Shakespeare's, Inc.Download PDFNational Labor Relations Board - Administrative Judge OpinionsAug 29, 200518-CA-017457 (N.L.R.B. Aug. 29, 2005) Copy Citation JD(ATL)–36–05 Cedar Rapids, IA 5 10 15 20 25 30 35 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES ATLANTA BRANCH OFFICE SHAKESPEARE’S, INCORPORATED and CASE 18–CA–17457 GEORGE HENSON, an Individual SHAKESPEARE’S INCORPORATED and CASE 18–CA–17458 JERRY LEE WEHDE, JR., an Individual Florence Brammer, Esq. for the Government.1 Alisa Shakespeare, President, for the Company.2 BENCH DECISION Statement of the Case WILLIAM N. CATES, Administrative Law Judge. This is a wrongful discharge case.3 The parties presented evidence and gave closing arguments on August 4, 2005 and on August 5, 2005, I issued a Bench Decision pursuant to Section 102.35(a)(10) of the National Labor Relations Board’s (herein Board) Rules and Regulations setting forth findings of fact and conclusions of law. For the reasons stated by me on the record at the close of trial, specifically including credibility determinations,4 I found Shakespeare’s, Incorporated, (herein Company) violated 1 I shall refer to Counsel for the General Counsel as Government Counsel and the position she advocates as the Government’s position. 2 I shall refer to the Respondent as the Company. 3 George Henson (Henson) and Jerry Lee Wehde, Jr. (Wehde) filed their charges on November 1, 2004. The Regional Director for Region 18 of the National Labor Relations Board (Board), on behalf of the General Counsel of the Board, issued an Order Consolidating Cases and Consolidated Complaint and Notice of Hearing on January 21, 2005. This case was tried in Cedar Rapids, Iowa on August 4, 2005. 4 Credibility resolutions have been made upon the entire record and all exhibits in the proceeding. Witness demeanor and inherent probability of the testimony have been utilized to assess credibility. Testimony contrary to JD(ATL)–36–05 2 5 10 15 20 25 30 35 40 Section 8(a) (1) of the National Labor Relations Act, as amended, (herein Act) by on or about October 26, 2004, discharging its employees Henson and Wehde because they concertedly spoke with each other and fellow employees regarding pay issues, and also complained to Company President Alisa Shakespeare (Company President Shakespeare) regarding pay issues. I concluded their actions were concerted, known to the Company, protected by the Act and was the motivating factor for their discharge. Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941, (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), and Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481, (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). I concluded the Company failed to demonstrate that the same discharge action would have taken place even absent any concerted protected activity on Henson’s and Wehde’s part. Specifically, I concluded there was no credible evidence the Company discharged Henson and Wehde for insubordination. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899, (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I certify the accuracy of the portion of the transcript, as corrected,5 pages 237 to 261 containing my Bench Decision and I attach a copy of that portion of the transcript, as corrected, as Appendix A. Conclusions of Law Based on the record, I find the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that it violated the Act in the particulars and for the reasons stated at trial and summarized above and that its violations have affected and, unless permanently enjoined, will continue to affect commerce within the meaning of Section 2(2) and (6) of the Act. Remedy Having found the Company has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Company having discriminatorily discharged its employees Henson and Wehde, I recommend they, within 14 days from the date of the Board’s Order, be offered full reinstatement to their former jobs, or if their jobs no longer exist to substantially equivalent positions, without prejudice to their seniority, or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings or other benefits suffered as a result of the discrimination against them with interest. Back pay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). I recommend the Company be required to expunge from its records any and all references to its unlawful discharge of Henson and Wehde and notify them in writing this has been done and their unlawful discharge will not be used against them in any manner. Sterling Sugars, Inc., 261 NLRB 472 (1982). I my findings has been discredited on some occasions because it was in conflict with credited testimony or documents or because it was inherently incredible and unworthy or belief. 5 I have corrected the transcript pages containing my Bench Decision and the corrections are as reflected in attachment Appendix C. JD(ATL)–36–05 3 5 10 15 20 25 30 35 40 recommend the Company be ordered, within 14 days after service by the Region, to post an appropriate Notice to Employees, a copy of which is attached hereto as “Appendix B.” On these findings of fact and conclusions of law and on the entire record, I issue the following:6 ORDER The Company, Shakespeare’s Incorporated, its officers, agents, successors and assigns shall: 1. Cease and desist from: (a) Discharging employees because they concertedly raise pay issues with the Company and in order to discourage employees from engaging in these and/or other concerted protected activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Within 14 days of the date of the Board’s Order offer George Henson and Jerry Lee Wehde reinstatement to their former jobs or if their former jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or