Huttig Sash & Door Co.

National Labor Relations Board - Board Decisions

Dec 5, 1978

239 N.L.R.B. 571 (N.L.R.B. 1978)

HUTTIG SASH & DOOR COMPANY
Huttig Sash & Door Company and Freight Drivers,
Warehousemen and Helpers Local Union No. 390,
an Affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 12-CA-7846-2
December 5, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On July 7, 1978, Administrative Law Judge Sidney
J. Barban issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Huttig Sash & Door
Company, Miami, Florida, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
X Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BAREAN. Administrative Law Judge: This mat-
ter was heard before me in Miami, Florida, on January 10,
1978, upon a complaint issued on October 13, 1977, based
on a charge filed on September 6, 1977, by the above-
named Charging Party (herein called the Union). The com-
plaint alleges that the above-named Respondent violated
Section 8(aX1) of the National Labor Relations Act, as
amended (herein called the Act), by (1) interrogating em-
ployees concerning union activities and sympathies, (2) re-
questing that an employee become involved in conversa-
tions of other employees and report talk about the Union,
(3) lending an employee money with a request that he keep
this in mind when voting in a scheduled representation
election, and (4) maintaining a work rule which prohibited
any kind of meetings or solicitation on Respondent's prop-
erty; and violated Section 8(a)(3) and (1) of the Act by
discharging employee Kenneth Rush on or about August
26, 1977. The answer to the complaint denies the commis-
sion of the unfair labor practices alleged, but admits allega-
tions of the complaint sufficient tojustify assertion of juris-
diction under current standards of the Board (Respondent,
a multistate enterprise, engaged at Miami, Florida, in the
wholesale distribution of millwork and building materials,
during a recent annual period received goods and materials
valued in excess of $50,000 at its Miami facility shipped
directly from outside the State of Florida) and to support a
finding that the Union is a labor organization within the
meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS AND CONCLUSIONS
I. THE FACTS
The decision of the issues in this case depends to a large
extent upon resolution of conflicts in the testimony among
the various witnesses. In assessing the credibility of the
witnesses, I have considered my impressions of the witness-
es and their testimony on the record considered as a whole,
the arguments in the briefs, as well as the probabilities in-
herent in the situations involved. The following findings
are based on my resolution of the issues of credibility. To
the extent that the testimony is not consistent with these
findings, I do not credit that evidence. In some cases,
where it seems particularly advisable, I have indicated the
basis for credibility findings.
A. The Employment of Kenneth Rush
At its Miami facility, Respondent maintains a warehouse
where it receives, stores, and distributes millwork and
building material. Also, part of the warehouse is an area in
which Respondent does certain millwork operations. Dur-
ing the period with which we are concerned here, there
were between 8 and II nonsupervisory employees engaged
in warehousing and driving tasks in the warehouse opera-
tions. Adjacent to the warehouse area, Respondent con-
ducted its office operations, including its sales activities.
During the times material to this case, Gordon E. Fair-
banks was Respondent's warehouse superintendent at this
facility. He was directly responsible to Carl McVay, Re-
spondent's general manager in Miami. It is admitted that
both are supervisors and agents of Respondent within the
meaning of the Act.
Kenneth Rush, while employed by another employer,
had occasion to make a number of deliveries to Respon-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's warehouse. Fairbanks became impressed with Rush
and several times pressed Rush to file an application for
employment with Respondent; Rush did so in May 1977
(all dates hereafter are in 1977 unless otherwise noted). He
began working for Respondent in late May. Fairbanks told
Rush that he wanted Rush to learn the warehouse opera-
tions as quickly as he could in order to be of assistance to
Fairbanks. Thereafter, Rush's duties principally consisted
of loading and unloading trucks and freight cars (together
with other warehouse employees) and checking invoices or
tallies of goods and materials received by Respondent. In
light of issues raised in this matter, it is of some signifi-
cance to note that Rush was not told at this time of the
recent retirement of Millwork Superintendent Bill Dyer, or
that Rush might be expected to do millwork operations. He
was told that Respondent had a probationary period but
not the length of that period. He also was not told that he
was considered a trainee, although that is what Respon-
dent now contends he was.'
