Wilson Trophy Co.

National Labor Relations Board - Board Decisions

May 13, 1992

307 N.L.R.B. 509 (N.L.R.B. 1992)

509
307 NLRB No. 94
WILSON TROPHY CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 The judge’s recommended Order does not include the Board’s
standard remedial injunction against repetition by the Respondent of
‘‘like or related’’ unlawful conduct. We shall modify the Order to
include such language.
1 The following includes a composite of the credited testimony.
Wilson Trophy Company and Ruth Shell. Case 14–
CA–21493
May 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 12, 1992, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wil-
son Trophy Company, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Insert the following as paragraph 1(f).
‘‘(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
Caryn L. Fine, Esq., for the General Counsel.
Ralph Edwards, Esq. and Michael E. Wilson, Esq.
(Greenfelder, Hemker & Gale, P.C.), of Saint Louis, Mis-
souri, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me at Saint Louis, Missouri, on Octo-
ber 2 and 3 and December 9, 1991. The hearing was held
pursuant to a complaint issued by the Acting Regional Direc-
tor for Region 14 of the National Labor Relations Board (the
Board) on July 25, 1991. The complaint is based on a charge
filed by Ruth Shell, an individual (the Charging Party), on
July 3, 1991. The complaint alleges that Respondent Wilson
Trophy Company (the Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by on
or about June 20, 1991, advising its employee Ruth Shell
that she was prohibited from calling a representative of the
Leather Goods, Plastics and Novelty Workers Union, Local
No. 160, affiliated with the International Leather Goods,
Plastics and Novelty Workers Union, AFL–CIO (the Union)
although Respondent does not prohibit other personal calls;
by interrogating Ruth Shell as to the reason she had called
the Union and advising her she would be terminated if she
called the Union again or otherwise became involved in the
Union in violation of Section 8(a)(1) of the Act and by on
or about June 25, 1991, informing her in writing that she was
being discharged and by discharging her because of her
union and/or protected concerted activities in violation of
Section 8(a)(3) and (1) of the Act. Respondent has by its an-
swer filed on August 8, 1991, denied the commission of any
violations of the Act.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified herein, and after due
consideration of the briefs filed by the General Counsel and
counsel for the Respondent, I make the following1
FINDINGS OF FACT
JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
at all times material Respondent is and has been a Missouri
corporation, with an office and place of business in St.
Louis, Missouri, where it is engaged in the manufacture of
nonretail sale of trophies and related products, and that dur-
ing the 12-month period ending June 30, 1991, Respondent
in the course and conduct of its business operations pur-
chased and received at its St. Louis, Missouri facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Missouri and sold and
shipped from its St. Louis, Missouri facility goods and mate-
rials valued in excess of $50,000 directly to points outside
the State of Missouri, and that Respondent is now and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
B. The Labor Organization
The complaint alleges, the Respondent admits, and I find
that at all times material herein the Union is, and has been
a labor organization within the meaning of Section 2(5) of
the Act.
C. Facts
Ruth Shell was initially employed as an accounts receiv-
able clerk on February 5, 1991. Her son, Jeff Shell, was em-
ployed as a shipping and receiving clerk in the Respondent’s
plant in late February 1991. The Union represents the em-
ployees in Respondent’s plant where Jeff Shell is employed.
The office workers including Ruth Shell are not represented
by a labor organization. A controversy arose among several
of Respondent’s employees in the plant including Shell’s son
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concerning the Respondent allegedly hiring new employees
at pay rates above those being paid current employees. Jeff
Shell asked his mother, Ruth Shell to look into the matter.
On June 20, 1991, Ruth Shell attempted to telephone the
union business agent and inquire of him whether the Re-
spondent could pay newly hired employees at pay rates
above those being paid current employees.
