Bruce Hardwood Floors

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 996 (N.L.R.B. 1994)

996
314 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents also has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s 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.
2 The Respondent submitted a memorandum which allegedly was
posted at the worksite and dated August 1, 1988, and the General
Counsel submitted an undated employee handbook. Both include
provisions which state that an employee who leaves his or her work
station during worktime must obtain the permission of his or her su-
pervisor and that failure to do so is grounds for immediate discharge.
The Respondent further contends in its exceptions that the judge
erred in not finding that Hill was discharged for violating this rule
and for interfering with the work of Parker, his helper, and the ‘‘cru-
cial’’ work of Union Steward Person in the lumber tally booth.
However, we find no merit in this exception, for the reasons set
forth above, and agree only that evidence of such a rule was pre-
sented.
3 The judge also concluded that Hill’s interruption of Person was
‘‘minimal,’’ as it lasted no more than 10–20 seconds.
Bruce Hardwood Floors and James C. Hill. Case
26–CA–15662
August 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 24, 1994, Administrative Law Judge Phil-
ip P. McLeod issued the attached decision. The Re-
spondent 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, as modi-
fied below, and conclusions and to adopt the rec-
ommended Order.
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by threatening
to discharge and by discharging James C. Hill in retal-
iation for his attempt to help fellow employee Parker
pursue a grievance and for offering to serve as his wit-
ness. In its exceptions,1 the Respondent asserts, inter
alia, that the judge erred in finding that it had offered
no evidence that it maintained a work rule providing
for the discharge of an employee for leaving his or her
assigned work area without the permission of that em-
ployee’s supervisor. We find merit in this exception.2
However, because of other evidence which supports
the judge’s findings, we adopt his conclusion and rec-
ommended Order. In particular we note, as discussed
below, that the Respondent failed to impose discipline
in the instances in which employees violated this rule
with respect to Union Steward Person.
In concluding that the Respondent violated the Act,
the judge, inter alia, credited testimony which estab-
lished that employees routinely spoke with Union
Steward Person during work hours and while Person
was working.3 The judge credited former employee
and Respondent witness Philip Brown who testified
that employees frequently went to Person while he was
working in the tally booth and when lumber was being
graded.
Employee Carlos Hurt testified that he had spoken
with Person inside his tally booth on 300 to 400 occa-
sions and that he would often sit and talk to Person.
After one such visit, Supervisor Dubose, who was
aware that Hurt had been visiting with Person, in-
formed Hurt that he should no longer go to the lumber
slips and talk. However, no formal action was taken
against Hurt. In addition, employee Charlie Smith tes-
tified that he had entered Person’s tally booth and spo-
ken to him ‘‘quite often’’ while Person was working
and lumber was being graded. During one of those vis-
its, Supervisor Dubose informed Smith that he should
not be in the booth. Smith, however, received no dis-
cipline.
The judge further addressed three incidents raised by
the Respondent in which it allegedly discharged em-
ployees for leaving their work areas without permis-
sion. Two of the discharges, the judge concluded, oc-
curred after Hill’s discharge and merely indicated that
the Respondent had attempted to enforce a rule after
Hill’s discharge. The judge found the remaining dis-
charge to be clearly distinguishable from Hill’s dis-
charge as it involved a production employee who
walked away from operating equipment. By contrast,
Hill’s work area encompassed the entire yard and his
interruption of Person was minimal.
We agree with the judge that the evidence amply
demonstrates that other employees routinely interrupted
Union Steward Person for longer periods than Hill
without being disciplined and we find that the three in-
stances the Respondent cites of its discharge of em-
ployees for leaving the work area do not outweigh that
evidence. Accordingly, and in light of the judge’s other
findings with which we agree, we conclude that the
Respondent violated Section 8(a)(1) and (3) of the Act
by threatening to discharge and by discharging James
C. Hill in retaliation for his attempt to help fellow em-
ployee Parker pursue a grievance and for offering to
serve as his witness.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bruce Hardwood Floors,
Jackson, Tennessee, its officers, agents successors, and
assigns, shall take the action set forth in the Order.
997BRUCE HARDWOOD FLOORS
1 All dates herein refer to 1993 unless otherwise indicated.
William D. Levy, Esq., for the General Counsel.
