Starbrite Furniture Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1976

226 N.L.R.B. 507 (N.L.R.B. 1976)

STARBRITE FURNITURE CORP. 507
Starbrite Furniture Corp. and Local 140, Bedding,
Curtain & Drapery Workers, United Furniture
Workers of America, AFL-CIO. Case 2-CA-13621
October 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
I AND WALTHER
engaged in union and protected concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection.
"(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
On May 18, 1976 , Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding . Thereafter , the General Counsel and Re-
spondent filed exceptions and supporting briefs. The
General Counsel also submitted a brief in support of
the Administrative Law Judge 's Decision.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his, recommended Order, as modified below.
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, Starbrite Furniture
Corp., Stamford, Connecticut, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as modified below:
1. Delete paragraph 1(c) and substitute the follow-
ing:
"(c) Engaging in acts of surveillance of its employ-
ees' union meetings."
2. Add the following as paragraphs 1(d) and 1(e):
"(d) Discharging employees, or otherwise discrim-
inating against employees in regard to hire, tenure, or
other conditions of employment, because they have
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative 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 Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the' record and find no basis for reversing his findings
The Administrative Law Judge inadvertently omitted a specific cease-
and-desist order covering those violations of illegal surveillance and illegal
discharge which he found Respondent had committed We therefore modify
the cease-and' desist order accordingly and we substitute the attached notice
for that proposed by the Administrative Law Judge
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 had the opportu-
nity to present their evidence, it has been decided
that we violated the law and we have been ordered to
post this notice. We intend to carry out the order of
the Board and abide by the following:
WE WILL NOT discharge employees because
they have engaged in union and protected con-
certed activities for the purposes of collective
bargaining or other mutual aid or protection.
WE WILL NOT threaten our employees with lay-
offs or discharge because of their union support.
WE WILL NOT threaten our employees that
union membership will cause the closing of the
plant.
WE WILL NOT conduct surveillance or give the
impression of any surveillance of employees'
union activity.
WE WILL NOT in any other manner interfere
with employees' rights under Section 7 of the
National Labor Relations Act, including the
right to vote for, join, or assist labor organiza-
tions.
WE WILL offer Lesmes Caseres immediate and
full reinstatement to his former job or, if that job
is no longer available, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights, privileges, or working conditions.
WE WILL make Lesmes Caseres whole for any
loss of pay or other benefits suffered as a result
of the termination of his employment.
STARBRITE FURNITURE CORP.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge: This
case arises upon a complaint issued on May 28, 1975, as
226 NLRB No. 71
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended during the hearings, by the National Labor Rela-
tions Board alleging that Starbnte Furniture Corp. had vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, by (1) several acts and practices
which interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
and (2) by discriminatorily discharging an employee for his
union activity. In its answer, filed on August 13, 1975, Re-
spondent admitted all jurisdictional and certain other alle-
gations in the complaint, but it denied all charges that it
had committed any unfair labor practices.
The hearing on these charges was held in Bridgeport,
Connecticut, on November 24 and 25 and December 2,
1975. The General Counsel and Respondent were repre-
sented by counsel and afforded full opportunity to adduce
evidence, to call, to examine and cross-examine witnesses,
to make oral argument, and to file briefs.
Based on the entire record in this case, including briefs
of counsel and from my observation of the witnesses, I
make the following findings of fact and conclusions of law
with particular reference to the following issues: First,
whether Respondent violated Section 8(a)(1) of the Act by
threatening its employees with discharge'if they joined the
Union, by granting wage increases and additional vacation
days to dissuade them from joining the Union, and by
keeping under surveillance the meetings of the Union. Sec-
ond, whether Respondent violated the Act by discharging
an employee for his union assistance and support.
FINDINGS OF FACT
A. Summary of the Record Evidence
The Respondent, Starbrite Furniture Corporation (Star-
brite) is a Connecticut corporation with its principal place
of business located at 69 Jefferson Street, Stamford, Con-
necticut, and admittedly an employer within the meaning
of Section 2(6) and (7) of the National Labor Relations
Act. The Company is engaged in the manufacture of sum-
mer furniture and children's or juvenile furniture.
Starbrite's chief executive is Joseph Tandet. Additional
supervisors of Respondent are Frank Rega, general fore-
man; Mariano Parades, foreman; and William Crespo
Herrera, also a foreman. All are admittedly agents of Star-
brite, acting on its behalf, and supervisors thereof, within
the meaning of Section 2(11) of the Act.
The Union, Local 140, Bedding, Curtain & Drapery
Workers, United Furniture Workers of America, AFL-
CIO, is the Charging Party and a labor organization within
the meaning of Section 2(5) of the Act.
