National Service Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1976

222 N.L.R.B. 42 (N.L.R.B. 1976)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duchess Furniture , Division of National Service In-
dustries, Inc. and Laurie Farber. Case 9-CA-8999
January 9, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 29, 1975, Administrative Law Judge
Lowell Goerlich issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief, and General
Counsel filed a reply 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 Supplemental Decision in light of the excep-
tions and briefs 2 and has decided to affirm the rul-
ings, findings, and conclusions of the Administrative
Law Judge and to adopt his recommended Order.
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 recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Duchess Furniture, Di-
vision of National Service Industries, Inc., Florence,
Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order.
1 See original Decision at 220 NLRB No. 6 (1975).
2 Respondent 's request for oral argument is hereby denied because the
record, the exceptions , and the briefs adequately present the issues and
positions of the parties
SUPPLEMENTAL DECISION
LOWELL GoERLICH, Administrative Law Judge: After a
recommendation that this cause be deferred to arbitration,
the Board remanded it "to the Administrative Law Judge
for his disposition on the merits."' In this regard the perti-
nent facts in the prior decision are incorporated herein and
have been considered.
Credited evidence establishes that on December 3, 1973,
Laurie Farber met with Plant Manager Gareth Turner dur-
ing which meeting the speed of the seat line was discussed
as well as the amount of production expected of the em-
220 NLRB No. 6 (1975).
ployees. Disagreement arose as to how much production
"could come out of each person." Turner remarked that he
"expected 500 seats out of every girl on the line or else he
would find someone who could." Farber called Turner's
attention to the fact that "they didn't have a way of count-
mg individual production for those girls on the line." Far-
ber observed, "'What are you going to do, fire three peo-
ple,' because people work in a team of three." Turner
responded, "We'll have to think up something about that."
After the meeting concluded and Farber had reached the
hall, Turner "rushed out in the hall" and said, "Little girl,
I've got a great idea. I've got a new job for you. All you
have to do is stand at the end of a line and count individual
production for the people on the line. You'll help me find
out who can put out the work and who can't .... I'll have
my foreman put you on it tomorrow morning." Farber an-
swered, "I don't like the idea of policing the line."
On the morrow, December 4, 1974, Farber's foreman,
Pete Sizemore, addressed her, "Here's the paper. I want
you to write down the production of each girl on this line."
Farber responded, "Pete, I'd like you to show me where in
the contract this is a production job." He asked, "Are you
refusing the job?" Farber answered, "No. I'm not sure if it
is a production job. I'd like to talk about it." Farber's fore-
man "disappeared" and returned with a suspension notice
in which it was related, "You have violated rule 7 2 of fac-
tory regulations by willful disobedience and are hereby
suspended for 3 days. Future violations of this rule will
cause your dismissal from employment at this factory."
Farber lodged a grievance for harassment. Lawrence
Williams, International representative for the Union, ad-
vised Farber "to go back on that job" and "see if in time
they could work it out."
Farber insisted that the grievance proceed and Employer
Representatives Turner, Woldroot, and Sizemore, and
Union Representatives Tatum, Mains, and Williams, and
Farber met on December 5. Turner denied harassment I by
relying on the management rights clause. During the meet-
ing Williams asked Farber whether she was "prepared to
go back on that job [the new job] right now if the Company
would offer it." Farber responded, "No. I don't feel the
question of harassment has been dealt with at all." Toward
the end of the meeting Farber said that she had one more
question. "You haven't answered the question of harass-
ment . . . . Has there ever been in this plant ever a Union
person who just did counting and nothing else." 4 Turner
replied, "Little girl ... you're too smart for me .... I'm
going to see my lawyer this Saturday and I'll ask him all
your questions and I'll have my answer for you Monday."
Thereafter the Respondent denied the grievance and dis-
charged Farber on December 9, 1974.
On the basis of this evidence the General Counsel claims
that "Farber was suspended by Sizemore not for refusal to
perform an assigned duty, but rather, because she ques-
2 Rule 7 provided for a warning or discharge at the Company's option for
"willful disobedience"
3 Farber thought the harassment was levied on her as a union steward and
that she was being transferred to a clerical job (counting only) outside the
unit in violation of the contract
4 According to Farber, Turner had mentioned "lots of people who had
counted production, which [she] knew"
222 NLRB No. 5
DUCHESS FURNITURE
tioned him as to whether or not the job was contained in
the collective bargaining agreement."
"The Board has consistently held that Section 7 of the
Act protects employee attempts . . . to implement the
terms of bargaining agreements irrespective of whether the
asserted contract claims are ultimately found meritorious
and regardless of whether the employees expressly refer to
applicable contracts in support of their actions or, indeed,
are even aware of the existence of such agreements. " John
Sexton & Co., A Division of Beatrice Food Co., 217 NLRB
No. 12 (1975).
In the foregoing case the Board held that it was a viola-
tion of Section 8(a)(1) of the Act for an employer to dis-
charge an employee for the refusal to drive without a li-
cense, where under the existing bargaining agreement he
"had an arguable right to refuse to drive with a suspended
license." Thus this case teaches that, if an employee has an
arguable right to refuse a work assignment under a collec-
tive-bargaining agreement, the employee may not be either
disciplined or discharged if he exercises such right. In the
instant case it is clear that Farber was discharged because
she raised the question as to whether she could be unilater-
ally assigned to the counting job under the terms of the
labor agreement. She was immediately disciplined out-of-
hand because she replied, "No. I'm not sure if it is a pro-
duction job. I'd like to talk about it," to her foreman's
question, "Are you refusing the job?"