Edward Bograd, Esq. (Blair, Conaway, Bograd & Martin),
of Charlotte, North Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case on October 14 and 15, 1993, in Jackson, Tennessee. The
case originated from a charge filed by James C. Hill against
Bruce Hardwood Floors (Respondent). Thereafter, a com-
plaint and notice of hearing issued which alleges, inter alia,
that Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by threatening to dis-
charge and later discharging James C. Hill because he en-
gaged in union or concerted activities protected by the Act.
In its answer to the complaint, Respondent admitted cer-
tain allegations, including the filing and serving of the
charge; its status as an employer within the meaning of the
Act; the status of UBC, Southern Council of Industrial
Workers of America, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, as a labor organization within
the meaning of the Act; and the status of certain individuals
as supervisors and agents of Respondent within the meaning
of Section 2(11) of the Act. Respondent denied having en-
gaged in any conduct which would constitute an unfair labor
practice within the meaning of the Act.
At the trial, all parties were represented and afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Following the close of the
trial, counsel for General Counsel and Respondent both filed
timely briefs with me which have been considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Bruce Hardwood Floors is, and has been at all times mate-
rial herein, engaged in the manufacture and distribution of
hardwood flooring at its facility in Jackson, Tennessee. In the
regular course and conduct of its business, Respondent annu-
ally sells and ships from its Jackson facility products valued
in excess of $50,000 directly to points outside the State of
Tennessee.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
UBC, Southern Council of Industrial Workers of America,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At its Jackson, Tennessee facility, Respondent manufac-
tures hardwood flooring. The facility includes a lumber yard
where raw cut lumber is received, graded, stacked, dried, and
restacked. Raw cut lumber is delivered to a slip where it is
first graded by inspectors and then pulled by a chain con-
veyor to a stacking area. Approximately 60 to 70 employees
work in the yard in various positions as inspectors, tally per-
sons, forklift drivers, and helpers.
All production and maintenance employees at Respond-
ent’s Jackson facility, including those who work in the lum-
ber yard, are represented for purposes of collective bar-
gaining, and covered by a collective-bargaining agreement
negotiated on their behalf by UBC, Southern Council of In-
dustrial Workers of America, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
B. James C. Hill
James C. Hill was employed by Respondent at the Jackson
facility for approximately 12 years prior to his termination in
January 1993. Hill worked for approximately 4 years as a
material handler and, thereafter, as a forklift driver. In March
1992, Hill bid for and received the position of lift operator
leadperson.
As leadperson, Hill operated a forklift and gave routine
work instructions to two other lift operators and two lift
helpers. Hill himself was assisted by a lift helper, Steve
Parker, who rode on the side of Hill’s forklift and helped
Hill as needed. Hill’s primary duty was loading and unload-
ing a Coe Stacker, taking lumber to the stacker, and remov-
ing lumber from the stacker to specific areas of the yard or
to a predryer. Hill transported lumber on a forklift to various
grading slips and from the slips to various stacking areas.
Hill also had routine duties to perform in keeping the yard
clean and in proper order. Hill’s duties took him throughout
Respondent’s yard.
C. The Warning Issued to Steve Parker
During the week of January 18, 1993,1 Steve Parker noti-
fied Supervisor Rick Dubose that he would be absent from
work on Friday of that week in order to attend the funeral
of a nephew. Parker testified that on Friday, January 22, he
had two other conversations with Dubose, one when he
called in prior to clock-in to again report that he would be
absent, and another when he went to the facility to pick up
his paycheck. Parker testified that when he picked up his
paycheck, he had a conversation with Dubose in which he
thought Dubose stated Dubose was going to treat the day as
a ‘‘nonwork schedule.’’ Dubose recalled the conversation
somewhat differently, testifying that Parker ‘‘thanked me for
letting him have the entire day.’’ According to Dubose, how-
ever, when he handed Parker his paycheck, he told Parker
that when he returned to work, Parker should turn in a state-
ment certifying that he was in attendance at his nephew’s fu-
neral.
