Peter Vitalie Co.

National Labor Relations Board - Board Decisions

Mar 2, 1994

313 N.L.R.B. 971 (N.L.R.B. 1994)

971
313 NLRB No. 162
PETER VITALIE CO.
1 The Respondent asserts in its exceptions that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are sat-
isfied that these contentions are without merit.
2 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.
3 We shall modify the judge’s recommended Order to add the
words ‘‘and desist from,’’ and we shall substitute a new notice with
language conforming to that in the judge’s recommended Order.
Peter Vitalie Company, Inc. and Sterling Billiard
Company, Inc. and David E. Hudson. Case 11–
CA–15241
March 2, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On June 29, 1993, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Peter Vitalie Company,
Inc. and Sterling Billiard Company, Inc., Rosman,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for the first word in para-
graph 1.
‘‘1. Cease and desist from’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in concerted activi-
ties protected by the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer David E. Hudson immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against him, less any net
interim earnings, plus interest.
WE WILL notify David E. Hudson that we have re-
moved from our files any reference to his November
25, 1992 discharge and that the discharge will not be
used against him in any way.
PETER VITALIE COMPANY, INC. AND
STERLING BILLIARD COMPANY, INC.
Paris Favors Jr., Esq., for the General Counsel.
Andee Atkisson, of Rosman, North Carolina, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
discharge case. Finding that Peter Vitalie Company, Inc.
(PVC, the Company, or Vitalie) fired David E. Hudson on
November 25, 1992, because of its belief that he had insti-
gated a protected activity by employees to approach manage-
ment about obtaining the employees’ paychecks the Wednes-
day before a 4-day Thanksgiving holiday, and that PVC
failed to demonstrate that Hudson was fired for insubordina-
tion or would have been fired in any event, I order Respond-
ent PVC to reinstate Hudson and to make him whole, with
interest.
I presided at this 1-day trial on May 3, 1993, in Brevard,
North Carolina, pursuant to the January 15, 1993 complaint
and notice of hearing (complaint) issued by the General
Counsel of the National Labor Relations Board through the
Acting Regional Director for Region 11. The complaint is
based on a charge filed in Case 11–CA–15241 by David E.
Hudson, an individual (Hudson or Charging Party), on De-
cember 4, 1992, against Peter Vitalie Company, Inc. and
Sterling Billiard Company, Inc. (Sterling). I, generally, shall
refer to Vitalie and Sterling collectively as Respondent,
Company, or PVC.
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless I indicate otherwise, all dates are for 1992.
2 References to the one-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for Respondent’s.
In the Government’s complaint, the General Counsel al-
leges that Vitalie and Sterling are a single-integrated em-
ployer and that Respondent PVC violated Section 8(a)(1) of
the Act by firing Hudson (employed by Vitalie) on Novem-
ber 25, 1992. Admitting certain facts, including the Novem-
ber 25 discharge of Hudson, PVC denies violating the Act.
PVC defends on the basis that Company’s president, Gilbert
Atkisson, fired Hudson as a spontaneous response when
Hudson was insubordinate to Atkisson on the plant floor.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Vitalie and Sterling each is a North Carolina corporation
operating a factory in Rosman, North Carolina, where each
manufactures billiard, pool, and snooker tables. During the
past 12 months Vitalie and Sterling each shipped goods val-
ued at $50,000 or more directly to points outside North
Carolina. In its March 29, 1993 decision the Board, affirming
the decision of Administrative Law Judge William N. Cates,
found ‘‘that Vitalie and Sterling collectively constitute a sin-
gle-integrated business enterprise and a single employer
within the meaning of the Act.’’ Peter Vitalie Co., 310
NLRB 865, 865 (1993).
