for engaging in that protected concerted ac-
tivity. N.L.R.B. v. Waco Insulation, Inc., supra at 599. 600,
and cases cited therein. Respondent immediately sought or
obtained the reemployment of Phinney, Keller. and Jones
but unlawfully retaliated against Speaks and Oxford in not
seeking their return, because, as Supervisor Clark told Phin-
ney on July 12, it was the "women's idea to go on strike."
That is the basis of Respondent's hostility.l 0
C. Respondent Failed to Grant the Two Discriminatees
Raises on November 20, 1978
The evidence shows that Oxford had a pay increase al-
ready approved and that all three employees in the poly-
plant whom Respondent called backed or instated after dis-
charging them (Keller, Phinney, and Jones) received wage
increases on September 9, 1978. Since Phinney. employed
at the same rate of pay as Speaks and Oxford, $2.90 per
hour, received a 15-cent-per-hour wage increase and since
Keller and Jones, who had higher wage rates, received a 25-
cent-per-hour wage increase, it is likely that the two dis-
criminatees, like Phinney, would have received at least a IS-
cent-per-hour wage increase (or. in Oxford's case, perhaps
an additional, if not an earlier, increase). However, that
matter can be made clear in a backpay proceeding if such is
required. All that is decided at this juncture is that had
Speaks and Oxford not been unlawfully discharged, they
would have received a wage increase on September 9. 1978,
as part of the "general increase in the polyplant." I reject
Meister's and Clark's testimony that the wage increases
granted to the three other recalled polyplant employees
were "merit" increases, notwithstanding a variation in the
size of the increases and notwithstanding that some subjec-
tive input went into the calculation of the raises. Laredo
Coca Cola Bottling Companv. 241 NLRB 167 1979. Rather,
I credit Oxford's and Speaks' testimony that Wike told
them, before July I1I, that he liked their work, and i infer
ID Having received the unfair labor practice charge on or about October
21, 1978, Meister's belated November 6, 1978. offer of reinstatement to
Speaks and Oxford seems to me to have been a device to minimize backpay
liability. The "misunderstanding" which he describes in his offer of reinstate-
ment surrounding their "leaving" Respondent's employment was never ex-
plained by Respondent (G.C. Exhs. 3 and 4). Respondent argues that since
Oxford knew that the three polyplant employees had returned to work. she
should have known that herjob was hers for the asking and that she, like the
three other returning employees in the polyplant, had not been discharged.
However, Respondent could have told her that on July 14 when she picked
up her check after the three other polyplant employees had already returned.
If Kirby was as sad and remorseful at their departure and as desirous for
their return to work as he testified, that offer could have well been made
before November 6. The first suggestions by Respondent that the discrimi-
natees' jobs were available were not until Meister's November 6 letters, 2
weeks after the charges were filed. Clark was so anxious to have Keller
return after Phinney and Jones had returned that he would have telephoned
Keller, had Keller not telephoned him. Why had not he or Kirby telephoned
Speaks and Oxford? Even less understandable, as above noted, is Personnel
Director Kirby's testimony that he regarded the two discriminatees as long-
time, loyal employees, was sad at their departure, hoped that they would
return, did nothing to have them return, and did not oppose their claim for
unemployment compensation even though he received notice thereof and it
was part of his job to contest the claims. As director of personnel. Kirby
could well have taken action well before this. Moreover, Kirby's estimation
of the quality and loyalty of the discriminatees is rather inconsistent with
that of their supervisor, Wike, who, post-July 12. said that he wanted to fire
them anyway because of their constant bitching.
816
IEWITTES FURNIIFURI ENTERPRISES
that but for their participation in the JulI 12 confrontation.
Wike would have recommended them for "merit" increases
as he did the three other polyplant employees.
In view of the f:ct that ('lark, quoted by Phinne) and
speaking for Respondent believed that Oxford and Speaks
were responsible for the "strike," conclude, on the basis of
all the evidence, that but for the unlawful retaliation
against them. Respondent would have granted Oxford and
Speaks wage increases at that time. I therefore conclude
that Respondent unlawfully failed to and refused to grant
them wage increases on November 20, 1978. when they re-
turned to work, and that the pay raises would have been.
and should be, dated September 9. 1978.
CO()N(I.USI(NS OF LAVW
1. Respondent, Lewittes Furniture Enterprises, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discharging its employees Mary Sue Speaks and
Ruby Lee Oxford, on July 12, 1978, and by failing to grant
them wage increases on September 9, 1978. for engaging in
protected concerted activity. Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
3. Respondent's unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
of the Act. I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the
policies of the Act. Accordingly, it having been found that
Respondent, in violation of Section 8(a)(l) of the Act, un-
lawfully terminated the employment of Speaks and Oxford
and thereafter refused to reinstate them until November 20.
1978, I shall recommend that Respondent be ordered to
make them whole for any loss of pay resulting from the
discrimination against them by payment to each of a sum of
money equal to the amount they normally would have
earned as wages from the date of their termination to the
date of their reinstatement to their same jobs on November
20 and, in addition, for the period thereafter, until the time
that their wage increases, which they would have received
on September 9, 1978, are paid to them. Backpay shall be
computed on a quarterly basis in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950). and Flor-
ida Steel Corporation, 231 NLRB 651 (1977)."
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this proceeding, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
" See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
ORDER I2
Respondent, Leewittes Furniture rInterprises. Inc.. la!-
lorsville. North Carolina. its officers. agents, successors, and
assigns, shall:
i. C'ease and desist from:
(a) Discharging or otherwise discriminating agailisl anN
of its employees for engaging in protected concerted ac-
tivity for the purpose of obtaining a pay raise or for other
mutual aid and protection.
(b) Failing and refusing to grant wage increases to Its
employees because they engaged in protected concerted ac-
tivities.
(c) In any other manner interfering with, restraining. or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act, as amended.
2. Take the fbllowing affirmative action designed to et-
fectuate the policies of the Act:
(a) Make whole, without prejudice to their seniorit or
other rights and privileges. Mary Sue Speaks and Ruby Lee
Oxford for any loss of earnings they may have suffered as a
result of their being discharged on Jul) 12. 1977, and their
not receiving wage increases on September 9. 1978. in the
manner set forth in the section of the Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, Ior examination and copying. all pa-
roll records, social security payment records. timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its factories and other places of business in
Taylorsville. North Carolina. copies of attached notice
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region II11, after being
duly signed by Respondent's representative, shall be posted
by it 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 I I. in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
12 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 I02.48
of the Rules and Regulations, be adopted by the Board and become ts
findings, conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes.
l' In the event that this Order is enforced b a Judgment o a t nied
States Court of Appeals, the words in the notice reading "Posted b\ 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."
817