There is no dispute about the fact that Respondent ordi-
narily requires an employee absent for reason such as a fu-
neral to bring a statement confirming that is where he has
been. On the other hand, however, a ‘‘nonwork schedule
day,’’ or unscheduled workday, does not require an em-
ployee to report to work and therefore does not require the
employee to bring an excuse for his/her absence.
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
James Hill testified that during the afternoon of Parker’s
absence, Supervisor Dubose approached him and asked if
Parker had spoken to him about attending the funeral of a
nephew. Hill confirmed for Dubose that Parker had told him
in advance Parker would be absent for the funeral. Hill testi-
fied that Dubose then stated that he ‘‘was going to write it
down for a non-scheduled work day.’’
When Parker returned to work on Monday, January 25,
Parker did not bring with him any statement certifying that
he had attended the funeral. That afternoon, at approximately
1:45 p.m., Dubose gave Parker a written warning for ‘‘unex-
cused absence’’ because Parker did not bring a statement
verifying the Friday absence. Present at the time Dubose
issued the warning to Parker was Jerry Person, the union
steward who worked as a tally person in the yard.
D. January 25: Hill’s Actions on Behalf of Parker
Parker told Hill about receiving the warning. Parker told
Hill that he had been disciplined for his Friday absence even
though Parker believed that Dubose had given him a non-
scheduled workday which would not have required him to
bring back a statement explaining his absence. Hill re-
sponded that Parker should file a grievance about receiving
the warning. Within a matter of a few minutes, Hill drove
his forklift to the slip where Union Steward Person was
working. Hill approached Person’s tally booth and knocked
on the glass to get Person’s attention. Hill then asked Person
why Dubose had given Parker a written warning. Person told
Hill that he would discuss the matter with him later. At
Hill’s suggestion, Union Steward Person agreed to meet with
Hill and Parker in the employee parking lot after the end of
the workday. As Hill turned and left, Hill cursed, although
it is not clear whether he cursed Person, Dubose, or the
warning issued to Parker. Hill returned to his forklift and left
to continue his normal work duties. There is no dispute that
Hill’s conversation with Person lasted only about 10 to 20
seconds, and that the whole time he was away from his reg-
ular duties was no more than 2 or 3 minutes.
At or near the end of the shift on January 25, several lum-
ber inspectors told Dubose about the fact that Hill had come
to the slip and had spoken to Union Steward Person about
the warning given to Parker. Union Steward Person was told
by other lumber inspectors before he met with Hill and
Parker that Dubose was upset or unhappy about Hill having
come to the tally booth and talked to him about the griev-
ance.
After the working day ended on January 25, Union Stew-
ard Person met with Parker and Hill in the parking lot as
prearranged. Hill told Person that Dubose should not have
issued a warning to Parker because Dubose had earlier in-
formed him and employee Helen Traylor that Parker’s ab-
sence on January 22 would be treated as an unscheduled
workday. Hill expressed the view that Person should file a
grievance on Parker’s behalf, and that he and Traylor would
serve as witnesses in support of the grievance. Person told
Parker he should get a statement from Hill and that all three
employees (Parker, Hill, and Traylor) would have to testify.
Parker stated that he would just as soon drop the matter and
take the writeup.
E. Respondent’s Discharge of Hill
Union Steward Person testified that on Tuesday morning,
January 26, he went to Supervisor Dubose’s office and told
Dubose that Parker was going to file a grievance concerning
the discipline given him on January 25. Person testified he
told Dubose that Hill, and perhaps Traylor, would serve as
witnesses on Parker’s behalf. Person testified credibly that
Dubose replied, ‘‘I can fire him too.’’ Person testified that
at one point during the conversation, Dubose asked, ‘‘Why
did he do what he did?’’ Person stated that he made no
reply. Person testified that later the same day, he told Hill
what Dubose had said, i.e., that Dubose said he could fire
Hill too. Dubose denied telling Person that he could fire Hill
for testifying on Parker’s behalf.