In the instant case the parties stipulated (1:16) that the
facts respecting Vitalie and Sterling were the same or sub-
stantially the same as existed at the time of the hearing be-
fore Judge Cates.2 I find that, as alleged, Vitalie and Sterling
constitute a single-integrated business enterprise and a single
employer. I further find that Vitalie and Sterling, individually
and collectively, are an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Work Force and Witnesses
Although Vitalie and Sterling may have been combined
into one company as of the first of 1993 (1:8, 113), in No-
vember 1992 the two companies were separately incor-
porated firms. That fact has little relevance at this stage, but
it assists in understanding the testimony when witnesses refer
to the Vitalie side or the Sterling side of the factory. No wall
separated the two sides in November, and the division was
by an imaginary line which followed some support beams.
(1:33.) In November Vitalie and Sterling had a combined
total of about 30 employees, with something over half of
those working on the Vitalie side. (1:22, 28–29.)
The pleadings establish that Gilbert L. Atkisson is PVC’s
president and that David Robinson is vice president, manu-
facturing. Ricky Chapman is one of the supervisors reporting
to Robinson. (1:22, 157.) Stephen Edwards apparently serves
as the leadperson over the carving and turning departments
where Hudson worked. (1:157, 207.) Even so, it appears that
Edwards never exercised jurisdiction over Hudson because
Robinson told Edwards that Hudson was doing just fine on
the turning lathe and needed no training. (1:208, 217.) Hud-
son operated a lathe (1:21) in the turning department (1:47),
and primarily was supervised by David Robinson. (1:22.)
President Atkisson acknowledges that Hudson is a very tal-
ented person whose work, as distinguished from his conduct
as an employee, was of excellent quality. (1:164, 176–177.)
Although a single shift operates the plant from 7 a.m. to
3:30 p.m., Hudson worked a 7-hour shift from 8 a.m. to 3:30
p.m. on a special arrangement with PVC. (1:24–25, 72–73,
76.) Hudson was one of the most senior and highest paid of
PVC’s employees. (1:22–23, 84, 171–172.) The employees
have a morning break of 15 minutes beginning at 9 a.m.
(1:181.) The lunch period is for 30 minutes, from 11 to
11:30 a.m. (1:28, 111, 117.) A buzzer sounds twice at the
end of the lunch period, once at 11:29 a.m. and a second
time at 11:30 a.m. (1:182.) The area near Brevard consists
of small towns. About a quarter of the work force goes home
for lunch. (1:77.) Hudson is one of those who do. (1:29.)
When leaving for lunch, employees do not have to clock out.
(1:38.)
The General Counsel called Charging Party Hudson and
cutting department employees (Larry) Dwayne Morgan and
Al Christopher Galloway, and rested. (1:149.) (Appearing in
response to subpoenas from the General Counsel, Morgan
and Galloway gave no pretrial affidavits and declined to
meet with the General Counsel in preparation for the trial,
although they did meet with Andee Atkisson.) (1:121, 144.)
PVC then moved for dismissal on the basis that the General
Counsel had failed to show that protected activity was a mo-
tivating reason in Hudson’s discharge. (1:149.) After the par-
ties argued their positions, I denied Respondent’s motion.
(1:152–153.)
I then informed Respondent’s representative, Executive
Vice President Andee Atkisson, that PVC could rest on its
motion at that point or proceed. I stated that if PVC pro-
ceeded with its case-in-chief, then, under my understanding
of the law, PVC would be deemed to have waived its motion
to dismiss, and in reaching my decision I would consider not
simply the evidence as of PVC’s motion, but the entire
record. (1:153.) Greco & Haines Inc., 306 NLRB 634
(1992); Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); Reed v. State, 794 S.W.2d 806, 809 (Tex.
Crim. App. 1990). The sufficiency of a prima facie case is
tested by resting on a motion to dismiss. See, for example,
American Bakeries Co., 280 NLRB 1373, 1374 (1986).