The telephone conversation was overheard by Kathy
Miloshewski, a coworker in the same office as Ruth Shell,
who was concerned about whether Ruth Shell could discuss
wages of employees and who immediately informed Re-
spondent’s controller, Charles Martin, of Ruth Shell’s tele-
phone call to the union representative. Shell testified that
Martin, within 5 minutes of the telephone call entered the of-
fice, closed the door and said that Kathy (Miloshewski) had
informed him that she (Shell) had called the Union. Shell re-
plied that she had done so. Martin asked why and she told
him she ‘‘wanted to find out proper procedure and policy on
how to handle a problem with the situation that was in the
warehouse.’’ Martin asked her what the problem was and
Shell told him that Jeff (Shell) had told her ‘‘there were peo-
ple in the warehouse bragging that they were making five
dollars an hour.’’ Shell testified, Martin then ‘‘pointed his
finger at me and he said you are not to call the Union again
for any reason or get further involved in the warehouse or
I will terminate you because if I find you further involved
with the situation, I will terminate you.’’ Martin then left the
office.
Following this incident relations between Ruth Shell and
Miloshewski deteriorated to the point that they were no
longer speaking to each other and Miloshewski was closing
and locking the file cabinets where personnel records and
money were kept. Additionally, Shell stopped speaking to
Martin and cleared her desk of her personal items such as
family pictures. In June a memo from Martin was given to
each employee asking them how they wished to schedule an
upcoming holiday and seeking their return of the memo with
an indication of their preferences. On June 24 or 25, Ruth
Shell turned in her copy of the memo with her preference
indicated thereon and also with notations of spelling errors
on the memo. On the morning of June 25, Ruth Shell took
a call from Norman Stinger, manager of one of Respondents
related companies, concerning a purported error in an invoice
he had received for materials purchased from Respondent.
According to Ruth Shell he had already talked to an order
taker prior to the transfer of the call to her and wanted to
speak to Warehouse Supervisor David Wall who normally
handled incorrect billing problems. Shell testified that when
she told Stinger that Wall was in the warehouse, he de-
manded she immediately find him and hung up in an irritated
manner. She had the invoice in front of her which she had
discussed with Stinger and wrote a note to Wall to call
Stinger and placed it on his desk. Stinger testified that
Shell’s manner on the telephone was rude and he then called
to complain about the treatment he had received from Shell.
Shell thereafter went to lunch and went to a suburban news-
paper in an attempt to locate an advertisement she believed
she had seen earlier wherein Respondent was advertising for
new employees at $5 per hour but was unable to locate it.
Within 10 minutes of her return from lunch Martin came into
her office, laid some papers including a termination letter on
her desk and told her to read and sign it. It is as follows:
WILSON TROPHY COMPANY P. O.BOX 5996
ST. LOUIS, MO 63134
NOTICE OF TERMINATION
June 25, 1991
On Thursday, June 2(0), at 1:15 p.m., Mrs. Ruth
Shell received a verbal warning from her supervisor,
Charles R. Martin for her involvement in activities not
related to the performance of her job. These activities
served to increase an unnecessary disturbance in the
workplace. She was told that any additional involve-
ment in these activities would result in her termination
from her position.
Since that time, Mrs. Shell’s attitude continues to be
a disruption in the workplace. she demonstrates an in-
ability to corporate and get along with her co-workers
as evidenced by complaints received by management
from other personnel in her department. This inability
to cooperate and get along extends to management as
well. An internal memo was recently circulated in the
accounting department with instructions to sign the no-
tice and return it to her supervisor. Mrs Shell returned
the memo with spelling errors highlighted. A complaint
was also received from the manager of one of Wilson
Trophy Company’s related companies.
As management does not feel that the poor attitude
demonstrated by Mrs. Shell will improve, it is in the
best interest of the Accounting Department and the
company in general that her employment with Wilson
Trophy Company be terminated. [Emphasis added.]
EMPLOYEE STATEMENT AND SIGNATURE ON
PAGE 2
Shell told Martin she did not have an attitude problem,
that she had been coming to work, doing her work and had
not said anything to anyone since he (Martin) had rep-
rimanded her on June 20. He told her that was part of her
attitude problem; she had not been speaking to anyone. This
ended the conversation and he told her she had two days to
sign the paper and left the office. She left the office and Re-
spondent has not since reinstated her.