During this employment with Respondent, Rush re-
ceived no complaints concerning the performance of his
work or his conduct.2
B. Rush's Union Activities
In late June or early July, Rush began discussing the
possibility of unionization with other warehouse employ-
ees. Receiving some encouragement, Rush set up a meeting
for the warehouse employees at a local tavern. At this
meeting he was asked to obtain union authorization cards.
He did so and arranged another meeting of the employees
at the same tavern on July 28, which was attended by most
of the warehouse and millwork employees. Apparently all
of those employees signed authorization cards in favor of
the Union. Other such meetings of the employees took
place at the tavern in August and September.
By letter to Respondent dated August 18, received on
August 23, the Union claimed to represent a majority of
Respondent's warehouse employees and drivers and re-
quested recognition and bargaining. The Union about this
time or soon thereafter filed a petition for representation of
these employees with the Regional Office of the Board.
The Board held an election among the warehouse em-
ployees and drivers on October 19, following a hearing on
September 27 on the Union's petition.
C. Respondent's Talks With Rush and Other Employees
1. In the first part of August, on the Monday after the
employees signed union authorization cards, or on the
Monday of the following week, when Rush was in Fair-
IThis contention, like some other parts of the testimony of Fairbanks and
McVay, tended to become confusing. At different points it was indicated
that it was intended that Rush also might be trained for other duties or that
he was being groomed to succeed Fairbanks when he retired. I am not
convinced as to these contentions, although the latter may have been
thought of as a possibility for the distant future. On the record as a whole.
the testimony of Respondent's witnesses seemed to equate "trainee" with
"probationer."
2 Fairbanks seemed to equivocate on this issue. McVay stated that he
made no complaint. I credit Rush as set forth above.
banks' office turning in some paper work, Fairbanks asked
Rush if there had been a union at his previous employer.
When Rush answered that there had not been, Fairbanks
asked if Rush had ever belonged to a union or if he had
been approached by a union since working for Respon-
dent. Rush answered in the negative.
2. In the following week, when Rush was again in Fair-
banks' office with some paper work, Fairbanks asked Rush
if he would be a "good company man," and if he saw any
group of employees talking, "to find out what they were
talking about, if it was union or whatever, and report back
to him." 4
After some uncertainty in his testimony, Fairbanks
denied that he had asked Rush "to keep his ears
open and report back . . . if he heard anybody talking
union or engaging in union activities," stating that "I told
him to keep his eyes and ears open. . . for stealing." Fair-
banks stated that Respondent "had a lot of problems with
stealing" (not otherwise specified) and that he did not want
strangers in the warehouse. In his testimony, Fairbanks
also tied this explanation in with the following incident
related by Rush.
3. Shortly after the above incident, when Rush was
again in Fairbanks' office in connection with his work,
FIairbanks showed him a list of company rules, which Rush
had not previously seen in the plant. Fairbanks pointed out
one of these rules to Rush, which, as the latter recalled,
forbade "solicitation or passing out printed matter on com-
pany property and company time." Later that day, Rush
saw these rules posted on a bulletin board in the ware-
house.
Fairbanks recalled only that he had a discussion with
Rush in which he told Rush "to keep his eyes and ears
open for strange people [identified elsewhere as pedlars or
solicitors] coming in this warehouse," again because of as-
serted problems with stealing. He did not recall pointing
out any particular company rule to Rush and denied that
he had any similar discussion with any other employees.
Jeff Patey, Respondent's office manager, recalled being
in the office in early August when he overheard Fairbanks
telling Rush to keep his eyes and ears open. But he heard
no mention of the Union in that conversation, or any men-
tion of pedlars or solicitation.
Rush did recall an instance in which Fairbanks spoke to
him about strangers coming into the warehouse, but denied
that this was mentioned, or that stealing was mentioned on
the occasions set forth above. Upon considering the record
as a whole and my impression of the witnesses, I credit
Rush's testimony as set forth above, as to both incidents. I
believe that Fairbanks' testimony confuses several differ-
ent conversation.