The record shows that the Union began an organiza-
tional campaign at Starbrite in January 1975 by involving
three employees, Felix Rodriguez, William Baiz, and
Lesmes Caseres. On or about January 20, 1975, Caseres
requested the assistance of his foreman, Mariano Parades,
in organizing the employees. Parades, however, warning
that the "boss" would sooner close the plant than permit
the Union, refused his cooperation. Nevertheless, William
Baiz and Lesmes Caseres received from the Union authori-
zation cards and began to distribute them to their fellow
employees on January 29, 1975. Several employees showed
these, cards to Foremen Parades and Herrera inquiring
whether or not they should sign those cards.; At least one
employee, William Baiz, similarly informed Frank Rega,
the general foreman at Starbnte. Felix Rodriguez testified
that Foreman Parades warned him that all those who
signed union cards would be fired. Rodriguez subsequently
inquired from Foreman Herrera whether he would join the
Union. Herrera also remarked that those employees who
signed the cards would be fired.
Nevertheless, on January 30, 1975, Caseres who had be-
come the more active of the union organizers among the
employees continued to distribute union cards during his
lunch hour. He handed out a total of approximately 23
cards. On the following day, January 31, 1975, Caseres re-
ported for work as usual at 8 a.m . However, Frank Rega,
the general foreman, refused to permit Caseres to punch in
for work and suggested that Caseres take leave for a few
days. When asked why, Rega replied that Caseres was
breaking too many chairs during his work. Rega further
remarked that he had tried to help Caseres and given him
several raises, but that Caseres had turned against him. At
that point Caseres attempted to remain inside the factory
to call the Union and to wait for his carpool ride back to
New York City. Rega, however, ordered him off the prem-
ises . Caseres left the plant, waited for his ride, and distrib-
uted additional union cards during the remainder of the
day outside the plant.
Following this episode on'February 3, 1975, Foreman
Parades spoke to several employees, including Ana Caban,
Ramon Ortiz Huerta, William Baiz, and Norma Hernan-
dez, warning them not to get involved with the Union or
they would be laid off. ,
On February 6, 1975, Caseres returned to the plant to
pick up his paycheck. He looked for Rega but initially
could find only Foreman Parades. Caseres then testified as
follows, concerning his conversation with Parades:
And I asked Mariano [Parades], "Am I coming back
to work?" He said, "No, I'm not coming back to
work." Then I asked him, "Why was I fired really?"
You know, because chairs get broken all the time. I'm
breaking as many chairs as anybody else. Chairs get
broken all the time.
So, he said that I was really fired because of the
Union.
Following this conversation Caseres ultimately met Rega
and told him that he was ready to return to work, since a
"few days" had already passed and became a whole week
without work. Rega replied "no, that he didn't want [him]
there no mote there was plenty of other people going."
Thereupon Rega handed him the final paycheck.
The record further shows that on February 6, 1975, sev-
eral employees were laid off, among them Ramon Ortiz
Huerta. He testified that, a few days prior to February 6,
Parades told him: "If you people continue that business of
the Union what the old man is going to do is fire you all
and close the factory." At noontime, on February 6 or 7,
Parades distributed paychecks and layoff slips to several
employees and stated to Huerta: "You can take the Union
STARBRITE FURNITURE CORP.
now, you have the Union with you." The following week,
when Huerta returned to pick up his paycheck and to re-
turn his uniform, he asked Frank Rega when he could re-
turn to work. Frank Rega merely replied: "You go ahead
with the Union."
The record further contains two stipulations: One of
them provides that Starbrite granted certain wage increases
and additional vacation days. More specifically, it is stipu-
lated that Respondent had granted the following wage in-
creases: January 19, 1973-10 cents; October 5, 1973-10
cents; May 30, 1974-10 cents; and March 14, 1975-15
cents.
In addition, on March 14, 1975, the employer agreed to
recognize Good Friday and Washington's Birthday as va-
cation days.
The second stipulation is in the form of an admission by
Respondent that on two occasions it "kept under surveil-
lance the meeting places, meetings and activities of the
Union, and the concerted activities of its employees."
B. Analysis of the Evidence
Alleged threats: An analysis of the record evidence as
briefly summarized above clearly shows that Respondent
has made threats to its employees to the effect that their
union support would result in their layoff and prompt
management to close the plant. The consistent testimony
of employees Baiz, Rodriguez, Caban, Hernandez, and
Huerta has convinced me that these threats were directly
made by Foremen Parades and Herrera. The record fur-
ther discloses that these statements were not factual pre-
dictions of economic necessities but unsupported threats
directly designed to dissuade the employees from support-
ing the Union and to discourage the union drive. Indeed,
Respondent had not even maintained in this proceeding
that the entry of the Union into the plant would entail any
layoffs or require the shutdown of the plant as a matter of
economic necessity. Rather, Respondent has simply denied
having made these statements to its employees. However,
as already stated, I cannot credit these denials in- the face
of the consistent testimony to the contrary by at least five
employees.
