Quality Pallet Systems, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1988

287 N.L.R.B. 1192 (N.L.R.B. 1988)

1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Quality Pallet Systems, Inc. and James Brooks,
Lonzy Gates, and Frederick Bronner . Cases 10-
CA-22261-1, 10-CA-22261-2, and 10-CA-
22261-3
16 February 1988
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On 1 June 1987 Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The
Respondent filed exceptions and a brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions,3 to modify the remedy,4 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Quality
Pallet Systems, Inc., Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i The Respondent has requested oral argument The request is denied
as the record, exceptions, and brief adequately present the issues and the
positions of the parties
2 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 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
3 We agree with the judge's conclusion that on 14 January 1987 the
Respondent discharged the alleged discriminatees Respondent's owner,
Irby, during a discussion with the employees about the reduction in the
piece rate, instructed the employees to "hit the clock " Clearly, Irby in-
tended to fire the employees and did so The employees were not given
an option of returning to work and accepting the reduced piece rate
amounts or of being fired Thus, this case is distinguishable from Carriage
Ford, 272 NLRB 318 (1984), enfd sub nom Morrison v NLRB, 772 F 2d
283 (6th Cir 1985), relied on by the Respondent There, inasmuch as the
employees were given an option to either abide by certain work rules or
leave, the Board concluded that the employees who left had voluntarily
quit
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
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 on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
W. Gene Heard, Esq., for the General Counsel.
Harold A Miller III, Esq., of Decatur, Georgia, for the
Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN, Administrative Law Judge.
This case was heard before me at Atlanta, Georgia, on
25-26 March 1987,1 pursuant to a consolidated complaint
filed by the Regional Director for Region 10, of the Na-
tional Labor Relations Board on 23 February 1987. The
complaint alleges that about 14 January 1987, Quality
Pallet Systems, Inc. (the Respondent) violated Section
8(a)(1) of the National Labor Relations Act by its dis-
charge of its employees, James Brooks, Lonzy Gates,
and Frederick Bronner, because of their engagement in
concerted activities. The complaint is joined by the Re-
spondent's answer, as amended at the hearing, in which
Respondent denies the commission of the alleged viola-
tions of the Act and contends that the aforementioned
employees voluntarily quit their employment and were
not discharged for engaging in protected activities and in
the alternative that if the employees are found to have
been discharged by Respondent, such discharges were
for good cause.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following
FINDINGS OF FACT
I JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent is, and has been at all times material, a
Georgia corporation with an office and place of business
located at Atlanta, Georgia, where it is engaged in the
business of repairing and manufacturing wooden pallets,
that during the past calendar year prior to the filing of
the complaint, Respondent derived gross revenues in
excess of $500,000, and, during the same period of time,
provided services valued in excess of $50,000 within the
State of Georgia to Clorox Company, that Clorox Com-
pany is a Delaware corporation with an office and place
of business in Forest Park, Georgia, where it is engaged
in the business of manufacturing household cleaning
products, that during the past calendar year prior to the
filing of the complaint, Clorox Company has sold and
shipped from its Forest Park, Georgia facility products
valued in excess of $50,000 directly to customers located
outside the State of Georgia, and that Respondent is, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Brooks, Gates, and Bronner were all employed as
pallet makers by Respondent at its facility in Atlanta,
Georgia. On Friday, 9 January, the alleged discrimina-
tees and several other employees received their pay-
checks that reflected a reduction in pay. Respondent's
foreman, Walter Howard, advised them he was unaware
of the reason for the lesser amounts of pay Respondent's
All dates are in 1987 unless otherwise stated
287 NLRB No. 123
QUALITY PALLET SYSTEMS 1193
bookkeeper, Pauline Boucher, who had made out their
paychecks told them the reduction in pay had been or-
dered by Respondent' s plant manager , Ben Irby, effec-
tive that date and gave them each a sheet of paper set-
ting out agreement to the reduction in pay that she asked
the employees to sign The employees were upset with
the reduction and did not sign Irby had been out of the
building and after quitting time that day he was ap-
proached by employees Gates, Brooks, Bronner, Satter-
white, and Taylor, who inquired about the changes. A
total of seven employees, who were employed as pallet
makers or repairers, were affected by the reduction.