4. Rush's employment with Respondent was terminated
on Friday, August 26, as discussed hereinafter. On the fol-
3Fairbanks recalled asking Rush if his previous employer had been
unionized, but states this was merely conversation, that it had no relation to
union activity at Respondent's facility. He further testified, "That's all I
remember about union, period." I have credited Rush as set forth above.
Fairbanks denied that he had asked "any other employee . .. . whether or
not he had been a member of the union." He further denied any knowledge
of Rush's union activity until after Rush vwas let go,
4 Rush states that on several occasions during this period Fairbanks spoke
to him about being "a good company man."
572
HUTTIG SASH & DOOR COMPANY
lowing Monday or Tuesday, General Manager McVay
went around the warehouse speaking to the employees
present, either singly, or in groups of two or three. McVay
asked those employees why they wanted a union at Re-
spondent's operation. Some replied (untruthfully) that they
did not know anything about it. Others answered that they
desired better benefits or were happy with things as they
were. In some instances McVay asked if the employees
knew what the Union would cost them, and, when they
stated they did not know, McVay said he would find out
for them. McVay immediately went into his office and
wrote down the responses given by the employees.
McVay's original testimony on this subject was: "I asked
them what they wanted a union for. I said, 'I don't know
why you want a union in here.' " Immediately thereafter
McVay asserted, "I did not ask them. I said to them, 'I
don't know what you want a union in here for.' I made a
statement to them. I didn't ask them." To the extent that
McVay asserts that he was not asking the employees to
inform him as to their reasons for desiring union represen-
tation on this occasion, I do not credit his testimony.
5. When employee Robert Brown returned to work after
being hospitalized in September 1977, he sought a loan
from Fairbanks to help him pay his rent. Fairbanks sug-
gested that Brown see McVay, but Brown demurred. Later
that day McVay came to Brown and tendered him the
amount of money which Brown had sought from Fair-
banks, at the same time telling Brown, "Don't forget about
me when the voting day comes up."
D. The Discharge of Rush
It should be noted initially that though Respondent con-
tends that Rush was laid off, not discharged, because of
"economic reasons," inter alia, I find that he was dis-
charged. Rush was not told that he was being laid off when
he was let go, nor was he informed that he would be or
might be called back to work under any conditions. Fur-
ther, Respondent's reasons for letting him go, as discussed
hereinafter, do not stand close analysis. The fact that Re-
spondent did reemploy Rush after the issuance of the com-
plaint in this matter, as set forth hereinbelow, does not
alter the nature of the original termination.5
On August 26, Rush was called into McVay's office,
where, according to Rush's credited testimony, McVay
told Rush that Respondent "no longer needed" him due to
the fact that "work was slow"; and because Rush was "no
longer needledr' to replace retired Mill Superintendent Bill
Dyer, who Rush was informed he had had been hired to
replace (Rush had not previously been informed of this);
and because Rush "was not taking the proper work load
off Mr. Fairbanks." 6 In addition, though it was not stated
to Rush, Respondent now justifies its timing of Rush's dis-
Even Warehouse Superintendent Fairbanks had some difficulty with the
problem. At one point on direct examination he accepted the idea that Rush
had been "discharged"; at another point he suggested that Rush had been
"dismissed."
6 McVay, early in the hearing, gave the following reasons for letting Rush
go: "Economic conditions was one reason. Another reason is that we
thought we needed an assistant to [Fairbanks] due to the retirement of our
mill superintendent [Dyer] who assisted [Fairbanksl in his duties We found
out this was not necessary since we had a trainee [Thomas Arnold] hired
charge (3 days after receipt of the Union's demand for
recognition) on the basis that Rush's 90-day probationary
period was about to expire.
The testimony adduced in support of the various reasons
given for the testimony of Rush tends to be inconsistent
and sometimes shifting. Thus, in the first place, there is a
dispute between McVay and Fairbanks as to whether work
was actually slow at the time Rush was let go, and also
seemingly as to whether Rush was told that work was slow.
Thus McVay, when asked if the work was slow when Rush
was terminated, replied, "The work, when we let Mr. Rush
go was approximately the same as when we hired him.