For a time the Board ruled that, in assessing whether the
General Counsel had established a prima facie case, only the
General Counsel’s evidence would be considered. This line
of cases began with Hillside Bus Corp., 262 NLRB 1254
(1982). Under Hillside Bus, apparently, even an admission by
the respondent during the respondent’s case-in-chief would
not be available to help establish the General Counsel’s
prima facie case. The Board silently overruled the Hillside
Bus line of cases in Golden Flake Snack Foods, 297 NLRB
594, 595 fn. 2 (1990). Electronic Data Systems Corp., 305
NLRB 219, 262 (1991).
Recently, the Sixth Circuit stated what appears to be the
equivalent of the Board’s old Hillside Bus rule. NLRB v.
Vemco, 989 F.2d 1468, 1479 footnote 12 (6th Cir. 1993). I
respectfully suggest that the Sixth Circuit’s statement in
973PETER VITALIE CO.
3 ‘‘Their cursing is painful to hear. Sir.’’ (27:15.)
Vemco’s fn. 12 does not express the correct procedural rule.
Postal Service Board of Governors v. Aikens, supra.
B. David Hudson Fired November 25, 1992
1. Events outside the office door
To add Friday, November 27, to the Thanksgiving holiday
and to therefore have a 4-day holiday weekend, PVC’s em-
ployees voluntarily worked the previous Saturday. (1:115,
119, 134.) Paydays are every other Friday. (1:24; GCX 9 at
2.) That Friday was a payday. Initially employees understood
they could come in that Friday and receive their paychecks.
(1:90.) However, the morning of Wednesday, November 25,
word circulated among employees that paychecks would not
be distributed until the following Monday. Employees spoke
with the supervisors. Leadperson Stephen Edwards testified
that Hudson and several other employees asked him to talk
with the supervisors about the problem. Edwards spoke to
David Robinson and Ricky Edwards and reported the em-
ployees’ concern. They told Edwards that they had already
checked with the office and determined that the checks
would not be issued until the following Monday. Edwards re-
ported this to Hudson and the others, suggesting that they
drop the matter. This was before the 9 a.m. break. (1:210,
214, 215.) Atkisson confirms that sometime that morning
David Robinson reported to him that the employees were
asking if they could receive their paychecks that day. After
conferring with other management, Atkisson told Robinson
that paychecks would be distributed on Monday if the em-
ployees took Friday as a holiday. (1:183.)
The employees did not drop the matter. At the morning
break they discussed the matter and many decided to ap-
proach the Atkissons and Robinson on the subject at lunch-
time. Shortly before lunch they decided to make the ap-
proach at the end of the lunch period. (1:27–28.) (Larry)
Dwayne Morgan also was active in coordinating with other
employees about going to the office at lunchtime. (1:116,
135.)
Shortly before the lunch period ended, Hudson arrived
back at the plant. There is some dispute about the exact time
and whether the employees gathered during the lunch period
or on PVC’s time. I hesitate to resolve that dispute, for it
is immaterial whether the employees gathered on their time
or PVC’s time to confer with management over their desire
to receive their paychecks that Wednesday rather than the
following Monday. Also, I need not address the evidence
concerning whether PVC actually had a policy or past prac-
tice that covered the situation of a day off for everyone on
a Friday payday. (I note that the evidence is mixed concern-
ing this matter.)
When Hudson returned from lunch toward the end of the
lunch period and entered the plant, he learned that several
employees had decided not to go through with the plan be-
cause Atkisson was in a ‘‘foul’’ mood. (1:29–30, 88.) When
Atkisson is in a bad mood, Hudson testified, he curses with
more profanity than usual. (1:110.) Atkisson concedes that he
occasionally curses, and even ‘‘swears’’ or ‘‘takes the Lord’s
name in vain’’ ‘‘quite often.’’ (1:161–163.)3 According to
Atkisson, however, he does so at a situation and never at an
employee. He strives not to use ‘‘a certain four-letter word’’
in front of females. (1:162–163.)
After hearing the ‘‘foul’’ mood news and proceeding on
into the plant, Hudson saw a group near the office door.
Some in the group also said Atkisson was in a bad mood.