other rights or privileges enjoyed, and, make them whole for any lost wages and benefits they suffered as a result of their discharge. (b) Within 14 days of the date of the Board’s Order remove from George Henson’s and Jerry Lee Wehde’s files any reference to their unlawful discharge and within 3 days thereafter notify them in writing this has been done and that their discharge will not be used against them in any manner. (c) Preserve, and within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents all payroll records, Social Security payment records, time cards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of any back pay due under the terms of this Order. (d) Within 14 days after service by the Regional Director of Region 18 of the National Labor Relations Board, post at its Cedar Rapids, Iowa, facility copies of the attached Notice to Employees marked “Appendix B.”7 Copies of the Notice, on forms provided by the 6 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 7 If this order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading, “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read: POSTED JD(ATL)–36–05 4 5 10 15 Regional Director for Region 18 after being signed by the Company’s authorized representative shall be posted by the Company and maintained for 60 consecutive days in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced or covered by any other material. In the event that during the pendency of these proceedings the Company has gone out of business or closed the facility involved in these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the Notice to Employees, to all employees employed by the Company on or at any time since October 26, 2004. (e) Within 21 days after service by the Region, file with the Regional Director for Region 18 of the National Labor Relations Board sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Company has taken to comply. Dated, Washington, D.C. William N. Cates 20 25 30 35 40 Associate Chief Judge PURSUANT TO A JUDGEMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.” JD(ATL)–36–05 APPENDIX A 237 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is my decision in Shakespeare's Incorporated, herein company, Cases 18-CA-17457 and 18-CA-17458. The Government JD(ATL)–36–05 APPENDIX A 238 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alleges the company by its president, Alisa Shakespeare, herein, President Shakespeare, discharged its employees George Henson, herein Henson, and Jerry Lee Wehde, Jr., herein Wehde, on or about October 26, 2004 because they concertedly spoke with each other about pay raises and raised those pay issues with President Shakespeare. It is alleged President Shakespeare discharged the employees in question to discourage the employees from engaging in these or other protected concerted activities. The Government alleges the company's actions violated Section 8(a)(1) of the National Labor Relations Act as Amended, herein Act. The company is an Iowa Corporation with an office and place of business located in Cedar Rapids, Iowa, where it is engaged in the business of processing and packing candy products. During the calendar year ending December 31st, 2004, a representative period, the company derived gross revenues in excess of $500,000.00 and purchased and received at its Cedar Rapids, Iowa facility goods and supplies valued in excess of $50,000.00 from suppliers located outside the State of Iowa. The company stipulates the evidence establishes and I find it is an employer engaged in commerce within the meaning of Section 2(2)(6) and (7) of the Act. It is admitted that company president Shakespeare and office manager/factory manager Kathryn George are supervisors JD(ATL)–36–05 APPENDIX A 239 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and agents of the company within the meaning of Section 2(11) and 2(13) of the Act. The company denies it violated the Act in any manner alleged in the complaint. This case as in most cases requires credibility resolutions. Let me state at the very beginning that in arriving at my credibility resolutions I carefully observed the witnesses as they testified and I have utilized such in arriving at the facts herein. I have also considered each witness' testimony in relation to other witness' testimony and in light of the exhibits presented herein. If there is any evidence that might seem to contradict the credited facts I have set forth I have not ignored such evidence but rather have discredited it or rejected it as not reliable or trustworthy. I have considered the entire record in arriving at the facts herein. Company president Shakespeare commenced the candy company herein starting with just two candy processing vats or machines and developed the company to its annual current sales of approximately $4 million per year. The company supplies candy, pretzels and related items to such nationally known companies as T. J. Maxx, Wal-Mart and Target. The company's success appears directly related and attributed to the leadership of President Shakespeare. While perhaps not having a formally structured work schedule, it appears at least in the fourth quarter of each year that the company schedules work seven days per week. For a JD(ATL)–36–05 APPENDIX A 240 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 period of time in 2004 portions of the work force that the company relied on were provided by a temporary service type company. The temporary help company, namely Cambridge, supplied workers for a while but the arrangement did not prove satisfactory. According to president Shakespeare, she and Brad Smith, an official of Cambridge, had a falling out