*. ." Earlier, in response to the statement that "Now you
say work was slow," McVay asserted "I didn't say it was
slow.... ." Fairbanks, on the other hand, when asked what
Rush was told when he was terminated, answered, ". . . we
had a slack up in business. Business had just kind a slacked
off. And due to lack of work . . . I didn't need him"; and
also "[Aind I needed more help which I found out he
wasn't capable of helping me enough."
On consideration of the testimony of the two men and
the record as a whole, I credit McVay over Fairbanks on
this issue and find that there was no decline in work at the
time Rush was let go. This seems to be the position adopt-
ed by Respondent in its brief (p. 5).
Respondent's brief (pp. 5-6) argues that even though
there was as much work to be done, there was less need for
Rush (which the brief recognizes as a seeming inconsisten-
cy), because it is asserted that the Respondent had hired
another man (identified only as "Clarence") to perform
millwork in the operation formerly supervised by Superin-
tendent Dyer. A major difficulty with this contention, how-
ever, is that, although McVay and Fairbanks assert that
Rush was hired in part to take the place of Dyer, neither
asserted that the employment of Clarence was brought up
for the first time on Fairbanks' cross-examination. At that
point, when asked if Clarence had been employed before
or after Rush, Fairbanks said, "I really don't know, sir.
He's [i.e., Clarencel been there about, oh, maybe eight or
nine months."' 7
On direct examination, Fairbanks testified that he and
McVay decided that they "just didn't need" Rush at the
end of his probationary period because "he [Rush] was
supposed to help in the mill with Bill Dyer. More or less
take some of Bill Dyers' duties. That the guy in the mill
would make the doors. And do a little bit of millwork." On
cross-examination, however, when pressed as to what it
was Rush was failing to do in the mill that made him thus
dispensable, Fairbanks tended to deprecate the work to be
done in the mill and emphasize Rush's failings elsewhere,
as the following excerpts from his testimony show:
Q. (Mr. Richman) Well, you said you hired Mr.
Rush because you needed him for the mill. Did you
need him for the mill?
A. We needed him to help me, sir, wherever I seen
fit to put him.
prior to Rush who was very efficient at the Job." Later, McVay added,
"Economically, we don't feel we needed two [trainees, Rush and Arnoldl."
7 This would indicate that Clarence was employed in Apnl or May. Since
Rush was employed in late May. the chances are that Clarence was em-
ployed before Rush.
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q.... And you said he wasn't doing the job?
A. Right.
Q. New what kind of work did you expect him to
do in the mill?
A. Well, sir, the mill is a very small part. It's part of
the warehouse.
Q. So what work did you expect Mr. Rush to do in
the mill?
A. He would help me a little bit, sir. If I walked in
the mill and I want to nail up a pile of doors, I would
ask him to help me nail them up or give him a man to
help nail up the doors.
Q. And in what way was he not helping you in the
mill?
A. Well, sir, you're tying in the mill. He helped me a
little bit in the mill. But as far as being my assistant he
wasn't helping me enough with the checking of the mate-
rial.
Q. Okay So now it's the checking .... Now had
you gone to him and told him, or explained to him
that you didn't think he was doing the job?
A. No, sir, ... I was expecting him more or less to
come to me and ask for a little more work to do. I
mean if we had a trailer of doors to put away, I would
expect for him, not for me telling him so much, to be
a little aggressive and grab it and do it. But he never
came to me so much to do these things.... He
wasn't helping me enough. [Emphasis supplied.]
Inasmuch as this appeared to be a significant shift in
Respondent's position, Fairbanks was thereafter asked to
explain just how Rush failed to "measure up" in his work,
to which Fairbanks replied, "Well, sir, when you say mea-
sure up, let me say that my job requires a lot of pencil
work. When he was helping me it required a lot of pencil
work. And he just wasn't giving me what I needed. And
that's about all I can tell you, sir. He wasn't enough help
for me. In other words, he wasn't handling the responsibil-
ity I wanted him to handle." When asked for specifics,
Fairbanks said only that "when it came to a carload of
material I found that I was going back and rechecking it
myself to make it come out right," but also stated that he
could not recall any occasion on which he brought this to
Rush's attention.