About that time, around 11:25 or 11:26 a.m., Dwayne Mor-
gan, Christopher Galloway, and others walked up. All were
standing a few feet from the office door. Around the time
of the first buzzer at 11:29 a.m., Hudson told the approxi-
mately seven or eight employees that there were not enough
employees present to execute the plan. Suggesting that they
go to their work areas and talk later with Robinson, Hudson
turned and started walking into the plant. (1:30–32.)
At about that moment the 11:30 a.m. buzzer sounded and
President Atkisson opened the office door and walked out.
(1:31, 93–94, 96.) Atkisson reports that by habit he
‘‘squirts’’ through the door into the plant ‘‘the minute we go
back to work or within a few minutes.’’ He places the time
here as about 11:35 to 11:40 a.m. (1:155, 182.) Dwayne
Morgan places the time as about 11:45 a.m. (1:117, 135.)
Consistent with Hudson’s description, I find that Atkisson
walked through the door as the second buzzer sounded at
11:30 a.m.
Although I find the time as just described, I digress for a
moment to summarize a point in Atkisson’s testimony. Ac-
cording to Atkisson, on this occasion he was in the office
when, about 11:35 a.m., he observed, through the office win-
dow, David Hudson drive up, ‘‘late as usual.’’ (1:154.) By
‘‘as usual,’’ Atkisson explains that he has watched Hudson
return late from lunch almost on a daily basis for 4 to 5
years. Although he never personally spoke to Hudson about
his tardiness, the supervisors did, Atkisson asserts. Moreover,
Hudson’s personnel file has seven or eight citations in it,
Hudson talks constantly with other employees, and twice that
very morning Atkisson had observed Hudson speaking with
groups of employees. In fact, 2 years earlier Atkisson had
wanted to fire Hudson over his tardiness from lunch, but
Robinson dissuaded him from doing so. (1:156, 165–167,
178–179.)
When Atkisson walked through the door and into the
plant, he testified his intention was merely ‘‘to cite’’ Hudson
for being late from lunch, not to fire him. (1:156, 168–169,
194, 195.) Depending on when he was asked at trial,
Atkisson testified that he carried with him (1) a written
warning form completed as to tardiness from lunch (1:156)
or (2) a blank form which he filled out that day immediately
after he fired Hudson (1:173.) In a moment I shall describe
the termination form (GCX 2) which is in evidence. As the
form reflects on its face (GCX 2), and as Hudson testified
(1:47), Hudson’s copy was mailed to him.
Resuming my description, I note that as Atkisson walked
out he raised his voice. Hudson, looking back, observed
Atkisson pointing at Morgan and Galloway and toward the
exit door. Hudson proceeded to the cutting department to cut
some lumber. (1:32–32, 37, 96–97.) Although there are some
mostly immaterial differences in the testimony of Morgan,
Galloway, and Atkisson, Atkisson acknowledges that when
he came out he saw a group which included Hudson, Mor-
gan, Galloway, and others. The group dispersed immediately
when he appeared. Atkisson followed Morgan and Galloway.
Catching up with them about 20 feet later, Atkisson asked
them what was going on. Morgan said they were concerned
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 ‘‘If one man prays and another curses, whose voice will the
Lord hear? Sir.’’ (34:24.)
about getting their paychecks that Wednesday before Thanks-
giving. Atkisson explained that it was company policy to pay
on Monday following a Friday holiday. Atkisson told them
they were free to return to work or ‘‘go to the house.’’
(1:155–156, 184–185.) ‘‘Go to the house’’ is an idiom mean-
ing, Atkisson testified, that the person is fired. (1:192.) Ac-
cording to Galloway, Atkisson did not seem upset with them
personally, but was upset about rumors in the plant. (1:144.)
Rather more emphatic, Morgan asserts (1:120): ‘‘Yeah, he
was upset. I ain’t going to lie to you. He was mad.’’