Jeff Shell, John Miller, and Bill Martin, all warehouse em-
ployees testified concerning rumors going around the ware-
house about new hires being brought in at rates of $5 to $7
an hour which was more than many current employees were
making (i.e., Jeff Shell earned $4.50 per hour). These rumors
were a subject of much discussion and consternation among
the employees. Jeff Shell and Miller both talked to Ruth
Shell about it sometime between June 10 and 20. She told
them to talk to their shop steward and their supervisor about
it. Miller talked to shop steward Barbara McGee who said
that Respondent could pay anything they wanted above the
minimum rate and told him she would need proof to process
the grievance. Both Miller and Jeff Shell talked to warehouse
supervisor David Wall who alternately told Jeff Shell that no
one was being started above $4.50 per hour and told Miller
he did not know what new employees were being started at.
Thus dissatisfied with these answers, Jeff Shell and Miller
asked Ruth Shell to attempt to find out more. This was what
511WILSON TROPHY CO.
had precipitated Shell’s telephone call to the Union which
had been reported to Martin by Miloshewski.
On July 15, Warehouse Supervisor Wall called a meeting
among the male employees in the warehouse and told them
not to discuss wages among themselves and if they had any
questions about wages, to tell him and he and the employee
asking the question would go into the office of General Man-
ager Leonard Randall and discuss it with him or according
to Wall take it up with shop steward Barbara McGee. Wall
testified that there were ongoing discussions about wages and
the rumors which he felt were interfering with production
and safety and that this was one of several items he dis-
cussed with the male employees at the meeting including a
lost lift truck key and destruction in the men’s bathroom. In
late August, or early September Wall told an employee who
opened his paycheck, on a Friday payday in the three minute
interval between 4:27 p.m., when a bell rings and the 4:30
p.m., quitting time when employees are permitted to get
ready to go home, that if the employee opened his paycheck
in the building again he would be fired. Wall admitted doing
this but testified that he has since been advised that employ-
ees can open their paychecks in the building and that his
concern was that employees opening their paychecks would
slow down the line of employees leaving work at quitting
time.
D. Contentions of the parties
The General Counsel contends Shell was verbally rep-
rimanded, interrogated and threatened with discharge on June
20 and discharged on June 25 because of her engagement in
protected concerted activities by attempting to call the Union
concerning the entry level wage issue about which her son
and other employees in the plant were concerned.
Respondent contends that Shell’s attempt to call the Union
on June 20 was not protected concerted activity and that
Shell was merely an interloper trying to cause trouble be-
tween the warehouse employees collective bargaining rep-
resentative and the Respondent. It contends she was dis-
charged because of her poor attitude toward Miloshewski
who became upset on June 25, and her poor attitude toward
management as evidenced by her highlighting of errors on
Martin’s memo concerning a holiday, and as evidenced by
a complaint received from Stinger.
E. Analysis
I find that the General Counsel has established a prima
facie case that the Respondent violated Section 8(a)(1) of the
Act by stemming discussions concerning wages among its
employees at the July 15, meeting held by Wall and on the
August or September occasion when Wall, a 2(11) supervisor
threatened employees with discharge if they opened their
paychecks on the premises and that Respondent violated Sec-
tion 8(a)(1) of the Act on June 20, 1991, by disparately pro-
hibiting Ruth Shell from telephoning the Union during work-
ing hours while permitting employees to make other personal
calls during working hours, by interrogating Ruth Shell con-
cerning her reason for calling the Union, and by threatening
her with discharge if she called the Union again or otherwise
became involved in the Union. I further find that Respondent
has established a prima facie case of a violation of Section
8(a)(3) and (1) of the Act by the June 20 reprimand of Ruth
Shell and by the June 25 discharge of Ruth Shell.
Initially the facts in this case are largely not in dispute as
the testimony of Ruth Shell, Jeff Shell, John Miller and Bill
Martin, was not rebutted by Respondent. The right of em-
ployees to engage in concerted activities and collective bar-
gaining with respect to wages is a fundamental Section 7
right guaranteed employees under the Act. If this right is to
be a meaningful one employees must have the right to dis-
cuss wages as such discussion is essential. A.L.S.A.C., 277
NLRB 1532 (1986); Blue Cross-Blue Shield of Alabama, 225
NLRB 1217 (1976); Jeannette Corp., 217 NLRB 653 (1975),
enfd. 532 F.2d 916 (3d Cir. 1977); Falls River Savings Bank,
247 NLRB 631 (1980). In the instant case the evidence is
overwhelming based on Miloshewski’s reaction to that of
wage discussions by Ruth Shell and Martin’s immediate in-
terrogation of Shell, issuance of a reprimand, and threat of
discharge to her and ultimate discharge of her and Wall’s
preclusion of the discussion of wages among the warehouse
employees and the threats issued by him to an employee for
opening his paycheck in the building that Respondent had a
policy of precluding the discussion of wages among its em-
ployees which was enforced with threats and discipline up to
and including termination. I credit the testimony of Ruth
Shell, Jeff Shell, John Miller, and Bill Martin that personal
discussions of varying kinds were permitted on company
time as were personal telephone calls by Respondent’s office
personnel as corroborated by Miloshewski. It was not until
the subject of wages was under discussion and that Shell at-
tempted to call the Union, that Respondent sought to silence
its employees. Respondent’s position that since its warehouse
employees were represented by a union, they could not dis-
cuss wages among themselves and that Ruth Shell as an un-
represented office employee was an interloper who could be
disciplined for getting involved in wage discussions with em-
ployees and taking concerted actions on their belief has no
support in Board law as the restriction of wage discussions
and concerted activities to union representatives is in con-
travention of established law and Board policy. I do not
credit Wall’s testimony that he was merely motivated by pro-
ductivity and safety concerns when he prohibited wage dis-
cussions at the July 15 meeting. Nor do I credit his testi-
mony that he was merely concerned with holding up employ-
ees clocking out with his threat of discharge issued to an em-
ployee opening his paycheck.
With respect to Ruth Shell’s discharge I do not credit Mar-
tin that Shell’s ‘‘attitude’’ by not talking to office personnel
and the incident with the Dallas, Texas branch manager, the
incident with Miloshewski becoming upset with Shell’s atti-
tude toward her and the highlighting of the spelling mistake
in the memo were the real reasons for Shell’s discharge.
Rather I find that Respondent sought to rid itself of someone
it considered an interloper in its relationship with the Union
concerning wages and that the principle reason for the dis-
charge of Shell was this unlawful purpose. Moreover, it is
clear that the poor ‘‘attitude’’ of Ruth Shell was premised
primarily on her reaction to the unlawful interrogation,
threat, and the prohibition of Shell from engaging in con-
certed activities by Martin and Miloshewski’s actions toward
Shell after the reprimand. It is undisputed that until the time
of the unlawful reprimand and threat of discharge of Shell,
there had been no dissatisfaction with her work performance
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
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
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.’’
and no prior discipline of her and that Respondent does not
contend the actions taken against Shell were based on her
work performance.
I accordingly, find that the Respondent has failed to rebut
the prima facie case established by the General Counsel by
the preponderance of the evidence and has failed to persua-
sively demonstrate that Ruth Shell would have been rep-
rimanded and discharged in the absence of her protected con-
certed activities in attempting to contact the union represent-
ative concerning the wages of employees in the warehouse,
and that Respondent thereby violated Section 8(a)(3) and (1)
of the Act by the reprimand and discharge of Ruth Shell.
Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984); NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
I find also that Respondent’s prohibitions against wage dis-
cussions and threats issued to its employees were violative
of Section 8(a)(1) of the Act. Independent Stations Co., 284
NLRB 394 (1987); Meyers Industries, 268 NLRB 493 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985) (Meyers II).
CONCLUSIONS OF LAW
1. Respondent Wilson Trophy Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by pro-
hibiting its employees from engaging in wage discussions, by
interrogating and threatening Ruth Shell with discharge for
telephoning the Union during working hours while dispar-
ately permitting other personal telephone calls to be made by
its employees during working hours, and by threatening them
with discharge for doing so and for opening their paychecks
on its premises.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by its reprimand and discharge of its employee Ruth Shell.
4. The above unfair labor practices in connection with the
business of Respondent as set out above have the effect of
burdening commerce and are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist therefrom, and to take
certain affirmative actions, including the posting of an appro-
priate notice designed to effectuate the purposes of the Act.
Respondent shall rescind its unlawful reprimand and dis-
charge of its employee, Ruth Shell, and offer her full rein-
statement to her former position or to a substantially equiva-
lent position if her former position no longer exists and make
her whole for all loss of pay and benefits, including seniority
and other rights and privileges sustained by her as a result
of Respondent’s unlawful discrimination against her. Back-
pay and benefits shall be with interest as computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).2 Respondent shall also
expunge its records of all references to the unlawful actions
taken against Ruth Shell and inform her in writing that this
has been done and that such unlawful actions will not be
used against her in any manner in the he future. Respondent
shall also preserve all necessary records for computing back-
pay and benefits and make them available to the Regional
Director for Region 14, or his representatives.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Wilson Trophy Company, St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disparately prohibiting its employees from telephoning
the Union during working hours while permitting other per-
sonal calls.
(b) Interrogating its employees concerning their reasons
for calling the Union.
(c) Threatening its employees with termination if they tele-
phone the Union or otherwise become involved in the Union
or engage in protected concerted activities.
(d) Prohibiting its employees from discussing wages or
opening their paychecks on its premises and threatening them
with discharge if they do so.
(e) Reprimanding and discharging its employees because
of their engagement in union or protected concerted activi-
ties.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its reprimand and discharge of its employee,
Ruth Shell, offer her full reinstatement to her former position
or if her former position no longer exists, offer to reinstate
her to a substantially equivalent position. Make her whole for
all loss of earnings and benefits sustained by her by reason
of its unlawful discharge of her, with interest as prescribed
in ‘‘The Remedy’’ and restore all rights and privileges in-
cluding seniority previously enjoyed by her.
(b) Expunge from its records all references to its unlawful
reprimand and discharge of Ruth Shell and inform her in
writing that this has been done and that such unlawful acts
will not be used against her in any manner.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Saint Louis, Missouri, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice on forms provided by the Regional Director for Region
14, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees
513WILSON TROPHY CO.
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, 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 Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT prohibit our employees from opening their
paychecks on our premises, discussing wages, telephoning
the Leather Goods, Plastics and Novelty Workers Union,
Local No. 160, affiliated with the International Leather
Goods, Plastics and Novelty Workers Union, AFL–CIO or
otherwise engaging in union or other protected concerted ac-
tivities, or threaten them with discharge for doing so.
WE WILL NOT reprimand or discharge our employees be-
cause of their engagement in union or other protected con-
certed activities.
WE WILL NOT in like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
WE WILL rescind our unlawful reprimand and discharge of
Ruth Shell and offer her full reinstatement to her former po-
sition or to a substantially equivalent position if this position
no longer exists, and will make her whole for all loss of
earnings and benefits sustained by her because of our unlaw-
ful conduct, with interest, and will restore to her all rights
and privileges previously enjoyed in the manner set forth in
the remedy section of the decision.
WE WILL expunge from our files any references to the un-
lawful reprimand and discharge of Ruth Shell and will in-
form her in writing that this has been done and that said un-
lawful conduct will not be used against her in any manner
because of engagement in union or concerted activities.
WILSON TROPHY COMPANY