Nevertheless, Fairbanks, at another place in his testi-
mony, agreed that Rush did assist him "in the ways that
[Fairbanks] asked him to."
Based on the above and the record as a whole, I am
convinced that Rush was not hired to replace Mill Superin-
tendent Dyer or to do his work. I am further persuaded
that the various reasons given to Rush and in testimony at
the hearing as reasons for Rush's termination were make-
weight excuses to justify Respondent's action. 8
$I have not discussed in detail Respondent's claim that Rush was not
needed because Respondent had another trainee, Arnold, available. I be-
lieve this to be of the same caliber as the contentions which have been
discussed. The record is convincing that Arnold then, as now, was employed
E. The Rehire of Rush
By letter dated December 14, McVay advised Rush:
"There is a job opening in our warehouse requiring the
same type work that you were doing prior to your lay-off.
Since you were the last employee laid off, this job is being
offered to you . ... The salary will be the same as your
previous earnings." 9 Rush accepted the offer and has re-
turned to work in Respondent's warehouse.
According to Fairbanks, the job offered Rush became
available when Respondent terminated another warehouse
employee who had been hired before Rush to be Fair-
banks' assistant, but had proved to be completely unrelia-
ble. Fairbanks asserts that Rush is now doing the same
work as before, but indicates that he is not now Fairbanks'
"assistant," that Rush "had a little more authority before."
(This last assertion is not explained. Possibly Fairbanks
was referring to the fact that he alone is now doing all of
the checking of tallies.)
On the day before the hearing is this matter, Rush desir-
ing to speak with McVay about delay in receipt of subpe-
nas issued to the warehouse employees to testify at the
hearing, asked permission to come into McVay's office.
When McVay agreed, Rush asked if there had been any
notification from the union hall concerning the subpenas.
McVay responded that he did not "want to hear nothing
else about any damn union"; that none of the employees
would be released "to go to court without a subpena." 10
II. ANALYSIS AND CONCLUSIONS
A. Alleged Interference With and Restraint and Coercion of
Employees
Interrogation: Shortly after Rush spearheaded the union
organizational drive, while Rush was in Superintendent
Fairbanks' office, Fairbanks asked Rush whether his previ-
ous employer had been unionized, and whether Rush had
been a member of a union previously, or whether he had
been approached by a union while employed at Respon-
dent. Rush replied in the negative. Shortly after Rush's
termination, and within a week after the Union claimed
majority status and demanded recognition, General Man-
ager McVay went into the warehouse and queried the em-
ployees as to why they wanted a union in Respondent's
operation. Some gave truthful replies; others untruthfully
denied that they knew anything about the Union. In the
context of this case, and particularly in light of the fact that
McVay's attempt to have the employees declare themselves
as to the Union followed immediately upon the discharge
in a sales capacity, with his base in Respondent's office, and that he was
pnrncipally available to Fairbanks on an emergency basis.
The indications from Faribanks' testimony (though his testimony on the
point tended to be unclear) were that Respondent did not have a seniority
policy. notwithstanding the implications of this letter.
0 McVay, called as a hostile witness by General Counsel, testified sub-
stantially in accordance with Rush's testimony set forth above, except that
he asserts that Rush "busted" into his office, and that he (McVay) probably
said that "the union ... is not going to run my business." I have credited
Rush as set forth above. However, I was struck at the hearing with the
vehemence of McVay's last quoted assertion and his repetition of that posi-
tion to General Counsel at the hearing.
574
HUTTIG SASH & DOOR COMPANY
of Rush, the leading advocate of the Union, I find that
Respondent's actions set forth constitute unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
Request to report on union activities: Fairbanks asked
Rush to be a good company man and report back to Fair-
banks conversations among the employees, in Rush's
words, about the "union or whatever." I find that by this
conduct Respondent engaged in unfair labor practices in
violation of Section 8(aX1) of the Act.