Atkisson denies that anyone told him that the group of em-
ployees outside the office door had gathered to see him about
the paychecks. (1:182–183.) Even so, Atkisson admits that
earlier that morning Vice President David Robinson had re-
ported that about a dozen employees had asked whether the
employees were to receive their paychecks that day. (1:183.)
After he explained the policy to Morgan and Galloway,
Atkisson testified, he assumed he would have to repeat that
explanation to Hudson. (1:169, 183.)
2. Atkisson confronts Hudson
Hudson testified that he was picking up a board for cutting
when Atkisson walked up. Hudson could see that Atkisson
was angry. Although Hudson’s description is a bit disjointed,
his version is substantially as follows, with ‘‘H’’ being Hud-
son and ‘‘A’’ being Atkisson (1:33–34, 41–43, 97–103):
ATKISSON: David, I ought to fire you. You’re start-
ing trouble again.
HUDSON: How am I causing trouble?
A: The employees are banding together demanding
their paychecks.
H: Well, Gil, we were just wanting a good expla-
nation as to why we couldn’t receive our paychecks.
We’re just wanting our paychecks to where we can pay
bills and have Thanksgiving dinner. That’s all we were
wanting. We weren’t trying to stir up no trouble. We
were just wanting a fair explanation because one wasn’t
given to nobody.
A: Well, I ought to just fire you.
H: Well, that’s up to you.
A: All right, you’re fired. Get out the goddamn door
(pointing to the exit door).
H: Well, if you don’t mind, I’d rather have David
Robinson or Ricky Chapman tell me this. If you will
have Ricky Chapman or David Robinson come tell me,
I’ll accept it.
A: You dumb sonofabitches don’t listen to a thing I
say. I own the plant and I own them and I’ll do as I
damn well please.
At that point Atkisson took a couple of steps toward Hud-
son who, thinking Atkisson was about to hit him, balled up
his fists. Atkisson stepped back, and Hudson lowered his
hands. Atkisson then told Hudson, ‘‘You’re fired. Get out the
damn door now.’’ (1:34–35, 100–101.) That ended the inci-
dent, and after telling his coworkers goodbye Hudson left the
plant.4
At trial Hudson explained that he referred to Robinson and
Chapman because at a company meeting some months earlier
Atkisson had told employees that he never fired anyone or
laid them off but left that up to his supervisors. (1:43–44,
100.) Atkisson denies saying that at any meeting, and asserts
that as a general rule he leaves such matters to his super-
visors, but he does not exclude himself from ever exercising
that responsibility. (1:189.)
According to Atkisson, he began the conversation with
Hudson by saying that he was tired of seeing him ‘‘in a pile
of people’’ all day. Atkisson asked what Hudson’s problem
was. Hudson replied that Atkisson was not treating the peo-
ple right, that ‘‘some of us need our money for Thanksgiving
and to pay bills.’’ Atkisson proceeded to explain that the
Company pays on Monday after a Friday holiday. Not sure
of what other words were exchanged, Atkisson asserts he
then told Hudson that if he was not happy he was free to
leave. Hudson said that the only persons who could ask him
to leave the plant are David Robinson and Ricky Chapman.
‘‘Excuse me,’’ Atkisson said, ‘‘You’re fired right now.
Leave the building.’’ That ended the incident.
Atkisson testified that when Hudson said only Robinson or
Chapman could fire him, Atkisson considered Hudson’s
statement to be belligerent, argumentative, and insubordinate.
‘‘What he was telling me is as the president of the company,
I had no right to fire him is what he was telling me in my
opinion.’’ (1:191–192.) ‘‘Free to leave’’ is the same as ‘‘free
to go to the house,’’ which means ‘‘You’re fired.’’ (1:192.)
Atkisson testified, and wrote in a pretrial affidavit, that when
he told Hudson he was free to go (meaning fired), Hudson
said that ‘‘only Ricky and David can fire me.’’ At that point
Atkisson flatly said, ‘‘You’re fired.’’ (1:157–159, 167–170,
189–193.)
