American Door Co., Inc., 37 (1970)

AMERICAN DOOR COMPANY, INC.

American Door Company, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 7-CA-7165 and 7-CA 7165(2) February 9, 1970 DECISION AND ORDER

BY MEMBERS FANNING, BROWN, AND JENKINS On October 23, 1969, Trial Examiner Gordon J.

Myatt issued his Decision in the above-entitled proceeding, finding that Respondent engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter the Respondent excepted to Trial Examiner's finding that it violated Section 8(a)(5) and (1) by refusing to bargain and the General Counsel excepted to the Trial Examiner's failure to order reinstatement for discharged employee James Shaw. Both the Respondent and the General Counsel filed briefs in support of their exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board had considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below.' Inc Respondent contends that the General Counsel has failed to establish that the Union represented a majority of Respondent's employees on the date of its demand for recognition In particular, the Respondent contends that the General Counsel failed to establish the authenticity of the signatures on 5 of the 16 cards received into evidence at the hearing (those of Ronald Duncan, Leo Nestell, Wayne Jones, Ruby Dishman, and either Sally or Judith Harrison) Both of the Harrisons identified their own cards at the hearing and testified that they signed on the dates indicated on the cards. The remaining cards were identified by witnesses as having been either signed in the witnesses' presence and/or returned to the witness by the employee who signed the card . Accordingly , we find that all 16 cards have been properly authenticated McEwen Manufacturing Co. 172 NLRB No. 99.

Respondent's manager, Albay Paige, testified there were roughly 30 employees in the plant at the time of the Union 's demand for recognition.

Inasmuch as Paige was aware of the importance of the total number of employees in the plant in calculating whether the Union had a majority, we conclude that Paige approximated the figure at its highest lunit Moreover,

Paige testified that the figure represented the total of all the employees in the plant, excluding only the four office clericals. Thus the figure Paige gave undoubtedly includes supervisors and other employees excluded from the unit Accordingly, as the Union had obtained valid authorization cards in a unit with a maximum size of 30, we conclude that at the time it demanded recognition and bargaining the Union had in its possession valid authorization cards from a majority of Respondent 's employees.

THE REMEDY

37

The Trial Examiner found that Respondent unlawfully discharged employee James Shaw.

However, he recommended against the usual reinstatement because, in his opinion, the altercation between Shaw and Wally Stooks, Jr., made such an order impractical and unwise. Instead he recommended that Respondent be ordered to make Shaw whole for any loss of earnings suffered by reason of the unlawful discharge until Shaw finds suitable equivalent employment elsewhere. The General Counsel has filed exceptions to the Trial Examiner's failure to order reinstatement. We find merit in this exception.

In determining whether an unlawfully discharged employee is entitled to reinstatement we must consider whether his allegedly disqualifying conduct, in the context of the provocation for such conduct, was so gross and so flagrant as to render him unfit for further service.

On March 11, at Respondent's instigation, a number of Shaw's fellow employees held a meeting in order to tell Shaw that he and discriminatee Smith would have to leave the Respondent's employ or the other employees would refuse to work. The following morning, March 12, again at Respondent's instigation, five employees, by physically blocking their entry into the plant, sought to force Shaw and Smith to leave Respondent's employ. Smith and Shaw did not attempt to force their way into the plant and made no further attempt to enter until they had obtained a temporary restraining order forbidding the five employees from blocking their entry into the plant. At approximately 10 a.m., on March 14, Shaw and Smith again attempted to go to work. They entered the plant and punched the timeclock without incident. However, almost immediately after Shaw's arrival at his work station,

Wally Stooks, Jr., grabbed Shaw by the arm, told him to get out, and shoved him. Shaw then struck Stooks and they began to fight. During the course of the altercation Stooks received a cut on his face.

Shaw was then ushered out of the plant.

There can be no question but that Respondent's use of Shaw's fellow employees in an effort to force Shaw to leave its employ placed Shaw under intense pressure. As Shaw returned to work on March 14 for the first time since having been physically prevented from entering the plant, he must have felt the full extent of that pressure. While we do not condone Shaw's reaction, it is not surprising that, when Stooks grabbed him by the arms and shoved him, Shaw struck back. Where, as here, Respondent through intense pressure designed to get rid of an employee because of his union activities provokes an employee into this type of response we believe it would be unjust to reward Respondent by failing to reinstate the employee. In these circumstances we find that Shaw's conduct was not so gross and so flagrant as to render him unfit for further service.

181 NLRB No. 11

Accordingly, we shall order Respondent to reinstate Shaw. _ Respondent shall offer both Douglas Smith and James Shaw full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any of the earnings suffered by reason of their unlawful discharge. In making Smith and Shaw whole, the Respondent shall pay them a sum of money equal to that which they would have earned as wages from the date of the unlawful discharge to the date of the offer of reinstatement , less any net earnings during said period. Backpay shall be computed on a quarterly basis in a manner consistent with the Board policy described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.

ORDER

Service Act, as,amended, after discharge from the Armed Forces.' 4. Renumber paragraphs 2(f) and (g) as paragraphs 2(e) and (f).

5. Delete from the 'Notice to All Employees,' the paragraph which begins with the words 'WE WILL offer Douglas Smith . . .' and the paragraph which begins with the words 'WE WILL make whole James Shaw ...' and substitute the following paragraph:

   WE WILL offer Douglas Smith and James Shaw immediate and full reinstatement and will make them whole for any loss of earnings they may have suffered by reason of the discrimination against them.

6. Delete the 'Note' at the bottom of the notice and substitute the following:

   Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act, as amended, after discharge from the Armed Forces.

   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 Trial Examiner and hereby orders that the Respondent, American Door Company, Inc., Bellevue, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein:

1. Delete paragraph 2(b) of the Trial Examiner's Recommended Order and substitute the following paragraph 2(b):

   'Offer employees Douglas Smith and James Shaw immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner described in the remedy section herein, for any loss of earnings they may have suffered by reason of the discrimination against them.' 2. Delete paragraph 2(c) and renumber the original paragraph 2(d) as paragraph 2(c) and delete the word 'Recommended.' 3. Delete paragraph 2(e) and substitute the following paragraph 2(d):

   'Notify employees Douglas Smith and James Shaw if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and 'We are not unmindful that Shaw has been convicted on an assault charge filed by Stooks as a result of this altercation (At the time of the hearing Shaw was appealing this conviction ) We are not by this action suggesting that Shaw is not guilty of a violation of the law That is for the Michigan Courts to decide We are merely finding on the basis of the record before us that Shaw's conduct was the result of Respondent's provocation and not so flagrant as to render Shaw unfit for further service TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   GORDON J . MYATT, Trial Examiner: Upon a charge filed February 10, 1969,' in Case 7-CA-7165 by United Brotherhood of Carpenters and Joiners of America,

   AFL-CIO (hereinafter referred to as the...