U S Furniture Industries

National Labor Relations Board - Board Decisions

Mar 10, 1989

293 N.L.R.B. 159 (N.L.R.B. 1989)

US FURNITURE INDUSTRIES
Chatham County of High Point, a Division of U S
Furniture Industries and James Turner Case
11-CA-12659
March 10, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On November 23, 1988, Administrative Law
Judge J Pargen Robertson issued the attached de
cision The Respondent filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Chatham County of High Point, a Divi-
sion of U S Furniture Industries, High Point,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified
1 Substitute the following for paragraph 1(b)
(b) In any like or related manner interfering
with, restraining, or coercirg employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act "
2 Substitute the attached notice for that of the
administrative law judge
r The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judges credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
159
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge our employees because
they engage in protected concerted activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer immediate and full reinstatement
to James Turner to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges previously enjoyed
WE WILL make James Turner whole for any loss
of earnings he suffered by reason of his discharge,
with interest
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way
CHATHAM COUNTY OF HIGH POINT,
A DIVISION OF US FURNITURE IN-
DUSTRIES
Patricia L Timmins Esq, for the General Counsel
Robert E Sheahan Esq of High Point, North Carolina
for the Respondent
DECISION
STATEMENT OF THE CASE
J PARGEN ROBERTSON Administrative Law Judge
This case was heard by me in Winston Salem North
Carolina, on August 31, 1988 The complaint which
issued on May 2 1988 based on a charge filed on March
18 1988 alleges that Respondent violated Section 8(a)(1)
of the Act i
The issue here is whether James Turner was dis
charged because he engaged in protected activity Spe
cifically this decision must address the basis for Re
spondent s decision to discharge Turner on March 4
1988, and whether that basis illustrates conduct viola
tive of Section 8(a)(1)
In dealing with the question of the basis for Respond
ent s decision to discharge James Turner I must deter
mine the source of Respondents decision
i Respondent in its answer to the complaint admitted all the com
merce allegations and that it is an employer engaged in commerce within
the meaning of Sec 2(6) and (7) of the Act
293 NLRB No 19
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The highest ranking supervisor that testified was Don
Gouge, Respondents warehouse manager Gouge was
the supervisor who told Turner that he was discharged
Although James Turners testimony was disputed on
several points, there was no dispute regarding his testa
mony about his terminal interview with Warehouse Man
ager Gouge
[Don Gouge] told me that I had been terminated by
the Company and that it had been nice working
with me And I asked him why had I been terminat
ed and he said he did not know And I could ask
Larry Smith for further details
Gouge did not testify concerning the specifics of his
terminal interview with Turner Gouge did admit that
Larry Smith made the decision to terminate Turner
Gouge testified
Larry Smith and he s my boss and I d mentioned it
to him also, about what happened And I think it
was about 3 15 he come [sic] into my office and
told me to go ahead and terminate Jim Turner for
insubordination So I did
After being told of his discharge by Gouge Turner
spoke to Larry Smith Smith did not testify Turner s tes
timony regarding his conversation with Smith is unrebut
ted
I asked him why I had been terminated from the
Company He asked me if I asked Don Gouge why
I had been terminated from the Company and I told
him that I had inquired it of him and he said he did
not know I could ask and he said Don told you he
didn t know And I said yes that s what he told me
And he sort of looked at me funny He told the
reason you ve been terminated is under the-insub
ordination which is to say you ve been talking with
the temporaries about the wages and the benefits
and that there was a dispute there as far as what he
made and what they made And that I didn t get
along with the new employees or I didn t want
them working there And he said-insubordination
or not I don t know but that s the way it is
Dunng work on the day of his discharge James
Turner talked with several employees including Sandy
Dalkins who had been recently hired, and Alonzo
Miller Turner s conversations also included two employ
ees of Regency Temporary Service One of those tempo
rary employees was Hubert Strickland Strickland was
assigned to work at Respondent on March 4 1988
Those conversations included employees wages and the
difference between the hourly wage of the temporary
employees and that of new hires Dalkins and Miller
The temporary employees were making $5 an hour
while Dalkins and Miller were making $4 an hour
Anton Holland was the only supervisor that overheard
any of the conversations involving Turner and others
Holland overheard Turner discuss the difference in the
wage rates of temporary employees and new hires Hol
land testified
Q Just relate what you overheard at that time
A Turner was making a comparison as far as
wages and telling these guys like man you guys
fools for working here and these guys making so
much and these guys making so much and these
guys and I wouldn t do this and he just making
them feel bad And he-
Q Did he suggest that they quit) Did Mr Turner
suggest that Dalkins and Miller quit?
A He made the statement like I wouldn t work
here if they were getting paid more than I was
And he was laughing and you know, the more he
laughed I guess, the more they was getting upset
there
Soon after Holland overheard Turner talking with
Dalkins, Miller, and others, Sandy Dalkins and Alonzo
Miller talked with Warehouse Manager Don Gouge
Gouge testified about that conversation
So when I went back out into the warehouse
Sandy and Alonzo was walking toward me to
wards the time clock I stopped them and asked
them what their problem was They said we re
thinking about quitting And I said if you re not
happy with the job, you might as well go ahead and
quit And they said okay So they went and
punched out
Discussion
Respondent in its brief, contends James Turner was
fired on March 4, 1988 because he intentionally and de
liberately instigat[ed] other employees to quit their jobs
Respondent contends that Turner was not discharged be
cause he discussed wages with other employees In fact
Respondent , in its brief concedes that the law is clear
that discharge for that reason would constitute a viola