Although Atkisson concedes that his stance probably be-
came threatening after Hudson said Atkisson could not ask
him to leave the building, he asserts that he never observed
Hudson make a fist. Although Atkisson denies walking up
close to Hudson, he concedes that he was about a foot from
him because of the noise in the area. (1:159, 161, 194.) Al-
though other employees were in the general area, they were
too far away, in Atkisson’s opinion, to overhear anything
that was said. (1:158.)
3. The termination notice and related matters
As I noted earlier, PVC later mailed a copy of the termi-
nation report to David Hudson. Although the form appears
to cite three reasons for discharging Hudson, throughout this
case, from its answer forward, PVC asserts that Hudson was
fired for one reason only: insubordination. Thus as I have
summarized, Atkisson clearly states that when he approached
Hudson after lunch he intended only to cite him for tardi-
ness, not to fire him. The discharge, according to Atkisson,
was a spontaneous response to Hudson’s insubordination of,
in Atkisson’s view, challenging his authority. Indeed,
Atkisson testified (1:170, 193–194) that the discharge was a
surprise to both Hudson and him. When the General Counsel
at trial expressed his understanding that PVC was defending
on the basis that past warnings were also a basis for the dis-
charge, Respondent’s representative, Andee Atkisson, stated
(1:200): ‘‘No, sir. Where did you get that impression? These
are your exhibits, not mine. He was fired for insubordina-
tion.’’
975PETER VITALIE CO.
Arguably the abandoned reasons on the termination report
could be considered a shifting of purported grounds. I need
not pause to find whether shifting occurred. Even so, I brief-
ly shall mention the termination report and other alleged re-
ports.
Looking first at the termination report (GCX 2), I note that
Atkisson has checked three ‘‘violation’’ boxes: attitude, in-
subordination, and tardiness. Although the ‘‘Other’’ box is
not checked, Atkisson wrote on the lines provided by it,
‘‘Considered factory rumor spreader.’’ Under a section re-
served for the company’s statement, Atkisson wrote: ‘‘David
Hudson has been a prime force in keeping factory in constant
turmoil. Constantly late from lunch.’’ Because Hudson was
not interviewed in relation to the form, the section for the
employee’s position is blank. Finally, under the space for ac-
tion to be taken, Atkisson wrote, ‘‘Employee terminated.’’
On cross-examination Atkisson could not give a specific
rumor for the ‘‘rumor spreader’’ tag he placed on Hudson,
and admitted that he added that statement ‘‘without a specific
rumor’’ in mind. Nevertheless, rumors by Hudson were a
constant problem which kept the plant in constant turmoil,
and that all this stopped when Hudson left. (1:175–176).
Atkisson does not address whether any ‘‘turmoil’’ stopped
after Hudson’s discharge out of fear by employees of receiv-
ing the same punishment.
In evidence are six other warning notices respecting Hud-
son. They are for either tardiness or talking ranging in dates
from March 10 (GCX 3) to October 8, 1992 (GCX 8). One
(GCX 7), for arriving 10 minutes late from lunch on Septem-
ber 24, 1992, is signed by Atkisson who wrote that he ob-
served the tardiness, and that ‘‘David Robinson says he
[Hudson] comes back late at least 3 times a week.’’ Robin-
son did not testify, and Atkisson concedes that he did not
discuss the matter with Hudson. (1:196.) None is signed by
Hudson, who testified that he received only one (GCX 3), for
talking instead of working on March 10, and was not
‘‘jumped on’’ or spoken to about the others. (1:58, 64, 77,
81.)
