Wadco Co., 207 (1978)

WADCO COMPANY

Wadco Company and Bonnie J. Harris. Case 8-CA10949

January 11, 1978 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND TRUESDALE

On November 3, 1977, Administrative Law Judge John C. Miller issued the attached Decision in this proceeding. 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Wadco Company, Wadsworth, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

1. Substitute the following for paragraph 2(a):

   '(

   1. Offer Bonnie Harris immediate and full reinstatement to her former position or, if it no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, dismissing, if necessary, any employee hired as a replacement, and make her whole for any loss of pay she may have suffered by reason of Respondent's refusal to reinstate her by payment to her of a sum of money equal to that she would have earned from April 15, 1977, to the date of Respondent's offer of reinstatement, with interest.' 2. Substitute the attached notice for that of the Administrative Law Judge.

   I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.

   2 In the recommended Order and notice, the Administrative Law Judge erroneously referred to a fixed 7-percent interest rate and thereby failed to apply properly the Board's 'adjusted pnme interest rate' formula, which may vary in the manner prescribed in Florida Steel Corporation, 231 NLRB 234 NLRB No. 37

   651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We shall therefore modify the recommended Order by deleting the reference to a specific interest rate percentage which may not necessarily govern Respondent's backpay obligations in every calendar quarter involved.

   APPENDIX

   NOTICE TO EMPLOYEES

   POSTED BY ORDER OF THE

   NATIONAL LABOR RELATIONS BOARD

   An Agency of the United States Government WE WILL NOT discharge employees or threaten to discharge employees because they have expressed support for a union.

   WE WILL NOT interrogate employees about the union activities or support and sympathies for a union nor will we ask employees to engage in surveillance of employees' union activities and sentiments.

   WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act.

   WE WILL offer Bonnie Harris immediate and full reinstatement to her former job or, if it no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges, and WE WILL make her whole for any loss of pay she may have suffered because we discharged her, with interest.

   WADCO COMPANY

   DECISION

   STATEMENT OF THE CASE

   JOHN C. MILLER, Administrative Law Judge: On a charge brought by Bonnie J. Harris, an individual, the Regional Director for Region 8 issued a complaint on May 26, 1977, alleging that Respondent had discriminatorily terminated Harris on April 14, 1977, and at various times in the month of April had, inter alia, interrogated and threatened employees because of their union activity and had solicited an employee to engage in surveillance of the union activity of others, in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended. A hearing was held before me in Akron, Ohio, on September 12, 1977. At the close of the hearing, Counsel for the General Counsel amended the complaint to add an additional subparagraph, 6(F), alleging in substance an additional violation of Section 8(a)(1) in the interrogation of Loretta Marty. The Respondent's answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, and to file briefs.

   Upon the entire record in this case and from my observation of the demeanor of the witnesses, and having considered the arguments of counsel and the briefs submit207

   DECISIONS OF NATIONAL LABOR RELATIONS BOARD ted by the General Counsel and by Respondent, I make the following:

   FINDINGS OF FACT

   1. JURISDICTION Wadco Company, a Division of Cornwell Quality Tools,

      Inc., a corporation duly organized under the laws of Ohio, maintains a facility in Wadsworth, Ohio, at which it receives and assembles tools and equipment. The Wadsworth facility is the only one involved in this controversy.

      Cornwell Quality Tools, Inc., annually ships produce valued in excess of $50,000 directly from points within the State of Ohio to points outside the State of Ohio. The Respondent admits, and I find, that it is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   2. UNFAIR LABOR PRACTICES A. The Facts The following factual findings are based on a composite of the testimony of Lou Roberts, plant manager, Dennis Roth, an admitted supervisor, and Bonnie Harris, the alleged discriminatee. On the basis of the witnesses' demeanor, I have credited the testimony of Bonnie Harris where it is in conflict with the testimony of Roberts or Roth.

      On April 12, 1977, Supervisor Roth directed employee Loretta Marty to secure a chair and utilize it in operating another machine. As Marty was removing the chair,

      Bonnie Harris who worked nearby commented that it was Fay Wyatt's chair and, when told that Roth had instructed Marty to take that particular chair, Harris commented to Roth that 'he was in big trouble.' Fay Wyatt returned shortly thereafter and inquired what happened to her chair and, upon being informed by Harris, she went to talk to Supervisor Roth. She returned, however, without the chair and started working at her table. Shortly thereafter, Harris, being somewhat upset at the incident, remarked to Roth that 'it is at times like this that we need a union.' This prompted a heated discussion lasting several minutes after which Roth ordered Harris back to work. On the following day, April 13, Harris credibly testified that Roth came to her and said that if she did any more 'union talk' he would take her to Lou's (Lou Roberts, plant manager) office to be fired as a 'troublemaker' since she could not be fired for talking union. When Harris inquired of Roth whether Lou Roberts told him to tell her that he said yes.

      On April 14, 1977, at approximately 4:15 p.m., Harris was directed to go to Roberts' office by Roth where she was terminated by Roberts allegedly for insubordination stemming from the chair incident. According to Harris' credited testimony, Roberts informed her of her termination because of complaints about her from both buildings and because she had refused to return to work. She further testified that she did not refuse to do any work on April 12, and that in the past, when she had refused to do work, it was said in jest and she did in fact perform the work. Roth confirmed Harris' testimony that occasionally she refused to do work but that it was simply done in jest and that she always performed the work. When questioned, Harris credibly denied that she used profanity or swore at Roth in the discussions about the chair. Roberts testified that Roth told him Harris said they 'needed a God-damn union' although Roth himself testified simply that Harris used the term 'damn union' and avoided characterizing it as profanity. The record clearly reflects, however, that the dominant theme was Harris' remark about the need for a union and that in clearing Harris' subsequent discharge with Mr. Moller, president of the corporation, he also informed him of her remark about the Union.

      Roth conceded that Harris was a good worker, that he did not complain about her work or think about firing her for the chair incident, and that he did not tell Roberts of the incident until questioned about it. It was about noon the next day that Roberts inquired about the incident and Roth told Roberts about Harris' comments about a union and that he had to tell her to go back to work....