Under the existing collective-bargaming agreement, Far-
ber had an arguable right to refuse the unilateral work as-
signment, which may have removed her from the unit cov-
ered by the collective-bargaining agreement;5 "thus her
assertion of that right constituted a grievance within the
framewotk of the contract that affected the rights of all
unit employees."
Based upon the John Sexton & Co. case, supra, it must be
found that Farber was wrongfully discharged in violation
of Section 8(a)(1) of the Act .6 In that Farber's discharge
cannot be disassociated from her unlawful suspension, was
discriminatory in nature, and ipso facto discouraged mem-
bership in a labor organization, her discharge also violated
Section 8(a)(3) of the Act.
5 The contract does not specifically cover the job to which Farber was
assigned nor is a specific wage rate provided for it. Thus it was arguably an
excluded job. Indeed it appears to have been a new job, wholly of a clerical
nature (the contractual unit covered only maintenance and production em-
ployees and janitors), set up by Turner to gratify his desire to monitor the
employees on the seat line. Thus Farber legitimately raised the question
whether a "Union person" had performed "just . . counting and nothing
else."
6 See also Dust-Tex Service, Inc, 214 NLRB No. 60 (1974), wherein the
Board held that employee discharges were unlawful because the employees
had "exercised their protected right to refuse to accept changes in their
conditions of employment to which their collective-bargaining representa-
tive had not acquiesced" It was held: "by requiring the three named em-
ployees to accept unilaterally imposed changes in wages, together with the
prospect of losing their employee status, as a condition of continued em-
ployment, the Respondent thereby constructively terminated their employ-
ment in violation of Sec. 8(a)(1) and (3) of the Act." Farber had the right to
exercise her protected right to refuse the employer 's unilateral assignment
which would have arguably removed her from the protection of the con-
tract. Lacking such protection for the employee, collective bargaining obvi-
ously could become a nullity
CONCLUSIONS OF LAW
43
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exer-
cised herein.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Laurie Farber on Decem-
ber 9, 1974, the Respondent engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. It having
been found that the Respondent unlawfully discharged
Laurie Farber and thereby violated Section 8(a)(3) and (1)
of the Act, it is recommended that the Respondent remedy
such unlawful conduct. It is recommended in accordance
with Board policy 7 that the Respondent offer Laurie Far-
ber immediate and full reinstatement to her former posi-
tion or, if such position no longer exists, to a substantially
equivalent position without prejudice to her seniority or
other rights and privileges and make her whole for any loss
of earnings she may have suffered as a result of the dis-
crimination against her by payment to her of a sum of
money equal to the amount she would have earned from
the date of her discriminatory discharge to the date of an
offer of reinstatement , less net earnings during said period,
to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. ' Woolworth Company, 90
NLRB 289 (1950), and, including interest at the rate of 6
percent per annum in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER'
Respondent, Duchess Furniture, Division of National
Service Industries, Inc., Florence, Kentucky, its officers,
agents, successors , and assigns, shall:
7 See The Rushton Company, 158 NLRB 1730, 1731 (1966)
8In 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
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in International Union of
Electrical , Radio and Machine Workers, AFL-CIO, C.L.C.
and its Local No. 781, or any other labor organization, by
unlawfully discriminatorily discharging any of its employ-
ees or discriminating in any other manner with respect to
their hire or tenure of employment or any term or condi-
tion of employment in violation of Section 8(a)(3) of the
Act.
(b) Threatening to discharge or discharging employees
for asserting or attempting to assert their rights under a
collective-bargaining agreement governing the terms or
conditions of employment.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Laurie Farber immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position , without preju-
dice to her seniority or other rights and privileges, and
make her whole for any loss of pay that she may have
suffered by reason of the Respondent 's discrimination
against her in accordance with the recommendations set
forth in the section of this Decision entitled "Recommend-
ed Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Florence , Kentucky, plant copies of the
attached notice marked "Appendix ." 9 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent's representa-
tive, shall be posted by it 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. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
9In 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were permitted to
introduce testimony and other evidence, it was decid-
ed that we violated the National Labor Relations
Act, as amended, by discharging Laurie Farber in
violation of Section 8(a)(1) and (3) of said Act.
WE WILL offer Laurie Farber her job or, if her
job no longer exists, a substantially equivalent
job.
WE WILL restore her seniority and pay her the
backpay she lost because we discharged her.
WE WILL NOT unlawfully discharge any of our
employees for the same reason we discharged
employee Laurie Farber, or discourage member-
ship in any labor organization by discriminating
against our employees in any other manner with
respect to their hire or tenure of employment in
violation of Section 8(a)(3) of the Act.
WE WILL NOT threaten to discharge our em-
ployees or discharge any of our employees for
asserting or attempting to assert their rights un-
der a collective-bargaining agreement governing
the terms or conditions of their employment.
DUCHESS FURNITURE, DIVISION OF
NATIONAL SERVICE INDUSTRIES, INC.