and Smith pulled all Cambridge's temporary employees from the company herein. It was at that time the company hired some of the temporary employees as its own employees. This change from temporary help to permanent employees took place in approximately early October, 2004. The pertinent time period involved in this particular case runs from approximately August 1, 2004 until October 26, 2004, a relatively short period of time. Henson commenced work as a temporary employee at the company herein; that is, he was employed at the company, Cambridge, which provided at that time temporary employees to the company. Henson started work on approximately August 4, 2004. He did piece rate work such as placing ten eight inch by one inch pretzels in tubs and sealing the tubs for shipment to Target Department Stores and other customers. It was the packer's job to ensure that the pretzels were not broken or damaged and that the proper number of products were placed in each tub. The filled tubs were then transported to the shipping rooms JD(ATL)–36–05 APPENDIX A 241 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for shipping to the customer. Henson and the others were paid on a piece rate system. It is acknowledged by the company and others that Henson was an excellent employee who learned the job quickly and performed it well. Henson testified he was paid extra by company president Shakespeare for working weekends after he had already worked 40 hours as a temporary employee of Cambridge. At some point the company went to an hourly wage structure for a brief period of time and then on or about October 15, 2004 went back to the piece rate system of payment. On or about October 6, 2004, Cambridge pulled all of its employees from the company herein. According to Henson, President Shakespeare needed a second shift starting in approximately mid September and asked him to be the lead person on that shift which he agreed to do. Henson described his team leader duties on the second shift as that he would set up the work stations, clean the area and get the product ready to be put into the tubs or boxes for shipment. Each on the second shift worked in the same manner of packing and preparing the product for shipment. Henson testified he did not discipline employees, that he did not assign which employees would perform what packing of products, Henson said he had an incident with a temporary agency supplied employee and told the employee to get back to work or he would write him up. However, factory manager George told Henson that he had no JD(ATL)–36–05 APPENDIX A 242 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 authority to write anyone up. Henson testified that the company had a standard operating practice that if a temporary supplied employee could not perform the job after four hours the temporary employee was to be sent home. Henson testified in his duties as team leader on the second shift he had no authority to lay off or recall employees, nor did he have any authority to transfer employees. Henson said he had no authority to promote employees or give them a wage increase. Henson testified he did not know of any evaluations at the company for employees and that he was never provided a job description. Henson denied hiring any employees for the company but acknowledged that he told president Shakespeare about his first cousin, Wehde. Henson testified he told Wehde to show up at the company and he introduced Wehde to company president Shakespeare. Wehde was hired that day in early September, 2004 as a first shift packer. Henson testified he noticed problems or concerns with his pay being incorrect in September, 2004. Henson testified he spoke with company president Shakespeare on or about September 24, 2004 regarding his pay concerns and she told him she did not have time to look into it then but would in the future. Henson testified he thanked Shakespeare and returned to work. According to Henson, all of the employees were having pay problems and they talked about it during break times. Henson JD(ATL)–36–05 APPENDIX A 243 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spoke with company president Shakespeare in early October about the payroll issues and she told him at that time she did not have time to deal with it, that she was dealing with other employees. Henson testified he again let the matter go at that time. Henson testified he spoke with Cambridge official Brad Smith about the pay problems at the company herein. According to Henson, Smith called company president Shakespeare on a speaker telephone and Shakespeare said she would handle the payroll problems. Henson testified his paycheck of October 10, 2004 was grossly underpaid. He testified his check was for approximately $260.00 and he anticipated and was expecting a payroll check of approximately $1,700.00. Henson met with company president Shakespeare. He said the matter was not fully corrected but that company president Shakespeare wrote him a check in excess of $1,100.00. Henson testified he had problems with pay for October 5 and 6, 2004 from Cambridge and spoke with Cambridge official Smith about it. Smith told Henson company president Shakespeare had not provided Cambridge with payroll records. Henson testified he and Wehde went to the local Teamsters Union hall on or about October 19, 2004 to see if the union could assist them. The union business agent asked them to get union cards signed by the employees. Henson testified the entire second shift met with the union in late October before he and Wehde were discharged on JD(ATL)–36–05 APPENDIX A 244 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 26, 2004. Henson testified he reported for work as