As between Person and Dubose, I have no trouble what-
ever crediting Person. I find that when Union Steward Person
told Supervisor Dubose that Parker was going to or might
file a grievance over the discipline given him on January 25,
and that Hill would testify on Parker’s behalf, Dubose re-
plied, ‘‘I can fire him too.’’ I note one possible interpretation
of the facts in this case is that Dubose made this statement
to Person on the afternoon of January 25, because Hill testi-
fied that when he met with Steward Person in the parking
lot late that afternoon, Person told Hill about Dubose’s
threat. Another, more likely interpretation, is that Hill was
simply wrong about the timing of Person telling him about
Dubose’s threat. Person corroborates Hill that he told Hill
about Dubose’s threat, but according to Person he told Hill
about the threat later in the day on January 26, after the
threat was made that morning. I find that Person’s account
is more accurate. Despite vigorous cross-examination by Re-
spondent’s counsel concerning Dubose’s statement to Person,
Person testified repeatedly and credibly that Dubose stated,
‘‘I can fire him too.’’ Person seemed altogether confident
and sure not only of Dubose’s remark, but the timing as
well.
Respondent argues that Person’s account is not credible
since Parker stated in the parking lot on the afternoon of Jan-
uary 25, he would simply accept Dubose’s written warning.
It is not at all illogical that in spite of Parker saying he
would accept Dubose’s discipline, Person should decide to
pursue the matter further in light of Hill telling Person that
both he and Traylor would testify on Parker’s behalf. In the
final analysis, all of this discussion leads more toward a find-
ing of when Dubose made the threat to Person, and not to
whether the threat was made, a matter on which I have no
doubt and on which I credit Person entirely.
The record reflects that on the morning of January 26, al-
most certainly after Person told Dubose that Hill would tes-
tify on Parker’s behalf, Dubose again spoke with each of the
lumber inspectors to determine more specifically what Hill
had done when he came to the slip on the previous after-
noon. Dubose then went and spoke with personnel director
Mary Meadows to initiate Hill’s discharge. Meadows told
Dubose that she would speak to general manager Jim Horner
and that Horner or Meadows would get back in touch with
Dubose. When neither Horner or Meadows got back in touch
with Dubose, Dubose went himself to speak with general
manager Horner near the end of the workday on January 26.
Dubose told Horner that Hill had interrupted Person’s work
and recommended Hill’s discharge. After hearing the facts
presented by Dubose, Horner authorized Dubose to terminate
999BRUCE HARDWOOD FLOORS
Hill for walking off the job. Dubose then went back to his
office and pulled Hill’s timecard.
On Wednesday morning, January 27, when Hill reported
to work, Dubose called Hill and Union Steward Person to his
office and discharged Hill. Although the decision had already
been made to discharge Hill, Dubose asked Hill about his
coming to Person’s work station on January 25 and inter-
rupting Person’s work. After Hill told Dubose his version of
the facts about what happened on January 25, Dubose in-
formed Hill that the decision had been made to discharge
him, and handed Hill a written notice which stated that Hill
was being discharged because he ‘‘walked off the job.’’
After Hill was discharged and Dubose brought the termi-
nation papers to Personnel Director Meadows for processing,
Meadows told Dubose that the reason provided on the termi-
nation was incorrect and that the termination should have in-
dicated Hill left his assigned work area rather than walked
off the job. A new separation notice was prepared and given
to Hill on Friday, January 29, when Hill came to pick up his
final paycheck. The corrected termination notice states that
Hill was discharged for ‘‘leaving the assigned work area.’’
Analysis and Conclusions
There is really no question that all of Hill’s actions on be-
half of fellow employee Steve Parker were directed toward
attempting to help Parker pursue a grievance pursuant to col-
lective-bargaining agreement between Respondent and the
Union to protest the warning which had been given to Parker
by Supervisor Dubose. It is well established that employee
actions in pursuing such a grievance or enforcing the terms
of a collective-bargaining agreement constitute protected
union activity within the meaning of the Act. NLRB v. City
Disposal Systems, 465 U.S. 822 (1984); Supreme Optical
Co., 235 NLRB 1432 (1975); Interboro Contractor, 157
NLRB 1295 (1966). The record amply demonstrates that
Dubose became unhappy and upset when he learned that Hill
had come to Person’s tally booth and spoken to Person about
the warning Dubose had given to Parker. I credit Steward
Person that on Tuesday morning, January 26, he told Super-
visor Dubose that Parker was going to file a grievance con-
cerning the warning and that Hill, and perhaps Traylor,
would serve as witnesses on Parker’s behalf. I also credit
Person that when he told Dubose this, Dubose replied, ‘‘I
can fire him too.’’ Respondent argues that Dubose’s state-
ment did not constitute an unlawful threat of reprisal because
Dubose was referring to being able to fire Hill for being
away from his work area. The simple fact that Dubose may
have thought Hill had committed some transgression with
which Dubose could justify Hill’s discharge does not negate
the fact that Dubose was issuing this threat because, and in
retaliation for, Hill testifying on Parker’s behalf. Any inter-
pretation of the facts lead to the conclusion Dubose was an-
gered to hear Hill would testify on Parker’s behalf con-
cerning a grievance, and Dubose was threatening to retaliate
against Hill for this. I find that Dubose threatened to fire Hill
in retaliation for Hill’s union and concerted activities, and
Respondent thereby violated Section 8(a)(1) of the Act.