The employee loan: McVay loaned a substantial amount
of money to employee Brown with the request that Brown
not "forget about me when the voting day comes up." Re-
spondent argues that since Respondent had a right to soli-
cit the employee to vote "no" and did not actually condi-
tion this loan or any future loan on the way the employee
voted, no violation should be found. However, the vice
here is similar to that which attaches to any personal bene-
fit granted by the employer just before an election: the
demonstration that the employer's beneficence depends
upon the employer's good will and may be withdrawn if
the employer is not pleased. It is found that by this action
Respondent violated Section 8(a)(l) of the Act.
The no-solicitation, no-distribution rule: Employee Rush
testified that Superintendent Fairbanks, after the employ-
ees had signed authorization cards for the Union, for the
first time called Rush's attention to a company rule forbid-
ding "solicitation or passing out printed matter on compa-
ny property and company time." Later that day, Fairbanks
posted this on the company bulletin board. In the absence
of any explanation to the employees as to their rights to
discuss the Union during nonwork periods or distribute
written materials on company property away from work
areas during nonwork periods, this rule is impermissibly
broad and violates Section 8(a)(I) of the Act. See, e.g.,
Waukegan-North Chicago Transit Company, 225 NLRB 833
(1976).
B. Alleged Discrimination
Kenneth Rush was employed by Respondent in late
May to work in the warehouse, purportedly as an assistant
to the warehouse superintendent; however, so far as this
record shows, the only task he performed not regularly as-
signed to others was checking tallies of incoming freight.
Although Respondent now contends that his work perfor-
mance was unsatisfactory, management made no com-
plaint to Rush during his tenure of employment. In late
July, Rush was apparently solely responsible for organizing
the warehouse on behalf of the Union, by arranging meet-
ings to discuss organization, securing union authorizations,
and getting the employees to sign those cards. Shortly
thereafter, Fairbanks, the warehouse superintendent, had a
series of talks with Rush concerning union activities. First
Fairbanks queried Rush as to whether his previous em-
ployer had been unionized, whether Rush had been a
member of a union, and whether he had been approached
by a union while employed by Respondent. Significantly,
no other employees were questioned about such matters at
that time. Thereafter, Fairbanks asked Rush to be "a good
company man" and report back to Fairbanks what the em-
ployees were talking about, including union matters. And
last, Fairbanks made a particular point of advising Rush
that it would be a violation of company rules to solicit or
distribute literature on "company time or company prem-
ises."
On August 23, Respondent received a letter from the
Union claiming that the Union had signed up a majority of
Respondent's warehouse employees and demanding recog-
nition. On August 26, Respondent let Rush go, giving him
reasons for his termination which the record shows were
either not true, or at best makeshift excuses for that action.
Respondent contends, nevertheless, that there is no evi-
dence that Respondent knew of Rush's union activity, and,
thus, could not have let him go for that reason, and, in any
event, is not shown to have any animus against union orga-
nization, and, thus, would not be likely to discharge an
employee for such activities. It is true that there is no direct
evidence of company knowledge of Rush's union activities.
However, the singling out of Rush for questioning concern-
ing his union connections shortly after he had signed up
the employees for the Union, as well as other union-ori-
ented actions in which Respondent involved him, as well as
the fact that he was quickly discharged when the Union
demanded recognition, raise a strong inference that Re-
spondent took these actions because they knew of his activ-
ities on behalf of the Union-at least in the absence of
credible explanations for Respondent's actions, which, as
has been noted, are lacking. In addition, in a small, appar-
ently close-knit work group as that employed in Respon-
dent's warehouse (8-11 employees) there is a substantial
likelihood that management would become informed of
the emloyees' union activities and the identity of the leader
in those activities." I find that at the time Rush was termi-
nated, Respondent knew or had reason to believe that
Rush was active on behalf of the Union. As to Respon-
dent's union animus, the record is convincing that Respon-
dent's management at this facility was opposed to union-
ization, and, on the record as a whole, I am convinced that
Respondent terminated Rush because of his union activi-
ties and, thus, violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their membership in, contacts with, and sympathies in re-
gard to labor organizations, by requesting an employee to
report back to management employee conversations con-
cerning the Union, by granting an employee benefit to af-
H Respondent points out that Fairbanks would not logically have re-
quested Rush to report back employee conversations about the Union if he
knew of Rush's union activities, and, thus, he must not have known. This is
a good point and I have given it careful consideration. However, it does not
necessarily follow that Fairbanks acted in ignorance of Rush's activities; he
may not have fully trusted his information and sought in this manner to test
Rush, or, more likely, Fairbanks thought he could persuade Rush to be "a
good company man," and forego his adherence to the Union. as indicated
by Fairbanks' admonishment to Rush on this and other occasions to he a
"good company man."