These employees make wooden pallets and are paid on a
piece rate basis for each pallet made or repaired The
seven employees affected were James Brooks, Lonzy
Gates, Frederick Bronner, Kenneth - Satterwhite, Eddie
Taylor, and two Laotion employees, Khamchan Vonsen-
devane and Tia Kenvongsa Irby confirmed that there
was to be a reduction in the amount the employees
would be paid per pallet on the piece rate basis, under
which their wages were determined. However, Irby told
the employees that the bookkeeper, Boucher, had been
premature in issuing them reduced checks, as the change
was not to go into effect, until next week and that he
would correct the discrepancy next week. On Monday,
12 January, Irby met with the pallet makers in a brief
early morning meeting Employee Brooks left shortly
after the start of the meeting for an appointment and did
not return until the next day. At the meeting Irby told
the employees it was unnecessary to reduce their wages
as a result of a decrease in Respondent's profits, but that
he would review the decision again in 30 days. The
meeting ended and the employees went to work Ac-
cording to the testimony of Irby, the employees indicat-
ed their agreement with the reduction that he changed
from an overall reduction to a reduction for pallet-type
numbers two and three from 40-cents to 35-cents per
pallet and told the employees he would review the situa-
tion in 30 days. According to the testimony of Gates and
Bronner some employees indicated their willingness to
work for the reduced wages but others did not Taylor
testified that he agreed to the changes as did the two La-
otian employees.
On Tuesday, Brooks returned to work and inquired of
the other employees about what had happened at the
meeting On being told, he discussed the matter with the
other employees and urged them to ask for another
meeting. On Wednesday morning, 14 January, Brooks
and pallet workers Gates, Bronner, Satterwhite, and the
two Laotian employees met with Irby Laotian employee
Vonsendevane speaks halting, limited English whereas
Laotian employee Kenvongsa speaks no English. At the
meeting the employees indicated their dissatisfaction
with the reduction in wages. According to the testimony
of Brooks, Bronner, and Gates, Brooks and the other em-
ployees attempted by persuasive arguments to convince
Irby of the unfairness of the reduction in rates and Irby
became visibly angry and initially told Brooks and then
all of the employees to "hit the clock" meaning to punch'
out their timecards and leave Gates testified Irby told
Brooks, "You're not going to come here and change
anything , the fact about it, you hit the clock All of you
hit the clock," and that Irby then walked out of the
breakroom. Brooks testified Irby told him to "hit the
clock" and then told everybody to hit the clock. Bron-
ner testified that Brooks was talking to Irby on his arriv-
al at the meeting and that Irby asked Brooks why he was
disturbing the employees as the rates had been agreed on
at the Monday meeting Bronner interjected that Brooks
was not disturbing the employees as they wanted to meet
again with Irby and that Irby then said, "hit the, clock."
Brooks, Bronner, and Gates looked at each other accord-
ing to the testimony of Brooks and Gates and then all
the employees complied and clocked out. Gates testified
that he believed the employees would have returned to
work the next day as Irby had on a prior occasion told
the employees to stop production and then permitted
them to return to work later
Irby testified that he had considered the matter closed
on Monday and that the employees had indicated their
willingness to work for the reduced rate of pay at that
time but, Brooks, who he characterized as a "trouble-
maker," had stirred the matter up again and had threat-
ened him. He denied having told the employees to "hit
the clock," until after they had informed him that they
would quit rather than work for this reduced pay rate
and had clocked out at which time he told them that "if
they could not go to work and want to punch the clock,
that was up to them " Irby admitted on cross-examina-
tion that the employees had not said anything about quit-
ting but had punched the timeclock and left Irby con-
tended that he was attempting to get the employees to
return to work during the meeting, and at no time told
them to "hit the clock" except for his statement after
they had already done so. Gates testified that after Irby
had told the employees to hit the clock Irby put his
hands in his pants , and walked away to another part of
the building where he stored some antique cars
The Respondent also called Taylor who testified he
had agreed to the reduction in pay at the Monday meet-
ing and did not attend the Wednesday meeting. The Re-
spondent also called Vonsendevane who speaks limited
English Vonsendevane testified that he was standing
some distance from the discussion and that he did not
understand all that was said He testified he heard
Brooks tell him (Khamchan), "Nobody work, go home "
He testified he did not hear Irby say anything He said,
"nobody said fired or quit " Vonsendevane then punched
out on the clock and left Vonsendevane returned the
next day, Thursday, and was returned to work on Friday
as was Kenvongsa Irby testified that the church group
representatives who sponsored Vonsedevane and Ken-
vongsa called him several times and told him that Von-
sendevane and Kenvongsa had been caught up in the
meeting, but were not involved and he permitted them to
return to work. On the next day Brooks, Gates, Bronner,
and Satterwhite returned to the office and were permit-
ted to get their things but were not permitted to return
to work All but Gates became involved in a loud argu-
ment with Irby and Irby told Boucher to "call the law,"
which she did and the police arrived shortly thereafter
and asked Irby whether they worked there and accord-
ing to the testimony of Bronner and Brooks, Irby told
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the police that they had been fired. Brooks, Gates, Bron-
ner, and Satterwhite were given termination notices stat-
ing that they had quit. None has been returned to work.
According to the testimony of Irby, Brooks called him
"an onery son-of-a-bitch" during this conversation.
Brooks denied this and Gates and Bronner corroborated
this denial. Boucher testified that she observed the meet-
ing on Thursday and heard loud and angry voices as the
young men surrounded Irby, who is an older man in his
early sixties, and that she could observe that Irby started
to visibly shake during the conversation. Irby also testi-
fied that Brooks returned to the building the afternoon
on Wednesday and offered to sell Irby some pallets that
Irby bought. Boucher also testified that Brooks returned
to the office on several occasions on Wednesday or
Thursday and on one occasion entered by a side en-
trance. Brooks denied returning to the premises addition-
al times.
Analysis
I conclude that the version of the events of the
Wednesday meeting testified to by Brooks, Gates, and
Bronner is the accurate one. In making this determina-
tion , I have carefully reviewed my impressions of the
witnesses on the stand, and the sequence of events as tes-
tified to by each. I found Brooks and Gates to be very
positive about what occurred at this meeting. Gates' tes-
timony was particularly detailed and convincing. I also
found Bronner's version of the events to be credible. Sat-
terwhite was not called as a witness and did not testify. I
found Irby's testimony to be somewhat confusing and ex-
aggerated, particularly in his characterization of Brooks.
It is apparent that Irby became upset at the meeting par-
ticularly with Brooks who he characterized as a "trou-
blemaker." Irby obviously thought the matter had been
settled on Monday and became upset with Brooks who
he regarded as the instigator of the meeting. I have also
reviewed the testimony of Vonsendevane and found it to
be confusing and capable of several interpretations. Von-
sendevane who was returned to work is not a disinterest-
ed witness and his professed lack of understanding of
what, if anything , Irby said at the meeting and his insist-
ence that Brooks said, "nobody work, go home" did not
convince me that Vonsendevane was relating all of the
facts or at a minimum that he heard the words in the
proper context concerning what Brooks said . Brooks tes-
tified on rebuttal that he had talked to Vonsendevane
and Kenvongsa in the parking lot and told them to
return tomorrow and they would try to return to work.
It is possible that this type of explanation may be what
Vonsendevane is referring to, although I note that he tes-
tified he heard this before he punched out. He also testi-
fied that the meeting was loud and angry and he could
not understand it all. While Brooks, Gates, and Bronner
did not describe the exchange as heated, it is obvious
that it was initially characterized by several people at-
tempting to talk at once.