scheduled on October 26, 2004. Henson testified that when he first began the work day he, Wehde and others were doing piecework individually; then they commenced working as a team. Henson testified that approximately 8:15 p.m. that evening, Wehde went to President Shakespeare's office and spoke with her about the pay concerns he had. According to Henson, Wehde later told him that evening that company president Shakespeare had told Wehde that he had a low priority with respect to his pay problems, that perhaps after she got her master's degree and 10,000 tubs of product were filled then maybe his pay issue would have a priority. After Wehde reported this to Henson, Henson suggested that Wehde go back and speak further with company president Shakespeare. However, it was discovered that company president Shakespeare had already left the plant. Henson testified he called company president Shakespeare on her cell phone and told her that Wehde's priority was getting his pay concerns taken care of. According to Henson, company president Shakespeare told him it was none of his business and that Wehde should go home for the night and then instructed Henson to tell Wehde he was fired. Henson indicated he would not. The telephone conversation ended. Henson testified that a short time later factory manager JD(ATL)–36–05 APPENDIX A 245 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 George came and asked that he and Wehde proceed with her to the office. According to Henson, factory manager George was speaking with company president Shakespeare on the phone. According to Henson company president Shakespeare wanted he and Wehde to either sign that they had voluntarily quit their job or get off the property. Henson testified that both he and Wehde could hear what company president Shakespeare was saying because she was speaking very loudly into the cell phone and that it was coming across so that both he and Wehde could hear what company president Shakespeare was saying through factory manager George's cell phone. Wehde told company president Shakespeare he just wanted to resolve the pay issue and according to Wehde he was told to “get the fuck off her property”. They did not sign the notes that they had voluntarily quit their job. Henson testified he had no intention of quitting or resigning his job on October 26, 2004, neither did Wehde. According to Henson, no option to go back to work was offered. Henson testified he telephoned factory manager George on October 27 to see if he was terminated or if he was to report to work. According to Henson, factory manager George did not know and there was no reference made in that exchange to his having voluntarily quit or to his being insubordinate. Henson testified that employees at the company worked most but not all Saturdays. Henson testified that on Saturday October the 23rd, 2004 he was not aware of whether he needed to JD(ATL)–36–05 APPENDIX A 246 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work or not so he called in to make sure because he had been drinking the night before and was not feeling too good. Henson testified that around 3 p.m. on Saturday October the 23rd, 2004 factory manager George telephoned him that he needed to come to work. Henson testified he tried to call Wehde so he could get a ride to work but that he could not contact Wehde. Henson testified he could not drive himself because his driver's license had been suspended. On Sunday October 24, 2004 Henson telephoned company president Shakespeare's mother, Mary Bisinger, who is a supervisor at the company and she told him he did not need to come to work because everyone had that day off. On Monday October 25, 2004, Henson and Wehde reported for work and first worked on a shipment going to the T. J. Maxx Company. Henson complained to factory manager George that it was going slow and wanted to switch from packing for T. J. Maxx to some other customer. Factory manager George told Henson she did not want to hear about it. Henson then telephoned company president Shakespeare and she allowed him to switch to packing for a different customer, namely Target Department Stores. Henson testified that company president Shakespeare jokingly asked him on October 25, 2004 regarding his absence on October 23, 2004 based on his drinking or "bottle flu" inquiring what was she going to have to do with him. JD(ATL)–36–05 APPENDIX A 247 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Wehde testified he commenced working for the company on the 1st of September, 2004. He said his first cousin, Henson, and Henson's sister, LaVeda, told him about the company saying it was a good place to work. Wehde testified he was not hired through the temporary service but rather was hired directly by the company. He said he worked a very short period on the first shift but that when Henson was promoted to night shift he also went to that shift. Wehde testified he had pay problems with his check not being for the amount it was to be, deductions were not taken and child support was not taken from his pay. Wehde testified he spoke with company president Shakespeare on three separate occasions about his pay concerns. Wehde testified he was not good at remembering specific dates but said he first complained the Monday following the receipt of the first paycheck he received from the company herein. Wehde testified company president Shakespeare told him she was busy at the time. Wehde again spoke with company president Shakespeare a week later to ask if she had an opportunity to review his pay concerns. According to Wehde, Shakespeare told him she did not have time to do so. Wehde testified he spoke with company president Shakespeare a third