tion
The General Counsel on the other hand argues that
Turner was discharged because he discussed wages with
other employees
The undisputed evidence shows that the General
Counsel is correct The testimony regarding Turner's
conversation with the official who decided to discharge
him, Larry Smith, shows that Turner s discharge was
motivated by his talking with the temporaries about the
wages and the benefits and that there was a dispute there
as far as what we make and what they make Smith said
nothing about instigating other employees to quit their
jobs
That evidence shows that Turner s discussion about
wages constituted a reason for his discharge Regarding
Respondents contention that Turner intentionally and
deliberately instigated other employees (i e , Dalkins and
Miller) to quit their jobs, I shall consider what evidence
was available to Larry Smith when he decided to fire
Turner
Although several employees testified there was no
showing that any of those employees reported to super
vision what Turner had said The only supervisor shown
to have knowledge of what Turner said was Anton Hol
land Holland s material testimony is quoted above
US FURNITURE INDUSTRIES
There are several factors to consider in determining
the impact of Turner s comments to Dalkins and Miller
Regarding his influence on their quitting it is noteworthy
that subsequent to their discussion with Turner, Ware
house Manager Gouge suggested to Dalkins and Miller
that they quit
Secondly I must consider to what extent Turner s
comments were not part and parcel of the wage dis
cussion, i e, if the law protects employees in their discus
sion of wages, is it permissible to limit that discussion to
comments that do not rise to the level of suggesting
strong actions by employees
Additionally I must question whether Respondent ac
tually determined that Turner would have been dis
charged absent the wage discussion (Wright Line 251
NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981),
cert denied 455 U S 989 (1982)) There is substantial
evidence that it was the wage differential that motivated
Turner s comments Moreover the discharging supervi
sor Larry Smith clearly articulated that the wage com
ments motivated Turner s discharge The record does
not show that Respondent was ever able to separate the
wage discussions from the remainder of the employees
discussions
As noted above, the unrebutted evidence shows that
instigating other employees to quit their jobs was not ar
ticulated as a reason for Turner s discharge until ad
vanced in these proceedings During his terminal inter
views with Don Gouge and Larry Smith, James Turner
was not told that the was being discharged because he
caused Dalkins and Miller to quit
Finally there is no showing that Respondent ever pur
sued an inquiry into why Dalkins and Miller quit The
assertion that Turner intentionally and deliberately
instigat[ed] resignations of other employees is not deter
minative of whether Turner was discharged because of
his protected activities Even if Respondent had deter
mined that Dalkins and Miller quit because of Turner s
comments, its activity may have been violative if those
comments were protected The evidence shows that Re
spondent did not inquire why Dalkins and Miller quit It
did not ask them first if Turner s comments caused their
resignation and, if so which comments by Turner caused
the resignations I am unable to determine that Respond
ent relied on unprotected comments by Turner when
there was no showing that it even questioned why Dal
kins and Miller quit
The above considerations convince me that the moti
vating factor for Respondent's action was James Turner s
discussion with other employees and with temporary
workers assigned to work for Respondent about their
wage rates That action by Respondent constitutes a vio
lation of Section 8(a)(1) (See Rescue Systems, 284 NLRB
694 (1987)), Scientific Atlanta Inc 278 NLRB 467
(1986) Electronic Data Systems 278 NLRB 125 (1986)
The Loft, 277 NLRB 1444 (1986), A L S A C, 277
NLRB 1532 (1986) The evidence failed to prove that
Respondent would have discharged Turner in the ab
sence of his protected activities
CONCLUSIONS OF LAW
161
1 Chatham County of High Point , a Division of U S
Furniture Industries is an employer engaged in com
merce within the meaning of Section 2 (6) and (7) of the
Act
2 By discussing wage rates with other employees
James Turner engaged in protected concerted activity
3 By discharging employee James Turner because he
engaged in discussions that were protected under the
Act, Respondent violated Section 8(a)(1) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices in violation of Section 8(a)(1)
of the Act I shall order it to cease and desist, and to
take certain affirmative action designed to effectuate the
policies of the Act
Having found that Respondent has illegally discharged
its employee James Turner in violation of Section 8(a)(1)
of the Act I shall order Respondent to offer Turner im
mediate and full reinstatement to his former position or
if that position no longer exists, to a substanially equiva
lent position, without prejudice to his seniority or other
rights and privileges and to make Turner whole, with
interest, for any loss of earnings he suffered as a result of
the discrimination against him Backpay and interest shall
be computed in the manner prescribed in F W Wool
worth Co 90 NLRB 289 (1950), plus interest as comput
ed in New Horizons for the Retarded 283 NLRB 1173
(1987) 2
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed3
ORDER
The Respondent Chatham County of High Point a
Division of U S Furniture Industries High Point, North
Carolina its officers agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging its employees because of their protect
ed concerted activities
(b) In any like or related manner restraining or coerc
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer James Turner immediate and full reinstate
ment to his former job or if that job no longer exists to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
2 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (effective date
of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and other benefits suffered as a result of the discrimina
tion against him, in the manner set forth in the remedy
section of the decision
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way
(c) Preserve and, on 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 nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility, in High Point, North Carolina
copies of the attached notice marked Appendix 4
4 If 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 Nation
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
al 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