Respondent's unequivocal statements to its employees
that they would be laid off if they continued to support the
Union and the unsubstantiated remarks to the employees
that management would rather close the plant than to per-
mit the Union are classic threats in violation of Section
8(a)(1). This is further supported by Respondent's animus
as evidenced in the discharge of Lesmes Caseres.
Alleged unlawful discharge: It was Caseres' testimony
that, according to Foreman Parades, Caseres was dis-
charged because of his union activity. Caseres also testified
that on the day of his discharge Rega's explanation for the
suggestion to take off a few days and not to punch in on
that day was that Caseres was breaking too many chairs.
Respondent, however, contends that Caseres was dis-
charged because he was caught smoking marijuana during
working hours. Caseres freely' admitted to having smoked
"pot" on a few occasions, but also testified that Respon-
dent frequently tolerated the drinking of liquor during and
509
after working hours by its employees and foremen and that
his "pot" smoking incidents had happened some time past.
More specifically, Caseres testified that he was first warned
6 months and subsequently 3 months prior to his discharge
about marijuana incidents; and he further admitted that he
had smoked "pot" 3 weeks before he was fired, but he
denied having used any drugs any time thereafter. At this
point a credibility issue arises, since it was Respondent's
testimony that Caseres was caught 1 or 2 days prior to his
discharge.
The record contains an affidavit by Frank Rega which
states that he, Rega, found Caseres "smoking `pot' in the
warehouse on Thursday, January 30, 1975." Yet Mr. Tan-
det testified that he caught Caseres sometime on or about
January 28, 1975, coming out of a bathroom with the odor
of marijuana, and that he related the incident to his general
foreman, Rega, who took it upon himself to fire Caseres. In
his testimony, Mr. Tandet was unable to resolve the appar-
ent conflict as to whether it was he or Rega who caught
Caseres or whether these were two separate incidents. Even
more unreliable was the testimony of Frank Rega dealing
with this issue. For example, Rega first testified that he
discussed Caseres' discharge with his "boss," Mr. Tandet,
between November 25, 1975, after the hearing adjourned
and December 2, 1975, when it resumed. When informed
that Mr. Tandet had denied having had any such discus-
sion, Rega promptly changed his testimony. Reliance on
kega's testimony is, therefore, impossible. Caseres' testi-
mony on the other hand was direct, forthright, and credible
even to the point of his candidly admitting the use of mari-
juana. Obviously, the use of drugs on the job is a very
serious matter which under ordinary circumstances pro-
vides a justifiable basis for the discharge of an employee,
particularly under working requirements involved here.
Employees such as Caseres are exposed to riveting ma-
chines which if handled carelessly could endanger the op-
erator of the machine, as well as his fellow employees at
the assembly line.
The issue here, however, is not whether Caseres had used
drugs on the job which he admitted, nor whether it provid-
ed a justifiable basis; the real issue is whether this conduct
was the real basis for his discharge or whether it was a
mere pretext.
After carefully weighing the conflicting testimony deal-
ing with this issue, as well as Respondent's general lax atti-
tude concerning the use of alcohol during and after work-
ing hours, as described by Caseres and partially admitted
by Tanc`let's testimony, I must conclude that Caseres' dis-
charge was primarily motivated by his union activity. This
conclusion is further supported by considering the time ele-
ment. Caseres' peak activity of his union support, namely
the distribution of union cards, occurred on January 30,
I P75. And on January 31, 1975, 1 day later, -Rega refused
to permit Caseres to punch in for work. The only testimony
tying Caseres' use of marijuana to those dates was that of
Frank Rega whose testimony I found to be contradictory
and unreliable. Tandet's testimony was uncertain about the
exact dates, indicating January 28 or thereabouts, as the
latest incident. However Caseres' frank and forthright tes-
timony leads me to conclude that his latest "pot" smoking
incident occurred 3 weeks prior to his discharge.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's argument that the discharge is obviously
not union related, since it could have been accomplished
with more subtlety by including Caseres with the general
layoffs on February 6, 1975, is not persuasive. His dis-
charge was obviously intended to impress the other em-
ployees with the consequences of an employee's active
union support. In sum, I find that Caseres' discharge was
discriminatory and in violation of Section 8(a)(1) and (3) of
the Act.