time about his pay concerns on October the 26th, 2004. Wehde testified he spoke with Shakespeare in her office at around 8 p.m. Shakespeare told Wehde she had not gotten to his pay concerns and that he was not on her priority list. JD(ATL)–36–05 APPENDIX A 248 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 According to Wehde, Shakespeare told him that after 40,000 tub orders were filled and she obtained her master's degree that his problems might then be at the bottom of her concerns. Wehde went back to his work area after the discussion on October 26, 2004, and after speaking with Henson about their pay concerns he want back to Shakespeare's office to further discuss the matter but she had left for the day. According to Wehde, Henson telephoned company president Shakespeare. Henson said Shakespeare told him Wehde was fired. Wehde testified he told factory manager George he supposed he should get his stuff and leave, to which George nodded her agreement. Factory manager George was on the telephone at the time. George asked Wehde and Henson to sign letters that they had voluntarily quit their jobs. Wehde testified he laughed and said he was not going to sign a letter that he had resigned when he had in fact been fired. Wehde testified he could hear company president Shakespeare screaming for him to get off of her property. Wehde testified he told company president Shakespeare all he wanted to do was resolve the payroll issues, that he was not quitting. Shakespeare told Wehde, according to Wehde, to “get the fuck off the property”. Wehde said he did not want to lose his job. Wehde specifically testified he did not say he would walk off the job if his payroll issues were not resolved. Wehde testified that he and Henson approached Local JD(ATL)–36–05 APPENDIX A 249 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Teamsters Union representatives about the unresolved payroll concerns and that all of the second shift employees met with a Teamster representative about their payroll concerns. Wehde specifically testified that he was not scheduled to work Saturday October 23, 2004 nor Sunday October 24, 2004. He said he received a message on his cell phone that weekend not about his not coming in to work but if he had seen Henson. The message was from factory manager George. Wehde specifically testified he had no scheduled meeting with company president Shakespeare the weekend of Saturday October 23 or Sunday October 24, 2004. Factory manager George testified she put Henson in a supervisory position on second shift. Henson was hired as an employee based on Henson's sister's recommendation. Henson's sister worked as a rank and file employee at the company. Factory manager George testified payroll issues at the company were brought to company president Shakespeare's attention. Factory manager George explained that when the payroll problems arose that company president Shakespeare would take care of them as soon as she could, if not that pay period the next pay period. According to factory manager George the payroll issues were caused in part by the fact that Cambridge, the temporary service, had pulled their temporary employees from the company herein. Factory manager George testified that company JD(ATL)–36–05 APPENDIX A 250 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 president Shakespeare on October 22nd, 2004, issued additional paychecks on that day. Factory manager George testified it was difficult to get pay issues correct if piece rate sheets were not filled out by the employees correctly. Factory manager George testified that Henson came to her with pay concerns but she said she was not involved. Factory manager George testified Henson and company president Shakespeare worked out Henson's pay problems on October 10, 2004, and that Henson was paid in full and that everything was fine. Company president Shakespeare testified that Wehde had problems with his pay on two occasions. On one occasion she did not have access to his records, that the payroll clerk had the records locked away, and that she spoke with him about having a meeting regarding his pay issues. Company president Shakespeare testified that the paychecks issued by the company on or about October 22, 2004 were for the pay period ending October 8, 2004. She explained there were lots of problems with that pay period because the temporary service had withdrawn its employees and that payroll was in a mess. Company president Shakespeare testified she spent from 2 p.m. until 7 p.m. on October 22, 2004 just writing and redoing payroll checks. Company president Shakespeare testified Wehde spoke with her on Tuesday October the 26th about his pay. She testified she told him she didn't owe him, that he was at the JD(ATL)–36–05 APPENDIX A 251 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bottom of her list, that she had two scheduled meetings with him to discuss his pay and that he did not attend either meeting. The meetings she made reference to were for the weekend of October 23 and 24. Company president Shakespeare testified she told Wehde on October the 26th, 2004 that she was sick and that she would deal with him the following Friday. Company president Shakespeare testified Henson telephoned her and told her that at the top of Wehde's priority list was getting paid and that if he didn't he was going to quit and that if Wehde quit he, Henson, was going to quit also. Company president Shakespeare testified she telephoned factory manager George and told her that Henson and Wehde were going to quit and to get them to sign something stating they had voluntarily quit their job. Shakespeare instructed factory manager George that Henson and Wehde could go back to work or sign that they were quitting. Factory manager George reported to company president Shakespeare that the two were not going back to work and not signing anything. Company president Shakespeare testified since the two were neither going to work nor signing something that they were quitting she considered that insubordination and instructed that they leave the premises. Company president Shakespeare specifically testified Henson and Wehde were not discharged for discussing wages. She said their infraction was insubordination. JD(ATL)–36–05 APPENDIX A 252 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 To the extent that the company contends that Henson was a supervisor within the meaning of the Act and thus not covered by the Act it is helpful to address that issue first. The burden of proving that an individual is a statutory supervisor rests with the party asserting it. See NLRB v Kentucky River 5 Community Care, 121 S. Ct. 1861 (2001). Section 2(11) of the Act defines supervisor as "any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or responsibly to direct them or to adjust their grievances or effectively to recommend such action if in connection with the foregoing exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment". 6 7 8 9 10 11 12 13 14 In NLRB v Kentucky River Community Care at 1867 the Court stated Section 2(11) of the Act "sets forth a three part test for determining supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in 1 of 15 16 17 18 19 20 21 the 12 listed supervisory functions. (2) their exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment, and (3) their authority is held in the interest of the employer. NLRB v 22 Health Care & Retirement Corp. of America, 511 U.S. 571, 23 24 25 574, 114 S. Ct., 1778 (1994)." I find that the record evidence does not establish that JD(ATL)–36–05 APPENDIX A 253 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Henson is a supervisor within the meaning of Section 2(11) of the Act. The company appears to contend Henson is a statutory supervisor because he responsibly assigned employees work and recommended employees for hire. The evidence with respect to assigning work reveals that Henson's decision making was at best routine and did not require any use of independent judgment on his part. He merely cleaned up around the machines and each of the employees, himself included, packaged the product for shipment to the customers. With respect to the work it appears it was very repetitive in nature and required little, if any, supervision. As to Henson's hiring or recommending employees be hired the only evidence that he had any participation in hiring was that he introduced his first cousin Wehde to company president Shakespeare and that Shakespeare did the hiring. It appears at this company that various individuals may recommend and introduce potential employees to company president Shakespeare. For example Henson's sister introduced Henson to company president Shakespeare and Henson's sister is an acknowledged rank and file employee of the company. Henson, the evidence shows, signed off on the number of tubs employees on the second shift filled. However, such did not involve the requisite independent judgment required to establish someone as a statutory supervisor. Merely counting the number of tubs that an employee filled on a particular JD(ATL)–36–05 APPENDIX A 254 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 shift is not the caliber of direction that would establish one to be a supervisor within the meaning of the Act. In conclusion on this issue, I find the company has failed to establish that Henson was a supervisor within the meaning of the Act. In order to find whether one has been discharged for concerted protected activity it must be established first that the employee or employees engaged in concerted activity and then if there was concerted activity whether it was activity protected by the Act. Concerted activity has its basis in Section 7 of the Act. The Board in Meyers Industries (Meyers 11 I), 268 NLRB 493 (1984) remanded sub. nom. Prill v NLRB 755 F.2d 941 (D.C. Cir, 1985), noted that the concept of concerted action has its basis in Section 7 of the Act. Section 7 of the Act in pertinent part states "Employees shall have the right to self- organization to form, join or assist labor organization to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection". 12 13 14 15 16 17 18 19 20 The Board pointed out in Meyers I that although the legislative history of Section 7 of the Act does not specifically define concerted activity it does reveal that Congress considered the concept in terms of individuals united in pursuit of a common goal. The statute requires that the 21 22 23 24 25 JD(ATL)–36–05 APPENDIX A 255 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 activities under consideration be concerted before they can be protected. As the Board observed in Meyers I "Indeed, Section 7 does not use the term protected concerted activities but only concerted activity.” It goes without saying the Act does not protect all concerted activity. 2 3 4 5 6 With the above as well as other considerations in mind the Board in Meyers I set forth the following definition of concerted activity. "In general to find an employee's activity to be concerted we shall require that it be engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself. Once the activity is found to be concerted an 8(a)(1) violation will be found if in addition the employer knew of the concerned nature of the employee's activity, the concerted activity was protected by the Act and the adverse employment action at issue, (e.g. discharge), was 7 8 9 10 11 12 13 14 15 16 motivated by the employee's protected concerted activity". In Meyers Industries (Meyers II), 281 NLRB 882 (1986) enfd. sub. nom. 17 Prill v NLRB 385 F2d 1481 (D.C. Cir. 1987), the Board made it clear that under the proper circumstances a single employee could engage in concerted activity within the meaning of Section 7 of the Act. The question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence. See e.g. 18 19 20 21 22 Ewing, 23 v NLRB 861 F2d 353 (2d Cir. 1988). 