I need not resolve this. Probably both parties are correct
here. Although Hudson was shown only one warning, the
other reports were prepared and placed in Hudson’s person-
nel file but never shown to him. Moreover, whatever com-
ment was made to Hudson was too light to be recognized by
him even as a caution. Hudson, who concedes that he was
tardy once or twice, testified that he offered to work late to
make up for it, but Robinson told him not to worry about
it. (1:38, 60.) There are timecards in evidence on the matter
because employees do not clock out at lunch. (1:38.) On one
occasion at a plant meeting Robinson told all employees not
to be tardy when returning from lunch. (1:61.) Indeed, PVC’s
employee handbook then in effect states (GCX 9 at 1): ‘‘Tar-
diness will not be tolerated . . . . Habitual tardiness . . .
will result in termination.’’ PVC’s own documents reflect
that Respondent never felt concerned enough about tardiness
to confront Hudson about the matter and have him sign his
receipt for a written warning. Moreover, none of the disputed
warnings says anything about spreading rumors.
I further note Hudson’s testimony that when Atkisson con-
fronted him on November 25, Atkisson never mentioned any-
thing about tardiness. (1:99.) Indeed, Atkisson’s own version
reflects that nothing was said about tardiness. Atkisson con-
cedes that when he approached Hudson he referred to Hud-
son’s having been in a ‘‘pile’’ of people all day, asked what
the problem was, and was told about the paychecks.
C. Discussion
1. Governing law
When employees join to present a grievance concerning
wages, hours, or working conditions to their employer, their
action is concerted. Transpac Fiber Optics, 305 NLRB 974
(1991). Unless the concerted action is shown to have been
conducted in an abusive manner or purpose, it is protected
under Section 7 of the Act. Delta Health Center, 310 NLRB
26, 43 (1993). The employer must have known, or believed,
that the action was part of group action or on behalf of a
group of employees. Manimark Corp., 307 NLRB 1059
(1992). When such concerted protected activity is a moving
reason for an employer’s discipline imposed on an employee,
then that adverse action violates Section 8(a)(1) of the Act
unless the employer, as an affirmative defense, demonstrates
that it would have taken the same action notwithstanding the
protected activity. Manimark Corp., supra.
2. Credibility resolved; conclusions stated
Generally, I credit David Hudson over all witnesses, in-
cluding, where conflicts exist, the two other witnesses called
by the General Counsel, Dwayne Morgan and Christopher
Galloway. Although Hudson may have hedged on the num-
ber of times he has been tardy returning from lunch, he gen-
erally testified persuasively. By contrast, Morgan and Gallo-
way, who failed to meet with the General Counsel before the
trial, but who did confer with PVC’s trial representative,
struck me as testifying in a manner which they perceived
would please their employer.
I have barely mentioned Stephen Edwards or his testi-
mony. The only testimony of Edwards which I credit is that
which is consistent with the other credited evidence. Edwards
devoted most of his testimony describing supposed short-
comings of Hudson while praising his own efforts on behalf
of PVC. I find that Edwards formed his testimony for the
purpose of currying favor with the owners of his employer.
I generally do not believe Edwards.
Turning now to President Gilbert Atkisson, I note that not
all of his testimony is inconsistent with that of Hudson’s. To
the extent it is inconsistent, I do not credit Atkisson. No
doubt Atkisson did see Hudson drive by on his return from
lunch. That time, I find, would have been just a few minutes
before 11:30 a.m. Hudson was making a special effort that
day to return before the end of the lunch period and was not
late. (1:62, 87.) Atkisson was angry, but his anger, I find,
was caused not by any tardiness on Hudson’s part (because
Hudson was not late), but by Atkisson’s belief that Hudson
was responsible for stirring up the employees to press for
their payroll checks that day, Wednesday, rather than waiting
until the following Monday.
Atkisson suggests that his version of the confrontation
with Hudson is correct because he did not fire Dwayne Mor-
gan. (1:172.) But Atkisson did not fire Morgan because, I
find, Morgan was not, in Atkisson’s view, the instigator.