After Dubose threatened Hill’s discharge, Dubose then fol-
lowed up on his threat by actually causing Hill to be dis-
charged. Dubose approached Personnel Director Mary Mead-
ows, who told Dubose that she would speak to General Man-
ager Jim Horner and that either Horner or Meadows would
get back in touch with Dubose. When neither Horner nor
Meadows got back in touch with Dubose, Dubose then pur-
sued the matter by himself approaching General Manager
Horner near the end of the workday on January 26. Respond-
ent argues that it was General Manager Horner who ulti-
mately authorized Hill’s discharge, and since there is no evi-
dence Horner was unlawfully motivated, Hill’s discharge did
not violate the Act. I reject Respondent’s argument. Re-
spondent would ignore the fact that Dubose initiated the dis-
charge, reported his version of the facts to General Manager
Horner, and even recommended Hill’s discharge. Respondent
cannot be insulated from Dubose’s unlawful motivation sim-
ply because the final action in discharging Hill was author-
ized by Horner. Clearly, Dubose caused Hill to be dis-
charged. I find counsel for General Counsel has established
a strong prima facie case that Hill was discharged by Re-
spondent in retaliation for Hill attempting to help fellow em-
ployee Steve Parker pursue a grievance pursuant to the col-
lective-bargaining agreement between Respondent and the
Union. Discharging an employee for such activity clearly
violates Section 8(a)(1) and (3) of the Act. NLRB v. City
Disposal Systems, supra; Supreme Optical Co., supra;
Interboro Contractor, supra. Pursuant to Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 NLRB 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 461 U.S. 393 (1983), the bur-
den shifts to Respondent to demonstrate that the same action
would have taken place even in the absence of the protected
conduct. For the following reasons, I find that Respondent
has failed to meet that burden.
Dubose asserted that he had no knowledge of Parker pos-
sibly filing a grievance. Dubose also claimed that prior to
Hill’s discharge, he had no knowledge that Hill might serve
as a witness on behalf of Parker. I found Dubose less than
credible. Dubose testified that he learned of Hill’s visit to
Person’s tally booth from lumber inspectors. Dubose testified
that Inspector Philip Brown reported to him the nature of the
conversation between Hill and Person. Dubose admitted that
Brown informed him that Hill ‘‘was excited and that it had
something to do with Steve Parker.’’ General Manager
Horner testified that when Dubose approached him to get au-
thorization to discharge Hill, Dubose informed Horner that
Hill went to Person’s booth because ‘‘he was upset about the
discipline to his lift helper.’’ Moreover, I note that in an un-
employment compensation hearing in April 1993, Respond-
ent asserted that Hill was discharged because he was engaged
in union business on company time. I find Dubose was very
much aware that Hill might testify on behalf of fellow em-
ployee Steve Parker, and that this is what precipitated both
Dubose’s threat and Hill’s discharge.