24 25 The Board has found an individual employee's activities to JD(ATL)–36–05 APPENDIX A 256 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 be concerted when they grew out of group activity. Every 1 Woman's Place 282 NLRB 413 (1986). An employee's activity will be concerted when he or she acts formally or informally on behalf of the group. 2 3 Oakes Machine Corp. 288 NLRB 456 (1988). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I am fully persuaded that Henson and Wehde discussed among themselves their pay concerns and discussed their pay concerns and their co-workers' pay concerns with each other including every employee on the second shift. Not only did they discuss their wage concerns among themselves, they also sought assistance from the Local Teamsters Union with respect to their pay concerns. Henson and Wehde separately and together spoke on various occasions to company president Shakespeare and factory manager George about their pay concerns. Section 7 of the Act guarantees employees the right to engage in concerted activity and it is essential for a full exercise of those rights that employees be able to discuss wages and pay concerns. Did the company know of the concerted nature of the employees' activities? The answer is yes. The company acknowledges there were payroll problems during the period from August 1 through and including October 26, 2004. Company president Shakespeare knew and discussed those payroll problems with Henson, Wehde and others. The "and others" is included because Shakespeare herself testified that she spent several hours on October the 22nd, 2004 listening to JD(ATL)–36–05 APPENDIX A 257 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees' payroll problems and adjusting them by handwriting checks on that day. I think it is clear already from the case law cited that discussing wages and addressing pay concerns is concerted activity that is protected by the Act. Was the adverse action, that is the discharge of Henson and Wehde, motivated by their concerted protected activity? Here is where credibility must be addressed. The Government contends that Henson and Wehde, based on their testimony, were discharged because they discussed among themselves and with management their pay concerns. The company, through company president Shakespeare, contends that it was not the pay concerns that brought about the demise of Henson and Wehde but rather that they engaged in insubordination and it was their insubordination that brought about their termination. I credit Henson’s and Wehde's testimony with respect to their conversations with factory manager George and company president Shakespeare regarding their pay issues. Henson and Wehde impressed me as credible witnesses and there is no dispute that there was payroll problems. It is also without dispute that Henson for example had specific payroll problems that company president Shakespeare recognized and attempted on occasion to correct. I am unwilling to credit factory manager George's testimony that might be in contradiction with this testimony because factory manager George appeared uncertain with respect JD(ATL)–36–05 APPENDIX A 258 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to her testimony and needed to have her testimony summarized by company president Shakespeare as she questioned her and then have factory manager George agree with it. I am unwilling to credit company president Shakespeare's testimony on the circumstances regarding her discussing pay concerns with Henson and Wehde because I am persuaded company president Shakespeare, as is acknowledged, brought this company from nothing to the vast organization it is today and she impressed me as someone who does not wish to have anyone question her authority or management skills. Specifically I credit Henson's testimony that company president Shakespeare told him when he raised wage pay concerns with her that Wehde could go home and then told Henson to tell Wehde he was fired. I credit the testimony that Henson and Wehde talked with company president Shakespeare directly and through factory manager George's cell telephone on October the 26th regarding their pay concerns. I credit Wehde's testimony that he told company president Shakespeare that he just wanted to resolve the pay issues and that she responded for them to “get the fuck off the property”. I credit Henson’s and Wehde's testimony that they were not given an option of returning to work but were rather ordered off the property. The connection between Henson’s and Wehde's concerted protected activity and their discharge was clearly established by the Government through the testimony of Henson and Wehde. JD(ATL)–36–05 APPENDIX A 259 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 The evidence as credited indicates the two were discharged specifically for discussing pay concerns and issues with company president Shakespeare. Having found that, did the company demonstrate that it would have taken the same action it did even in the absence of any concerted protected activity on their part? In Wright Line 251 NLRB 1083 (1980), enfd. 662 F2d 899 (1st Cir. 1981), cert 6 7 denied 455 U.S. 989 (1982), approved in NLRB v Transportation 8 Management Corp. 462 U.S. 393 (1983), the Board set forth its causation test for cases alleging violations of the Act that turn, as does the case herein, on employer motivation. 