Alleged unlawful surveillance: Turning now to the allega-
tions in the complaint dealing with Respondent's acts of
surveillance, it is Respondent's argument that its admission
that on two occasions two supervisors sat in a truck several
hundred feet from one of the entrances where a union or-
ganizational meeting was being held is not sufficient to
find a violation as a matter of law. Respondent argues that
no employee turned away from the meeting as a result of
the truck's presence, that the two supervisors were not
present for the duration of the entire meeting, and that top
management, Mr. Tandet, was unaware of the actions of
Rega and Parades.
The law is clear-surveillance of employees is unlawful
irrespective of whether the employees knew of it, and even
though top management had not authorized the surveil-
lance. N.L.R.B. v. Grower-Shipper Vegetable Association,
122 F.2d 368, (C.A. 9, 1941); Bethlehem Steel Company v.
N.L.R.B., 120 F.2d 641, (C.A.D.C., 1941). Intertype Compa-
ny, A Division of Harris-Intertype Corporation, v. N.L.R.B.,
371 F.2d 787, (C.A. 4, 1967). Moreover, the record indi-
cates that Frank Rega, one of the parties who engaged in
the surveillance, was second-in-command at Starbnte and,
therefore, part of top management. Finally, Respondent's
suggestion that Rega and Parades were unaware of the
strict requirements of the law and that they engaged in the
admitted acts of surveillance out of ignorance of the law
has long been recognized not to be an excuse. In sum, I
have no difficulty in finding that Respondent violated Sec-
tion 8(a)(1) of the Act by these acts of surveillance.
Alleged unlawful grants of benefits: The final allegation of
violation in the complaint deals with Respondent's grant of
wage increases and holidays. In this regard, the record
merely indicates that a 10-cent raise was granted twice in
1973 and once in 1974 and that on March 14, 1975, a 15-
cent raise was given as well as two additional holidays.
General Counsel has attempted to supply Respondent's
motive for the latest increase as being union related, by
relying on inferences and a ' pnor inconsistent pattern of
granting such benefits.
I find the proposed inferences to be farfetched consider-
ing the paucity of the record on this issue. Moreover, I find
Mr. Tandet's explanation that pay raises in his company
are made once or twice a year, considering the economy
and the general profit picture of the company, to be per-
fectly plausible and convincing. Finally, General Counsel
advances virtually no argument concerning the granting of
the 2 vacation days. This leads me to conclude that he may
also be convinced that these allegations have not been sus-
tained. Accordingly, I find that these allegations in the
complaint should be dismissed.
CONCLUSIONS OF LAW
Respondent, Starbrite Furniture Corporation, an em-
ployer engaged in commerce in a business affecting com-
merce within the purview of Section 2(6) and (7) of the Act,
has violated Section 8 of the Act as follows:
1. Respondent violated Section 8(a)(1) of the Act by
threatening its employees that they would be fired or laid
off if they supported the Union.
2. Respondent violated Section 8(a)(1) of the Act by
threatening its employees that it would close the plant if
the Union were admitted in the factory.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging its employee Lesmes Caseres because
of his union support.
4. Respondent violated Section 8(a)(1) of the Act by en-
gaging in acts of surveillance of the employees' union
meetings. -
All other allegations of violations have not been sus-
tained.
THE REMEDY
Having found that Starbrite engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I recommend that Respondent be ordered to cease and
desist from its unlawful practices. I further recommend
that Respondent be ordered to post an appropriate notice.
In addition, I recommend that Lesmes Caseres be of-
fered full and immediate reinstatement to his former or a
substantially equivalent position without loss of benefits or
seniority, and that he be made whole for any loss of earn-
ings suffered by him by reason of the discrimination
against him, together with interest at the rate of 6 percent
per annum, in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I recommend the issuance of the following
recommended:
ORDER'
Respondent, Starbrite Furniture Corp., Stamford, Con-
necticut, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with layoff or discharge if
they support the Union.
(b) Threatening its employees with- the closing of the
plant' because of the Union.
(c) Interfering in any manner with employees' rights un-
der Section 7 of the Act.
1 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
STARBRITE FURNITURE CORP.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Lesmes Caseres immediate and full reinstate-
ment to his former job or, if that job is not available, to
substantially equivalent employment; without prejudice to
his seniority or other rights or privileges and make him
whole for any loss of earnings he may have suffered as a
result of his discharge in the manner set forth in the section
of this Decision entitled "The 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 rele-
vant and necessary to a determination of compliance with
paragraph (a) above.
(c) Post at its Stamford, Connecticut, place of business,
copies of the attached notice marked "Appendix." 2 Copies
511
of said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's rep-
resentative, 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. Rea-
sonable 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 2, in wnt-
mg, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
2 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "