Freeman Decorating Co.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1235 (N.L.R.B. 1988)

FREEMAN DECORATING CO. 1235
Freeman Decorating Company and Joseph Pruitt.
Case 10-CA-21374
May 31, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On November 9, 1987, Administrative Law
Judge J. Pargen Robertson issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief to the Respondent's exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings,'
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 judge's credibility lesolutions unless the clear preponderance of aU
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.
In adopting the judge's conclusion that the Respondent did not have an
honest belief that Pruitt engaged in misconduct, we find it unnecessary to
adopt the judge's reliance on the Respondent's failure to discipline Super-
visor Mike Smith.
In finding the Respondent's forcible eviction of Pruitt violated Sec.
8(a)(1), the judge stated that the Respondent did not show why Pruitt
was not asked to leave In fact, Pruitt was asked to leave by security
guard Hoopman, on express instruction of the Respondent. We clarify
the judge's finding to comport with record testimony that although Pruitt
was asked to leave the premises, Pruitt at first thought a mistake had
been made. After being informed by Hoopman that the Respondent had
ordered him to throw Pruitt out if he did not leave, and after Hoopman
denied Pruitt's request to see Dan Graveline (head of the World Con-
gress Center, where Pruitt's ejection took place), Pruitt said, "I'm gone,"
and turned to leave. At that point, he was physically removed from the
premises by security guards Bell and Hoopman Thus, although Pruitt
was asked to leave and had turned to do so, he was not allowed to leave
before he was forcibly removed by security guards Bell and Hoopman.
Further, we find it unnecessary to pass on the judge's discussion of the
duty of care the security guards owed Pruitt.
2 The Respondent excepts to the portion of the judge's remedy provid-
ing backpay for Pruitt during periods of disability and for costs of medi-
cal and rehabilitation treatment he may have incurred, arguing that the
Board is not empowered to remedy tortious acts First, we note that the
parties agreed at the bearing that whether Pruitt was disabled and the
extent of his disability, would be left to compliance. Accordingly, we
leave to compliance determinaton of Pruitt's disability, if any, and
whether backpay and medical and rehabilitative costs are due, based on
the events of June 27, 1985. Second, we observe that the Board does not
award tort remedies, but rather remedies unlawful conduct. Any recom-
pense awarded a discriminatee is not for physical injuries suffered, but
rather is a necessary remedy to vindicate the purposes of the Act. See
Graves Trucking, 246 NLRB 344 (1979), enfd. as modified 692 F 2d 470
(7th Cir 1982). This remedy, however, should not be construed as requir-
ing the Respondent to reimburse Pruitt for medical and rehabilitative ex-
penses other than those that were incurred due to lack of insurance cov-
erage resulting from Pruitt's unlawful discharge Pruitt's claim for costs
of medical and rehabilitative treatment that would not have been covered
by the Respondent's health insurance coverage (if any) is appropriately
left to other forums. See Graves Trucking, supra, at 345 and fn. 8.
conclusions, and remedy as clarified, 2 and to adopt
the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Freeman Decorating Company, Atlanta,
Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(c).
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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."
3 The judge included m his recommended Order a visitatorial clause.
Under the circumstances, we find inclusion of this provision unnecessary.
See Cherokee Marine Terminal, 287 NLRB 1080 (1988). We shall, instead,
provide the standard records preservation order
Frank F. Rox Jr., Esq., for the General Counsel.
J. Roy Weathersby and Dion Y. Kohler, Esqs. (Powell,
Goldstein, Frazer ct Murphy), for the Respondent.
Joseph W. Pruitt, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Atlanta, Georgia, on 11 and 12
June 1987. The complaint, which issued on 19 March
1987, is based on a charge filed on 29 November 1985.
Respondent admitted the commerce and jurisdictional al-
legations of the complaint. It admitted that it is a corpo-
ration with an office and place of business in Atlanta,
where it was engaged in the production and staging of
trade shows and exhibitions and the erection, mainte-
nance, and dismantling of prefabricated displays for such
exhibitions and shows. Respondent also admitted that at
material times it was an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that International Alliance Theatrical Stage Employ-
ees, Local 41 (Union) is, and has been at all times materi-
al, a labor organization within the meaning of Section
2(5) of the Act.
The contested issues involve complaint allegations that
Respondent discharged and caused physical assault
against employee Joseph Pruitt.
The record evidence shows that the Union was on
strike from 26 September 1984 to 21 June 1985. Before
the end of the strike, Respondent manned its job at the
Georgia World Congress Center in Atlanta with non-
striking employees. When the striking employees started
work, Respondent was engaged in erecting prefabricated
288 NLRB No. 139
1236

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
displays for a show at the Georgia World Congress
Center for Southern Forest Products.
Joseph Pruitt was union steward for Respondent when
the striking employees returned for the Southern Forest
Products show on 21 June 1985. During the strike, Pruitt
was chairman of the Union's negotiating committee. He
also held other union positions including vice president,
delegate to the international and district conventions, and
member and chairman of the board of trustees.
Pruitt last worked for Respondent before 26 Septem-
ber 1984. When he reported for work with Respondent
on 21 June 1985, he was local vice president in addition
to being job steward.
The General Counsel argues that Respondent opposed
use of the former striking employees after the strike and
that Respondent's union animus ultimately resulted in the
discharge and assault against Pruitt.
On 25 June 1985 Respondent's supervisor, Jack Griffis,
demanded of Pruitt that all employees submit to a tool
check a few minutes before work was scheduled to begin
at 8 a.m. Jack Griffis told Pruitt that he had replaced
Tom Perritt as general manager for Respondent. Pruitt
originally objected but then called the employees togeth-
er and instructed them to submit to the tool check. At 8
a.m. Jack Griffis announced that all the former striking
employees were discharged. According to the testimony
of Pruitt and other employees, the union employees were
replaced shortly after 8 a.m. A dispute over the dis-
charges was resolved later on the morning of 25 June,
and Pruitt and the other union employees returned to
work with no loss of pay.
Later on 25 June, Respondent asked Pruitt to send em-
ployee James Crumbley home because Crumbley went to
the bathroom on "company time." Pruitt objected and
the dispute was resolved without discharging Crumbley.
According to Pruitt, after the Crumbley dispute was
resolved, he was asked by Vice President Larry Arnau-
det to drop a pending NLRB charge. Larry Arnaudet
testified that he did not ask Pruitt to drop the NLRB
charge. According to Pruitt, he told Arnaudet that he
would recommend against dropping the NLRB charge.
Also on 25 and 26 June, Respondent through Supervi-
sor Terrell Griffis requested several quick calls through
Pruitt. Pruitt testified that Terrell Griffis told him that
requested additional employees must report within 30
minutes or Respondent would hire off the street. Pruitt
objected that 30 minutes was insufficient time.
On 26 June Pruitt was told by Jack Griffis that Pruitt's
claim of 30 minutes' pay to perform union paperwork
would be disallowed. Pruitt said he would go over Grif-
fis' head. Griffis became angry and told Pruitt, "You
better watch going over my head."
Subsequently, Pruitt was told by Supervisor Terrell
Griffis that his 30-minute claim would be allowed. Griffis
told Pruitt that he and Jack Griffis were not knowledge-
able as to the collective-bargaining agreement. Griffis
went on to say that the collective-bargaining agreement
favored the Union and that he, Jack Griffis, or one of
their I & D men should have negotiated the agreement
rather than General Manager Tom Perritt. Griffis com-
plained that the collective-bargaining agreement did not
protect the employees that worked during the strike.
Terrell Griffis then asked Pruitt to send some of his
people home. Griffis said the employees were "working
too slow." Pruitt agreed to investigate the incident and
he and Terrell Griffis walked over to a booth supervised
by Michael Smith.
The evidence to this point was undisputed except as
noted above regarding Pruitt's conversation with Larry
Arnaudet. Neither Terrell nor Jack Griffis testified. I
credit the above-mentioned testimony as to incidents in-
volving Terrell, Jack Griffis, and Joseph Pruitt.
The Pruitt-Michael Smith Incident
I credit the following testimony of Joseph Pruitt' re-
garding his encounter with Michael Smith on 26 June
1985. Pruitt's testimony was supported by testimony of
employees David Allgood, Peggy Parker, and Donald
Deaton. Michael Smith's testimony showed that he had a
poor recollection of the incident. Smith's testimony was
rambling and disjointed. Additionally, Smith's testimony
differed from that of another witness for Respondent,
Cindy Withers. Withers disagreed with all the General
Counsel's witnesses and with Respondent's witnesses Mi-
chael Smith and Robert Erwin. Erwin testified that
Withers was not present when Pruitt allegedly told
Smith that he was "going to take [Smith] out." Smith
placed himself, Pruitt, and Terrell Griffis in the heated
portion of the conversation. Moreover, unlike Smith,
Erwin and the General Counsel's witness Cindy Withers
testified that only Joseph Pruitt was angry. All the other
evidence shows that both Pruitt and Smith were angry.
Therefore, I specifically discredit the testimony of Cindy
Withers. I am convinced that Withers did not testify
truthfully. As to Erwin, his testimony was sketchy.
Erwin admitted that he was 15-16 feet away and heard
only one statement during the entire conversation.
Against that testimony, I cannot credit his testimony
over that of David Allgood, Peggy Parker, and Joseph
Pruitt. The credited testimony of Pruitt is as follows:
And so on the way over there, I asked him. I
said, "Terrell, what's the problem here." He said,
"We've got people that's working way too slow." I
said, "Well, how long have they been on the booth?
How long should the booth have taken." And he
said, "Well, it shouldn't have took four men over
two hours and they've been on the booth for two
days." So we walked over. Cindy, don't recall her
last name, came up on a little scooter and Terrell
said, "Ask Cindy, Joe." And I said, "Cindy, how
long should it have taken these people to finish the
job?" She said, "It shouldn't have taken four men
over eight hours." Mike Smith approached from the
other side and Terrell Griffis said, "Joe, ask Mike
Smith how long." So I walked over to Mike and I
said, "Mike, what's going on here? How long
1 Respondent argued that Joseph Pruitt should be discredited because
of a conflict between his testimony and an earlier deposition. That con-
flict involved whether Terrell Griffis told Pruitt or Michael Smith to
leave the area. Pruitt's explanation that the deposition incorrectly indicat-
ed Griffis told him rather than Smith to leave the area is supported by
the credited testimony of Peggy Parker Griffis did not testify.
FREEMAN DECORATING CO. 1237
should it have taken these people to work, you
know, to do this job?" And, Mike Smith said, "I
don't have anything to do with this and I'm not
going to say anything. I'm not going to say noth-
ing." And I said, "Okay." So I walked over to my
people and I asked my people. I said, "You know
they're saying you all have taken too long on this
booth. What's going on?" Peggy Parker told me
she'd just gotten on the booth. Mr. Scott, who was
on the booth, stated that he'd only gotten on the
booth 40 minutes earlier. And found out from
David Allgood that they'd been running out of
parts and that there'd been design changes and the
company's accusations just weren't true. And then
Mike Smith comes running up beside me and he
said, "I'll tell you what the problem is." Be said,
'The problem is we want the people who were in
here last week.' And I said, "You said you didn't
have anything to say about this." I said, "Just go on
over yonder." And Terrell said, "Yeah. Just go on.
You said you didn't have anything to say." And as
Mike Smith walked by me he said, "Oh, you're a
bad ass, aren't you?" And I said, "I can be." And
he said, "Well, I might like a piece of that." And I
said, "Well Mike, you can have it anywhere you
want it, inside, outside, on the docks, wherever you
want it, but you can't fire these people." And Ter-
rell told him again, "Go on, Mike. Don't say no
more." And at that time, me and Terrell walked
back over to the booth I was working on. And on
the way back over there, I told Terrell. I said,
"Terrell, I've never been involved in anything like
this on the job in my whole life." And I said, "If
you all try to get rid of me or whatever, I promise
I'll never work for you as a steward again. If I
make it through this show, there's a good possibility
I'll never work for Freeman again." And so Terrell
said, "You know, okay." So that was the last—that
was the end of that conversation.
Q. Okay. Mr. Pruitt, do you recall anything else
that Michael Smith said during this conversation?
A. Oh, yeah, I sure do. As soon as he said that
about that he might want a piece of that and I, you
know, told him inside, outside, but he couldn't fire
the people, he walked about four feet away and he
turned to me and he said, 'What's your name?'
And I spelled it for him, "P-r-u-i-t-t."
Q. Did you make any gestures?
A. Yes, sir. I spelled the first letter with a 'P' and
the rest of them I pointed for the letters.
Later that day Larry Arnaudet told Pruitt to call
Union Business Agent Ed Ringle. Ringle asked Pruitt if
they were having problems on the job. Pruitt told Ringle
that the problems had been resolved.
According to Arnaudet, he telephoned Ringle on 26
June. Arnaudet, who testified after Ringle, first testified
that he talked with Ringle, then Arnaudet testified he
thought Ringle was out of town in Las Vegas. Arnaudet
testified that he told "a person who was managing the
(Union) office at that time" that Respondent would not
accept Pruitt "on any future job calls." Cal Wilson, an
assistant manager for Respondent, testified that he called
the Union pursuant to instructions from Larry Arnaudet,
and told a union official that Respondent did not want
Pruitt to return the next day. Wilson could not identify
the union official. Wilson, like Arnaudet, admitted that
he did not tell Pruitt of the discharge.
Ed Ringle testified that he received a call on 26 June
from Respondent, which he understood to be Larry Ar-
naudet. According to Ringle, the conversation was as
follows:
Said they were having some problems. And that
they were just having problems. And I told them,
"Well, I needed to talk to my steward, which was
Joe Pruitt!' And they said, "Okay, we'll have him
call you."
Ringle testified that nothing was said about discharg-
ing Pruitt.
Larry Arnaudet admitted that neither he nor any other
agent of Respondent said anything to Joseph Pruitt about
Pruitt being discharged.
I found Ed Ringle to be a credible -witness. His testi-
mony was clear. Arnaudet, on the other hand, demon-
strated confusion whether Ringle was in the office or out
of town. I credit the testimony of Ed Ringle. I also
credit Joseph Pruitt's testimony that he was not told of
his discharge by anyone from either Respondent or the
Union on 26 June 1985. Ringle testified that he was in
the union office. I discredit both Arnaudet's and Wilson's
testimony that they told the Union that Pruitt should not
return.
Joseph Pruitt credibly testified without rebuttal that
near the close of the shift, around 4:15 p.m., 30 minutes
after Arnaudet told him to call the union hall, he was ap-
proached by Respondent's supervisor Cal Wilson:
Cal came up to me and he said, "Joe, I'm sorry
for placing my work order too late." And I said,
"That's all right. No problem." I said, "You know,
it's just when we have real large jobs." And he said,
"Okay. I'm going to need 17 people tomorrow." I
said, "17 counting me or 18 including me." He said,
"01, that's right, Joe. You'll be a non-working stew-
ard won't you." I said, "That's correct." He said,
"Well make it 18 then." And he said, "Joe, get here
plenty early. I want you here real early," And he
said, "Cause you know how Jack is."2
27 June 1985
On 27 June Pruitt reported to work. According to
, Pruitt, the following transpired:
A. Well, when I came up to work, I went to put
the paperwork—you know, do the paperwork out
for the people to sign in on. And there weren't any
chairs, so I set the paperwork on a table. And we
were right near where they stack the ladders where
2 Cal Wilson did not specifically deny that the above conversation oc-
curred Wilson did testify that he did not ask Pruitt to return on 27 June
Again, I credit Pruitt's testimony
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the people were when I pulled out a little four foot
ladder and sat on it, you know, while the people
signed in. And somebody had a question and I got
down to assist them with it. And all of a sudden,
Terrell Griffis walks over, grabs the ladder I'm sit-
ting on, slams it shut, and slams it into the wall.
Q. Now, did Mr. Griffis say anything to you at
that point in time?
A. Nothing. Absolutely nothing.
Q. Okay.
A. And shortly after that Mr. Hoopman of Sun-
belt Security came up, called me over and said,
"Can I speak with you a minute?" I said, "Sure,
what can I help you with?" And he said, "You're
going to have to leave the building." I said, "I'll get
my badge in just a minute." I said, "I just haven't
had time to get my badge. All I've got to do is just
walk over here to company." And he said, "Naw,
you don't understand. If you don't leave this build-
ing, we'll going to throw you out of here." And I
said, "But I work for the company. All we've got
to do is ask the company and they'll tell you." And
he said, "Well, they're the ones that told me to do
it." And I said, "Who did?" And he pointed at Jack
Griffis and he said, "Freeman Decorating Compa-
ny." And I said, "Robert come here." Robert Amis.
I said, "Robert, come here, I need a witness,
buddy." I said, "You don't understand." I said, "I'm
a Union steward here. I'm supposed to be work-
ing." And he said, "Well look, if you don't leave
the building right now, we're going to throw you
out." I said, "Well, can I see Dan Graveline?"
Q. Now, who's Dan Graveline.
A. He's the head of the World Congress Center.
And he said, "You're not going to see anybody.
Either you're going to leave or we're going to
throw you out right now." And I said—I threw my
arms up in the air, and I said, "I'm gone." And as I
turned to walk away, he came running up. He
didn't come running up, but he came up under me.
And he threw his left arm up under my right armpit
and he had a hold of my wrist. And immediately
after that, Jerome Bell had snuck up behind me and
grabbed me from the left side.
Q. Now, the Judge doesn't know how [sic]
Jerome Bell is, Mr. Pruitt. Who's he?
A. Jerome Bell is another security guard with
Sunbelt Security.
Q. Okay.
A. And he came running up from the left side
and he snatched me up. And as I went by my
people, I noticed they weren't looking. And I said,
"You all pay attention to what they're doing." I
said, "They can't do this by the contract." And I
don't know if it made them mad, but anyway they
started running with me. And they got faster and
faster and faster. And they jammed—Mr. Bell,
jammed his hand down in my belt, snatched up.
And as he did so, Mr. Hoopman pulled forward on
my arm, brought his arm in my armpit, and they
jammed me straight into the concrete. And then as
I hit, you know, my head hit the concrete, and it
was just a strong blow. And then they picked me
up, snatched me up, and carried me like a suitcase
to the door. And as they shoved me out the door,
immediately I heard about nine or ten people run-
ning, at me. And I remember looking around and
there were about eight or nine more security guards
coming up blocking the entrance. And they were
hollering at me, "Try and get back in, buddy. Try
and do something. Go for it. Let's see you do it."
And I Just—you know, that's pretty much what
happened.
John Hoopman, former security vice president for
Sunbelt Security testified that he and security guard
Jerome Bell were asked to remove Joseph Pruitt from
the premises by Respondent's supervisor Terrell Griffis.
Hoopman testified:
And I asked Mr. Pruitt if he'd step to one side so I
could talk to him. He did so. I told him that he'd
been requested to leave the building. Mr, Pruitt at
that time asked me—or told me that I couldn't do
that. I told him I had to. I'd been requested to. It
was my authority to. And he then asked me to ask
for Mr. Graveline. I told him that he would have to
send one of his people to get Mr. Graveline. But at
this time, he'd have to leave.
Q. Were you grabbing Mr. Pruitt?
A. No, sir.
Q. Were you touching him in any way at that
time?
A. No, sir.
Q. Were you yelling at him?
A. No, sir.
Q. All right. Then what happened next, Mr.
Hoopman?
A. Mr. Pruitt started walking with me towards
the door. At that time, Jerome Bell came up on the
other side of him, which is routine for us. We were
walking in front—I can't tell you the distance from
the service desk. But we were walking in front of
the service desk in A Hall. And Mr. Pruitt turned
and stuck out his hand and threatened Mr. Griffis,
that they had overstepped their bounds, and he'd
get them son of a bitches for that. That's when Mr.
Bell and I put our hands up under his arm. My left
hand; Mr. Bell's right hand. And was walking to-
wards the door. We walked across the carpet and
then Mr. Pruitt acted as if he'd hit the floor. We
asked him if he was all right. He didn't say any-
thing. We picked him back up. Helped him up on
his feet. Then we walked to the door and he went
outside.
Jerome Bell testified in accordance with the testimony
of John Hoopman.
Employee Peggy Parker saw Pruitt being ejected from
the building as she came in to work on 26 June:
A. When I got out of the car and shut the door, I
noticed two security guards carrying Joe out the
door. And I thought Joe was sick and they were
FREEMAN DECORATING CO. 1239
helping him out because his hair was all messed up
and he was real pale. And his feet wasn't on the
ground. So, you know, I thought they was having
to carry him out. And next thing I knew, they
turned him loose and kind of you know, threw him
forward. And Joe came down on one knee.
Q. Where was this in relation to the building?
A. Right outside A Hall door.
Q. Okay. And did you talk to Mr. Pruitt?
A. I went up and asked Joe what was wrong.
And Joe kept shaking his head. He didn't know
who I was. I had to tell him who I was.
Q. Did Joe speak to you?
A. At first, Joe didn't. He just kept looking at me
and kept shaking his head.
Q. Do you recall him saying anything to you
eventually?
A. Eventually, he—finally he said, "Peggy." And
I said, "Yes." And then he stood up again and he
acted real funny.
And then he says, "Go in and tell everybody to
come out." He says, "I need to talk to them."
Employee Robert Amos testified:
And they told him, you know, again that he was
going to have to leave the building. And I guess at
along about that time, this other fellow, Elgin Bell,
walked up. He was in the uniform with Sunbelt Se-
curity. And he said, "Do you need some help?"
And he said, "Yes." And so they grabbed Joe by
the arm. Started toward the big roll-up door over
there at the center of the building. In the front of
the service desk—
Q. Okay. How were they carrying—how were
they—
A. Each one of them had him by the arm—
Q. Were they touching him?
A. Each one of them had him by the arm and
they had him picked up so far that his feet were
barely—you know, I noticed when they were walk-
ing off, he was more or less on his tiptoes, you
know. And they started walking him towards the
door in front of the service desk there. And Jack
Griffis and his brother were sitting there at the
desk. Terrell Griffis were sitting there at the service
desk. And someone said something to me. And I
turned and looked away. And when I looked back,
Joe was laying face down on the floor. And the one
security guard jerked him up by his belt. You
know, had him by the belt and jerked him up off
the floor. And then they carried him on over by the
big roll-up door. There's exit doors, demble exit
doors that opened up. And they flung a door open
and just kind of more or less just shoved him out
the door. That's all that I witnessed until I went
outside about—I guess it was five minutes later, and
talked with Joe when the coffee truck came.
Q. Did you see Mr. Pruitt resist the guards?
A. No, sir, I didn't. Not in any way.
Employee Dale Grubbs testified:
And Joe said, you know, "Well, I have to stay here
and sign in my people." And one security guard
said that if you did not leave the—if Joe did not
leave the building, he would throw him out. And
somebody said something and I turned around. And
when I turned back around, two of the security
guards had Joe and they were escorting him out.
And they had him under each arm up so that his
elbows looked like they were higher than his ears.
And it looked like he was on his tiptoes. And they
were starting to escort him out toward the door.
And somebody said something and I turned back
around toward the table. And when I looked back
toward Joe, he was face down on the ground and
the security guards still had both arms. And then
one security guard reached back and grabbed Joe's
belt loop, snatched him up off the ground, and start-
ed escorting him to the door.
Discussion
Guard Jerome Bell denied knowledge of a civil law-
suit involving the injuries of Joseph Pruitt on 26 June.
Bell admitted, however, that he had been deposed in that
matter. John Hoopman, on the other hand, admitted
knowledge of the pending civil suit.
In view of the pending action, it is apparent that Bell
and Hoopman, and for that matter, Joseph Pruitt, may be
biased or prejudiced by their interest in that matter.
Other witnesses, however, Peggy Parker, Robert Amos,
and Dale Grubbs, testified in support of Joseph Pruitt. In
most material respects the testimony of Parker, Amos,
Grubbs, and Pruitt is in accord with that of Bell and
Hoopman. To the extent those versions disagree, howev-
er, I am convinced that Parker, Amos, and Grubbs testi-
fied truthfully. Therefore, I credit their account and
Joseph Pruitt's account of his removal from the Georgia
World Congress Center on 26 June 1985.
I specifically discredit the testimony of Hoopman and
Bell to the effect that they did not apply force to remove
Pruitt until Pruitt made a move toward Griffis and made
a threatening remark. That testimony is in conflict with
the testimony of Pruitt, Amos, and Grubbs. I find that
Pruitt was forcefully escorted from near the steward's
desk and that Pruitt did not threaten Griffis. The testi-
mony of the two guards was self-serving and conflicted
with credited testimony. The credited evidence shows
that the guards forcefully ejected Pruitt without being
provoked by Pruitt.
Findings
There is no question but that Joseph Pruitt was dis-
charged by Respondent because of Pruitt's activities in
his role as job steward. As shown by the collective-bar-
gaining agreement and Pruitt's 25 June 1985 conversation
with Supervisor Cal Wilson, Pruitt was employed as a
nonworking steward (art. IV, sec. 2, R. Exh 4). There-
fore, his duties involved nothing other than steward ac-
tivities. Those activities are union activities that are pro-
tected under Section 7 of the National Labor Relations
Act. McGuire & Hester, 268 NLRB 265 fn. 1 (1983); Or-
leans International, 274 NLRB 1127 (1985). Moreover,
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the activity that led to Pruitt's discharge involved Pru-
itt's investigation as steward of a complaint lodged by
Respondent. Pruitt was investigating Supervisor Terrell
Griffis' complaint that Michael Smith's crew was work-
ing too slow. Respondent argues that despite Pruitt's role
as a job steward, Pruitt lost protection by threatening
Supervisor Michael Smith.
When an employee is discharged because of protected
activities, the burden of proof shifts to the employer to
show an honest belief that the employee was engaged in
misconduct. Magnolia Manor Nursing Home, 284 NLRB
825 (1987); Rubin Bros. Footwear, 99 NLRB 610 (1951);
NLRB v. Burnup & Sims, 379 U.S. 21 (1964); K & K
Transportation Corp., 262 NLRB 1481 (1982). If the em-
ployer successfully proves it had an honest belief, the
burden shifts back to the General Counsel, who may pre-
vail on showing that the employee did not actually
-engage in misconduct.
I am convinced from the record evidence that Re-
spondent did not have an honest belief that Pruitt en-
gaged in misconduct. Moreover, the record shows that
Pruitt did not actually engage in misconduct.
As to the question of Respondent's honest belief, the
credited evidence shows that a high ranking supervisor,
Terrell Griffis, and Supervisor Michael Smith were
present throughout the incident that led to Pruitt's termi-
nation. The credited evidence shows that Pruitt did
nothing more than respond in kind to the remarks of Mi-
chael Smith. The evidence shows that those remarks do
not involve anything other than verbal puffery by both
Smith and Pruitt.
In rejecting Respondent's defense, I also note the sum-
mary nature of its action. The record shows that Pruitt
was discharged without a full scale investigation into the
26 June incident. Although Robert Erwin, an employee
with another company, testified at the hearing regarding
the Smith-Pruitt incident, Erwin testified that he was not
interviewed by Respondent prior to Pruitt's discharge.
Vice President Larry Amaudet testified that he decided
to discharge Pruitt. However, Arnaudet did not question
either Pruitt or any of the rank-and-file employees about
the incident.
The record shows that Respondent was actually moti-
vated by union animus to rid itself of a strong job stew-
ard. That animus was established by evidence showing
Respondent's opposition to the end of the strike and
return to work by the striking employees. Supervisors
Terrell Griffis and Michael Smith both voiced their feel-
ings against the former strikers. As shown above, Griffis
stated that the new collective-bargaining agreement did
not adequately provide for the nonstriking employees
and Smith stated that he wanted his former crew of non-
strikers returned. Moreover, Respondent's actions in con-
tinuously provoking job steward Pruitt by the tool
check, quick calls, and demands for discharges, illustrat-
ed animus. The tool check was shown to be a sham
when Jack Griffis failed to follow through with the
check at 8 a.m. when the shift was scheduled to begin.
Of prime consideration regarding the question of
honest belief is the fact that Respondent took no action
against Michael Smith. If, in fact, Respondent decided to
take action because of the heated argument between
Smith and Pruitt, then at the very least Smith should
have been disciplined to the same extent, or more so, as
Pruitt. By failing to discipline Smith, Respondent illus-
trated that its motive for discharging Pruitt did not flow
from its desire to remedy the Smith-Pruitt incident.
I find that Pruitt was not discharged because Respond-
ent had an honest belief that he engaged in misconduct
and, in fact, Pruitt did not engage in misconduct. General
Motors Corp., 233 NLRB 47 (1977). Cf. Hyatt on Union
Square, 265 NLRB 612 (1982), in which a union steward
made unprovoked threats.
The record proves that Pruitt was ejected from the
Georgia World Congress Center on 26 June 1985 by two
security guards pursuant to a request from Respondent.
The testimony of security guard John Hoopman stands
unrebutted that he was asked to remove Pruitt by Re-
spondent's supervisor Griffis. See Hudson Oxygen Ther-
apy Sales Co., 264 NLRB 61 (1982).
The credited evidence shows that security guards
Hoopman and Bell forcibly removed Pruitt from the
workplace. As Hoopman and Bell were removing Pruitt,
Pruitt either fell or was pushed onto the floor.
It is of no consequence to these proceedings whether
Hoopman and Bell intentionally injured Pruitt. It is ap-
parent that Hoopman and Bell were forcibly removing
Pruitt when he was injured. Obviously, because Pruitt
was not in control of his actions, it was Hoopman's and
Bell's responsibility to ensure that Pruitt was protected
from injury. Hoopman and Bell failed to fulfill that re-
sponsibility.
In view of the fact that Pruitt was being removed pur-
suant to Respondent's action in illegally discharging him,
it follows that Respondent violated Section 8(a)(1) by
using force to illustrate that it would not tolerate Pruitt's
actions as steward. Respondent failed to show that it had
a valid basis for requesting the security guards to remove
Pruitt. Respondent did not show why Pruitt was not told
of his discharge and it did not show why Pruitt was not
asked to leave.
I find and agree with the General Counsel that Re-
spondent by forcibly evicting Pruitt illustrated to em-
ployees its intolerance of protected activities in violation
of Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent, by forcibly removing its employee
Joseph Pruitt from the Georgia World Congress Center,
has engaged in conduct violative of Section 8(a)(1) of the
Act.
4. Respondent, by discharge of its employee Joseph
Pruitt because of Pruitt's union activities, has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
5. The heretofore said unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
FREEMAN DECORATING CO. 1241
^ v
THE REMEDY
Having found the Respondent has engaged in 'certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall order it to cease and desist there-
from and to take certain affirmative actions designed to
effectuate the policies of the Act.
Having found the Respondent has illegally discharged
employee Joseph Pruitt in violation of Section 8(a)(1)
and (3) of the Act, I shall order Respondent to offer
Pruitt immediate and full reinstatement to his former po-
sition or, if that position no longer exists, to a substantial-
ly equivalent position without prejudice to his seniority
rights or other rights and privileges and to make Joseph
Pruitt whole for any loss of earnings he suffered as a
result of the discrimination against him Backpay shall be
computed in the manner described in F. W. Woolworth
Co., 90 1s1LRB 289 (1950), with interest, as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).3
If it is shown in compliance proceedings that Joseph
Pruitt suffered loss because of injuries received in his 27
June 1985 eviction from the Georgia World Congress
Center, the remedy should include compensation in
accord with current Board practice including, for exam-
ple, if appropriate, backpay for periods of disability and
costs for medical and rehabilitation treatment.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Freeman Decorating Company, At-
lanta, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their union and other protected
concerted activities.
(b) Forcibly removing its employees from its facility
because of their union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing 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 to employee Joseph Pruitt immediate and full
reinstatement to his former jobs or, if that job no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the decision.
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 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977)
4 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.
-
(b) Remove from its files any reference to the unlawful
discharge of Joseph Pruitt on 25 June 1985 and notify
Pruitt in writing that this has been done and that the dis-
charge 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. For the purpose of determining or
securing compliance with this Order, the Board or any
of its duly authorized representatives may obtain discov-
ery from Respondent, its officers, agents, successors, or
assigns, or any other person having knowledge concern-
ing any compliance matter, in the manner provided by
the Federal Rules of Civil Procedures. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had on any matter reasonably related to compliance with
this Order, as enforced by the court.
(d) Post at its facility in Atlanta, Georgia, copies of
the attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent 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.
5 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-
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"
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 or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT assault our employees by forcibly re-
moving them from our facilities because of their activi-
ties on behalf of International Alliance Theatrical Stage
Employees, Local 41 (Union), or any other labor organi-
zation, or because of other concerted protected activities.
WE WILL NOT discharge our employees because they
engaged in activities as union steward or any other union
or protected activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Joseph Pruitt immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL notify Joseph Pruitt 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.
FREEMAN DECORATING COMPANY