Respondent next argues that Hill was discharged not be-
cause he might testify on behalf of a fellow employee, but
solely because Hill left his work area and interrupted Per-
son’s work at the tall booth. Although Respondent admits
that Hill’s trip to Person’s tally booth took no more than 1
or 2 minutes, and Hill’s conversation with Person took no
more than 10 to 20 seconds, Respondent argues that this
alone resulted in Hill’s discharge, regardless of the reason for
Hill visiting Person. Respondent first argues that there is a
plant rule which provides for the discharge of any employee
who leaves his assigned work area without first obtaining
permission of his supervisor. In fact, Respondent offered no
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence whatever that such a rule existed! If such a rule ex-
isted, the rule itself would be the best evidence, and none
was introduced. Respondent points to the collective-bar-
gaining agreement between it and the Union which gives Re-
spondent the right to discharge employees without prior
warning for leaving the plant without permission of the de-
partment supervisor. Hill, however, never left the plant. This
rule is clearly not applicable as even Personnel Director
Meadows concluded when she instructed Dubose to change
the stated reason for Hill’s discharge on Hill’s official termi-
nation papers.
Respondent next points to the collective-bargaining agree-
ment which provides that a union shop steward must obtain
the permission of his supervisor before he leaves his job to
attend to union business and, if the business is in another de-
partment, must obtain the permission of the supervisor of the
other department. In support of its argument that Respondent
has a rule prohibiting employees from leaving their assigned
work areas without first obtaining permission of their super-
visors, Respondent simply argues in its posttrial brief,
‘‘While the rule with respect to union activity specifically
applies to union stewards, it certainly has no less an applica-
tion to non-stewards.’’ Respondent’s argument, while clever,
stretches both logic and reason. This contractual provision of
the collective-bargaining agreement is intended, as well as on
its face limited to, formalizing and defining certain relations
between the Union and Respondent. In fact, this contractual
provision gives the union steward a right to be granted ‘‘rea-
sonable time’’ during worktime to participate in grievance
adjustments provided the supervisor is first notified. I find
nothing in this rule which creates by implication the rule
which Respondent claims to have maintained directed to em-
ployees. If Respondent had maintained a rule directed to em-
ployees, it would have been simple to have done so, yet Re-
spondent introduced no evidence of such a rule. Contrary to
Respondent’s argument, and although such a rule might be
both reasonable and logical, I find that in fact Respondent
never maintained a formal rule providing for the discharge
of an employee who leaves his assigned work area without
first obtaining the permission of his supervisor. Evidence of
employee conduct, discussed in greater detail below, further
supports that conclusion.
In support of its argument that it maintained a rule prohib-
iting employees from leaving their assigned work areas with-
out permission of their supervisor, Respondent next points to
fact that it has discharged three employees for leaving their
assigned work area. The record reflects, however, that two
of these three discharges occurred after Hill’s discharge. That
fact alone suggests that Respondent was attempting to con-
struct a rule where none existed before. Prior to Hill’s dis-
charge, only one employee had ever been terminated for
leaving their assigned work area. The record reflects that this
was a production employee who walked away from operating
equipment to go to Respondent’s personnel office. Not only
does this one instance not establish the existence of a rule,
but the circumstances involved show that this situation was
dramatically different from Hill driving his forklift to speak
briefly to Person. Hill had no one specific work location. His
duties on the forklift took him throughout Respondent’s yard.
There is no indication that Hill left duties which interfered
with the work of other employees. As far as Hill interrupting
the work of Person, the record is clear that Hill interrupted
Person no more than 10 to 20 seconds. No only was that
interruption minimal, but the record amply demonstrates that
other employees routinely interrupted Person for far longer
periods without any action whatever being taken against
them.
Employee Carlos Hurt, who works as a tag man, testified
that he had spoken with Person inside Person’s tally booth
on 300 or 400 occasions and that he would often ‘‘sit around
and talk with him.’’ Hurt testified that prior to November
1992, he was never told that it was necessary to obtain per-
mission of a supervisor to talk to Person. Hurt testified that
in November 1992, one day shortly after Hurt had been vis-
iting Person, Supervisor Dubose approached him and told
Hurt, ‘‘don’t be going on the slips and talking and stuff no
more.’’ From Hurt’s testimony, it is quite apparent that Su-
pervisor Dubose not only knew Hurt had been visiting with
Person, but took no formal action against Hurt other than
telling him not to do it anymore.