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fect the vote in a representation election, and by maintain-
ing an impermissibly broad no-solicitation rule, Respon-
dent engaged in unfair labor practices in violation of Sec-
tion 8(aX)() of the Act.
4. By the discharge of Kenneth Rush on August 26,
1977, Respondent engaged in discrimination in regard to
hire or tenure of employment or other terms or conditions
of employment discouraging membership in or activities
on behalf of a labor organization in violation of Section
8(aX3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(aXI) and (3) of the Act, it will be recommended
that Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
It has been found that Respondent discriminatorily dis-
charged Kenneth Rush in violation of Section 8(aX3) of
the Act. Although the record shows that Respondent has
since reinstated Rush, the record is unclear as to whether
he has actually been returned to his former position. It will
therefore be recommended that Respondent be ordered to
offer Kenneth Rush immediate and full reinstatement to
his former position, or, if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights or benefits, and make him whole
for any loss of pay or benefits he may have suffered as a
result of the discrimination against him, as found herein-
above, by payment to him of a sum of money equal to that
he would have earned as wages or other benefits from Au-
gust 26, 1977, to the date of his full reinstatement, less his
net earnings during such period, and interest thereon, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977)12
In order to make effective for Respondent's employees
the guarantee of rights contained in Section 7 of the Act, it
will be recommended that Respondent cease and desist
from in any manner infringing upon the rights guaranteed
by the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 13
The Respondent, Huttig Sash & Door Company, Miami,
Florida, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in order to discourage membership in or
activities on behalf of Freight Drivers, Warehousemen and
Helpers Local Union No. 390, an affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(b) Coercively interrogating employees concerning
union membership, activities, or sympathies.
(c) Seeking to have employees report on the union activ-
ities or conversations concerning unions of other employ-
ees.
(d) Granting employee benefits to affect employee
membership in, or activities on behalf of, or support of a
labor organization.
(e) Promulgating or maintaining or enforcing any rule
or regulation prohibiting its employees from soliciting on
behalf of any labor organization on Respondent's premises
during their nonworking time, or prohibiting the distribu-
tion of union literature in nonworking areas during em-
ployees' nonworking time.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer to Kenneth Rush, if it has not already done so,
immediate and full reinstatement to his former position or,
if that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of
earnings or benefits he may have suffered by reason of
Respondent's discrimination against him as set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon 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 neces-
sary to facilitate the effectuation of the Order herein.
(c) Post at its operations at Miami, Florida, copies of the
attached notice marked "Appendix." 4 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
12 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
14 In the event that this Order is enforced by a judgment of the 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."
576
HUTTIG SASH & DOOR COMPANY
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, lay off, or otherwise discrim-
inate against any employee in order to discourage
membership in, or support of, Freight Drivers, Ware-
housemen and Helpers Local Union No. 390,
IBTCWHA, or any other labor organization.
WE WILL NOT coercively interrogate employees con-
cerning union membership, activities, or sympathies.
WE WILL NOT ask employees to report on other em-
ployees' union membership, or activities, or conversa-
tions concerning the Union.
WE WILL NOT grant benefits to employees to discour-
age union membership or activities, or support for a
union.
WE WILL NOT make, maintain, or enforce any rule
which prohibits employees from soliciting on behalf of
the Union, or any other labor organization, on compa-
ny premises during employees' nonworking time, or
from distributing union literature on company prem-
ises in nonworking areas during employees' nonwork-
ing time.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by the National Labor Relations
Act, as amended.
WE WILL offer to Kenneth Rush immediate and full
reinstatement to his former position or, if that position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
ings or benefits which he may have suffered by reason
of the discrimination against him, with interest
thereon.
HUNTIG SASH & DOOR COMPANY
577