Thus, Atkisson went looking for the presumed instigator. On
finding Hudson, Atkisson’s unlawful animus spilled out in
the expression that he ought to fire Hudson for starting trou-
ble again. When Hudson asked what trouble, Atkisson clear-
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.
ly described the cause of his anger—the employees were
‘‘banding together demanding their paychecks.’’ Even under
his own version, Atkisson places the group concern, and
Hudson’s participation in it, at the heart of why Atkisson
was confronting Hudson. However, I find that the correct
version is the one given by Hudson.
I find that employees, and possibly more than a single
group of employees, were concerned when they learned they
would not receive their paychecks until the Monday after
Thanksgiving. They decided the morning of November 25 to
approach the Atkissons that day at the end of the lunch pe-
riod and seek a solution to the problem. David Hudson was
part of the group discussion. President Atkisson admits that
he was told that a dozen or so employees that morning had
expressed this concern to Vice President David Robinson.
Atkisson denies that when he walked forth from the office
to enter the plant at the 11:30 a.m. buzzer that he was aware
the group had gathered for the purpose of discussing this
concern with him. Not crediting Atkisson’s denial, I find that
he either knew or immediately suspected that such was the
purpose of the group. In any event, Atkisson concedes that
he immediately learned from Dwayne Morgan that such was
the concern. From there Atkisson went to hunt down David
Hudson.
On locating Hudson, Atkisson’s remarks, as I have found,
demonstrate that Atkisson (1) knew the employees had band-
ed together over the paycheck issue and that (2) he blamed
David Hudson for stirring up the employee concern over the
matter. In the exchange which followed, Atkisson, obviously
teetering on the brink of discharging Hudson, and after twice
saying he ought to fire Hudson, did just that when Hudson
finally said that such an action was up to Atkisson.
In so discharging David Hudson, I find that President
Atkisson was motivated by Hudson’s perceived leadership
role in the protected concerted activity of PVC’s employees.
I disbelieve Atkisson’s suggestion (1:172–173) that the pay-
check matter played no part in his decision to discharge
David Hudson. Atkisson’s assertion (1:172) that none of the
others involved were fired merely reinforces Hudson’s cred-
ited version that Atkisson held Hudson responsible for the
employees’ group activity. Finally, I find that Respondent
failed to demonstrate that it would have fired David Hudson
regardless of any protected activities by Hudson. Con-
sequently, I find that, as alleged, Respondent PVC violated
Section 8(a)(1) of the Act when it fired David Hudson the
morning of November 25, 1992.
CONCLUSION OF LAW
By discharging David Hudson the morning of November
25, 1992, Respondent PVC has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily discharged an employee, the Re-
spondent it must offer reinstatement and make the employee
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Nothing in David Hudson’s conduct would bar his rein-
statement. His request that Atkisson have either Vice Presi-
dent David Robinson or Supervisor Ricky Chapman advise
him of his discharge was nothing more than a misinterpreta-
tion of statements made at a company meeting a few months
earlier. Hudson’s request can be considered nothing more
than a minor impropriety occurring after he had been fired
unlawfully. Hudson’s request must be assessed in light of the
unlawful conduct which provoked it. When so compared,
Hudson’s response falls far short of the opprobrious conduct
necessary to forfeit his right to reinstatement. Similarly,
when Hudson balled up his fists (an action Atkisson admit-
tedly never observed), it was an instinctive, defensive, and
temporary reaction to Atkisson’s own movement toward him.
Assuming a posture of self-defense in response to assaulting
movement does not disqualify Hudson for reinstatement.
Although this case is the second finding of an unlawful
motivation violation by the Respondent, the General Counsel
does not seek a broad remedial order, and I shall not provide
one.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Peter Vitalie Company, Inc. and Sterling
Billiard Company, Inc., Rosman, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for engaging in concerted activities protected by
the National Labor Relations Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer David E. Hudson immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to senior-
ity or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify David E. Hudson in writing that this has
been done and that his discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
977PETER VITALIE CO.
6 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 reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its plant in Rosman, North Carolina, copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable 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 Respondent has
taken to comply.