Hurt is not the only employee who spoke with Person
while Person was working in the tally booth. Employee
Charlie Smith testified credibly that he ‘‘quite often’’ entered
Person’s tally booth and spoke with Person, even while the
line was running and Person was working. Smith testified
that in doing so, he regularly visited with Person ‘‘about two
or three minutes’’ at a time. Smith testified credibly that he
was never told it would be necessary for him to obtain per-
mission of a supervisor to speak with Person. Smith testified
that on one occasion, Dubose came to the booth while Smith
was visiting with Person and told Smith that he could not be
inside the booth. Smith, however, did not receive any dis-
cipline concerning this incident.
Any remaining doubt on this issue was put to rest by
former employee Philip Brown, who was called as a witness
by Respondent. Brown, who was working as a lumber in-
spector at the time Hill approached Person, was called to tes-
tify to describe Hill’s conversation with Person. In later testi-
mony, however, Brown testified without hesitation and alto-
gether credibly that employees frequently went to Person’s
tally booth during Person’s working time, and at times when
lumber was being graded, in order to speak with Person.
Brown testified without any equivocation that such incidents
occurred while inspectors were relaying grading information
to Person and while Person was engaged in tallying. Brown’s
testimony established that this occurred on a regular and fre-
quent basis and under circumstances where it was clear that
these employees had not made any effort to secure a super-
visor’s permission.
Based on the testimony of Hurt, Smith, and Brown, de-
scribed above, it is abundantly clear that Respondent never
maintained a formal rule requiring employees to seek permis-
sion before going and speaking to Person. An analysis of Re-
spondent’s evidence shows that it has failed to meet its bur-
den under Wright Line to establish that Hill would have been
discharged even in the absence of union or protected activity.
The evidence of disparate treatment accorded to Hill, the evi-
dence of animus on the part of Dubose toward Hill for being
willing to testify on behalf of Parker, and Dubose’s own lack
of credibility show that Respondent’s asserted reasons for
discharging Hill are no more than convenient pretext. I find
that Respondent discharged Hill because of Hill’s protected
union activity, and Respondent thereby violated Section
8(a)(1) and (3) of the Act.
1001BRUCE HARDWOOD FLOORS
2 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.
3 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 January 1,
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 281 NLRB 651 (1977).
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.’’
CONCLUSIONS OF LAW
1. The Respondent, Bruce Hardwood Floors, is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. UBC, Southern Council of Industrial Workers of Amer-
ican, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
3. Supervisor Rick Dubose threatened to fire employee
James C. Hill in retaliation for Hill’s union and concerted ac-
tivities, and Respondent thereby violated Section 8(a)(1) of
the Act.
4. Respondent discharged James C. Hill because of Hill’s
union activity, and Respondent thereby violated Section
8(a)(1) and (3) of the Act.
5. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
imitate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Bruce Hardwood Floors, Jackson, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees in retaliation for
their union and concerted activities.
(b) Discharging employees because of their protected
union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer James C. Hill immediate and full reinstatement
to his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority and other rights and privileges.
(b) Make whole James C. Hill for any loss of earnings or
other benefits he may have suffered by reason of the dis-
crimination against him by paying him a sum of money
equal to the amount he normally would have earned from the
date of said discrimination to the date of Respondent’s offer
of reinstatement, less net interim earnings, with backpay to
be computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).3
(c) Remove from its files any reference to the discharge
of James C. Hill and notify him in writing that this has been
done and that evidence of the unlawful discharge will not be
used as a basis for future personnel actions against him.
(d) 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 ana-
lyze the amount of backpay due under the terms of this
Order.
(e) Post at its Jackson, Tennessee facility copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional Director for Region 26, after
being signed by the Respondent’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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) 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 and protection
To chose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to discharge employees in retalia-
tion for their union and concerted activities.
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge employees because of their pro-
tected union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
WE WILL offer James C. Hill immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantial equivalent position, without prejudice to
his seniority and other rights and privileges.
WE WILL make whole James C. Hill for any loss of earn-
ings or benefits he may have suffered by reason of the dis-
crimination against him by paying him a sum of money
equal to the amount he normally would have earned from the
date of the discrimination to the date of our offer of rein-
statement, less net interium earnings, with appropriate inter-
est.
WE WILL remove from our files any reference to the dis-
charge of James C. Hill and notify him in writing that this
has been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel actions
against him.
BRUCE HARDWOOD FLOORS