The words "hit the clock" under similar circumstances
have been held to constitute a discharge, and I find that
the sequence of events and the credibility determinations
fully support the conclusion that Irby discharged the em-
ployees by these words ("hit the clock") Bay-Wood In-
dustries, 249 NLRB 403 (1980). Moreover, complaints
about wages have been long recognized as protected
concerted activity. Maaco Auto Painting, 249 NLRB 1296
(1980). I conclude that the General Counsel has estab-
lished a prima facie case that Respondent violated Sec-
tion 8(a)(1) of the Act by reason of its discharge of its
employees Brooks, Gates, Bronner, and Satterwhite and
its refusal to reinstate them. I conclude that the Respond-
ent has failed to rebut this prima facie case by the pre-
ponderance of the evidence, as I find they were dis-
charged and did not quit and I do not find that they
were discharged for good cause.
With respect to the conduct of Brooks after his dis-
charge on Wednesday, 14 January, I do not find that his
conduct was so egregious such as to proscribe his rein-
statement, even assuming argudendo that he called Irby
an "onery son-of-a-bitch." I also note that while Irby ini-
tially characterized Brooks' conduct as threatening, he
subsequently admitted that Brooks did not attempt to
strike him or otherwise threaten him. I have also consid-
ered the prior criminal convictions of Brooks, but do not
find them to mandate that his testimony be discredited, I
note also that his testimony was corroborated by Gates
and Bronner.
CONCLUSIONS OF LAW
1. The Respondent, Quality Pallet Systems, Inc., a
Georgia corporation is an employer within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by discharging James Brooks, Lonzy Gates, and Freder-
ick Bronner because of their engagement in protected
concerted activities.
3. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it cease and desist
therefrom and take the following affirmative actions, in-
cluding the posting of an appropriate notice , designed to
effectuate the policies of the Act.
I recommend Respondent be ordered to offer James
Brooks, Lonzy Gates, and Frederick Bronner immediate
and full reinstatement to their former positions or their
equivalent, to make them whole for any loss of earnings
or benefits sustained as a result of Respondent's dis-
charge of them, and to expunge any reference to said
discharges from its file. Said loss of earnings and benefits
shall be determined as prescribed in F W. Woolworth
Co., 90 NLRB 289 (1950), with interest , as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962). I do not rec-
ommend a visitatorial clause as requested by the General
Counsel under the circumstances of this case . See O. L
Willis Inc., 278 NLRB 203 fn. 1 (1986).
QUALITY PALLET SYSTEMS
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Quality Pallet Systems, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging its employees for engaging in protect-
ed concerted activity.
(b) 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 actions necessary to
effectuate the policies of the Act.
(a) Offer James Brooks, Lonzy Gates, and Frederick
Bronner immediate and full reinstatement to their former
positions or, if they no longer exist, to substantially
equivalent positions without prejudice to their seniority
or any other rights or privileges previously enjoyed
(b) Remove from its files any reference to the unlawful
discharges of James Brooks, Lonzy Gates, and Frederick
Bronner and notify them in writing of this and that the
discharges will not be used against them in any manner.
(c) Make James Brooks, Lonzy Gates, and Frederick
Bronner whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them
in the manner set forth in the remedy section.
(d) 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.
(e) Post at its facility in Atlanta, Georgia, copies of the
attached notice marked "Appendix."3 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.
2 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
3 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-
1195
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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.
WE WILL NOT discharge or otherwise discriminate
against any of our employees because they engage in
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer James Brooks, Lonzy Gates, and Fred-
erick Bronner immediate and full reinstatement to their
former positions, or, if their jobs no onger exist, to sub-
stantially equivalent positions without prejudice to their
seniority or any other rights or privileges previously en-
joyed and, WE WILL make James Brooks, Lonzy Gates,
and Frederick Bronner whole for any loss of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
WE WILL notify each of them, in writing, that this has
been done and that evidence of the unlawful discharges
will not be used as a basis for future personnel action.
QUALITY PALLET SYSTEMS, INC.