9 10 11 12 13 14 15 16 17 First, the Government must persuade the Board the employees' concerted protected activity was a substantial or motivating factor in the challenged employer conduct or decision. Once this is established the burden then shifts to the employer to prove its affirmative defense that it would have taken the same action it did even if its employees had not engaged in protected activity. See Manno Electric, Inc. 321 NLRB 278 fn 12 (1996). 18 19 20 21 22 23 24 25 I am fully persuaded that the company's asserted reason for discharging Henson and Wehde is an after the fact brought forth justification. Simply stated I am persuaded that company president Shakespeare's assertion that it was the employees' insubordination that brought about their discharge is simply false. The credible evidence fails to establish that they were JD(ATL)–36–05 APPENDIX A 260 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insubordinate. They were not given an option of returning to work. They were ordered to get off the property when they sought to discuss their pay concerns. I find the discharge of Henson and Wehde violates Section 8(a)(1) of the Act. I shall recommend that they be offered reinstatement, be made whole to include any back pay owed to Henson and Wehde. I shall direct that the company expunge from its records any notation of their wrongful discharge and notify Henson and Wehde in writing that their employment records have been expunged and that their unlawful discharge will not be used against them in any way. I also will order that the company post an appropriate notice regarding the unlawful conduct it engaged in so that its employees may know that they have rights protected by the National Labor Relations Act. In approximately ten days, the court reporting service will provide me with a copy of the transcript of this proceeding. I will take those pages of the transcript that constitute my decision, make any corrections that are necessary thereon and make any additional comments I deem appropriate and attach a proper notice, and I will serve that certification of my bench decision on the parties. Any review sought of my decision should be taken following the Board's specifically outlined rules and regulations. Mr. Court Reporter, I thank you for being here and taking JD(ATL)–36–05 APPENDIX A 261 WALLS & WALLS 12124 Hampshire Avenue North Champlin, Minnesota 55316 (763) 422-8938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 down the proceeding. It has been a pleasure being in Cedar Rapids, Iowa and this trial is closed. (Proceeding concluded at 9:07 a.m.) JD(ATL)–36–05 APPENDIX B NOTICE TO EMPLOYEES Posted by the Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge employees because they concertedly raise pay issues with us. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days of the Board’s Order, offer George Henson and Jerry Lee Wehde full reinstatement to their former jobs or if their former jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or other rights or privileges previously enjoyed; and, WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings, plus interest. WE WILL, within 14 days of the Board’s Order, remove form our files any reference to the discharge of George Henson and Jerry Lee Wehde, and WE WILL, within 3 days there after, notify them in writing that this has been done and that their discharge will not be used against them in any manner. SHAKESPEARE’S INCORPORATED (Employer) Dated: __________________________ By: _____________________________________________ (Representative) (Title) The National Labor Relations Board is an independent Federal Agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov 330 South Second Avenue, Towle Building, Suite 790, Minneapolis, MN 55401-2221 (612) 348-1757, Hours 8: a.m. to 4:30 p.m. 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 DIRECTED TO THE ABOVE REGION’S COMPLIANCE OFFICER, (612) 348-1770 JD(ATL)–36–05 APPENDIX C Page 1 PAGE(S) LINE(S) DELETE INSERT 237 1-22 Delete entire lines 237 25 17437 17457 241 22 “what” before “employees” which 241 22 to would 241 22 “,” . Henson said 241 25 him Henson 242 20 the 24th 24 245 25 October 23, he did not know if he was to 246 1 and so 246 10 B-I-S-I-N-G-E-R 247 18 had 248 3 his her 248 9 and “.” 248 9 told said 248 9 -- 248 9 “Shakespeare” after “him” 249 2 “the” after “with” a 249 6 about not 249 7 coming in to work-- 249 12 New paragraph before “Factory” 251 1 “him” after “with” 251 4 22 and 23 – correction, October 251 13 was were JD(ATL)–36–05 APPENDIX C Page 2 PAGE(S) LINE(S) DELETE INSERT 251 20 sign singing 252 18 one…..one (1)…..1 252 19 twelve……. two 12 …..(2) 252 21 three (3) 252 23 And Corporation & Corp. 253 3 assigns assigned 253 4 recommends recommended 253 25 had 254 4 “ ” ” “after activity.” 255 5 “ ” ” 255 15 that is discharge (e.g. discharge) 255 23 for example e.g. 255 23 E-W-I 255 24 N-G 256 1 grow grew 256 6 as well as discussing and discussed 256 10 out 256 14 “engaged in” after “to” 256 18 to that question 256 19 That 256 20 Involved herein covering From 257 8 “,” after “Wehde” and “testimony” 257 10 “,” after “company” 257 11 “,” after “Shakespear” JD(ATL)–36–05 APPENDIX C Page 3 PAGE(S) LINE(S) DELETE INSERT 257 15 Henson Henson’s 258 5 the discussion her discussing 258 6 that 258 7 “,” after “Shakespeare” and “acknowledged” 258 8 impresses impressed 258 21 Henson Henson’s 258 23 Henson Henson’s 259 7 enforced enfd. JD(ATL)–36–05 Copy with citationCopy as parenthetical citation