NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,456, BRUCE HARDWOOD FLOORS and JAMES C. HILL., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

BRUCE HARDWOOD FLOORS and JAMES C. HILL.

314 NLRB No. 164.Case No. 26-CA-15662. August 31, 1994 Philip P. McLeod, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

William D. Levy, for General Counsel. Edward Bograd (Blair, Conaway, Bograd & Martin), Charlotte, North Carolina, for Respondent.

Threats--Discharges--Union Activity.--By threatening to terminate an employee in retaliation for his union and concerted activities, an employer interfered with its employees’ right to organize. The employer learned that the employee was going to testify on behalf of another employee in a grievance proceeding and issued the threat in an attempt to prevent that. Section 8(a)(1).

Back reference: ¶3770.1825.

Discrimination--Pretextual Nature of Reason--Termination Unlawful.--By discharging an employee in retaliation for his union activities, an employer discriminated against him. The employer’s reason for the termination was found to be pretextual and it failed to prove that it would have discharged the employee absent his union activity. Section 8(a)(3).

Back reference: ¶4095.1745.

From Text of Board’s Decision

The judge found, inter alia, that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening to discharge and by discharging James C. Hill in retaliation for his attempt to help fellow employee Parker pursue a grievance and for offering to serve as his witness. In its exceptions, [1] the Respondent asserts, inter alia, that the judge erred in finding that it had offered no evidence that it maintained a work rule providing for the discharge of an employee for leaving his or her assigned work area without the permission of that employee’s supervisor. We find merit in this exception. [2] However, because of other evidence which supports the judge’s findings, we adopt his conclusion and recommended Order. In particular we note, as discussed below, that the Respondent failed to impose discipline in the instances in which employees violated this rule with respect to Union Steward Person.

In concluding that the Respondent violated the Act, the judge inter alia, credited testimony which established that employees routinely spoke with Union Steward Person during work hours and while Person was working. [3] The judge credited former employee and Respondent witness Philip Brown who testified that employees frequently went to Person while he was working in the tally booth and when lumber was being graded.

Employee Carlos Hurt testified that he had spoken with Person inside his tally booth on 300 to 400 occasions and that he would often sit and talk to Person. After one such visit, Supervisor Dubose, who was aware that Hurt had been visiting with Person, informed Hurt that he should no longer go to the lumber slips and talk. However, no formal action was taken against Hurt. In addition, employee Charlie Smith testified that he had entered Person’s tally booth and spoken to him “quite often” while Person was working and lumber was being graded. During one of those visits, Supervisor Dubose informed Smith that he should not be in the booth. Smith, however, received no discipline.

The judge further addressed three incidents raised by the Respondent in which it allegedly discharged employees for leaving their work areas without permission. Two of the discharges, the judge concluded, occurred after Hill’s discharge and merely indicated that the Respondent had attempted to enforce a rule after Hill’s discharge. The judge found the remaining discharge to be clearly distinguishable from Hill’s discharge as it involved a production employee who walked away from operating equipment. By contrast, Hill’s work area encompassed the entire yard and his interruption of Person was minimal.

We agree with the judge that the evidence amply demonstrates that other employees routinely interrupted Union Steward Person for longer periods than Hill without being disciplined and we find that the three instances the Respondent cites of its discharge of employees for leaving the work area do not outweigh that evidence. Accordingly, and in light of the judge’s other findings with which we agree, we conclude that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening to discharge and by discharging James C. Hill in retaliation for his attempt to help fellow employee Parker pursue a grievance and for offering to serve as his witness.