Brothers Three Cabinets

National Labor Relations Board - Board Decisions

Mar 31, 1980

248 N.L.R.B. 828 (N.L.R.B. 1980)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DRW Corporation d/b/a Brothers Three Cabinets
and Local 1959, San Bernardino-Riverside-Im-
perial Counties District Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 21-CA- 17171
March 31, 1980
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
DECISION AND ORDER
On September 13, 1979, Administrative Law
Judge William J. Pannier III issued the attached
Decision in this proceeding. Thereafter, Respon-
dent 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative L.aw Judge
and to adopt his recommended Order.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1) of
the Act by threatening its employees with plant
closure if they chose to be represented by the
Union, by telling its employees that Supervisor
Oatman and employee Houk had been discharged
for being union instigators, by threatening its em-
ployees with discharge and other reprisals if they
supported the Union, by equating support for the
Union with disloyalty to Respondent, by creating
the impression that its employees' union activities
were under surveillance, and by interrogating em-
ployees regarding their union activities,. We also
agree with the Administrative Law Judge that Re-
spondent violated Section 8(a)(3) of the Act by dis-
criminatorily discharging employee Houk and fur-
ther violated Section 8(a)(1) of the Act by dis-
charging Supervisor Oatman.
As set forth in the Administrative Law Judge's
Decision, the record establishes that Supervisor
Oatman and employee Houk played significant
roles in the organizing campaign. In early October,
Oatman, with Houk's assistance, sounded out the
other employees as to whether they were interest-
ed in the Union, contacted the Union and arranged
a meeting with union officials at Oatman's house,
i Respondent has expected to certain credibility findirngs 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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.
248 NLRB No. 95
and passed out union cards and literature. Shortly
thereafter, o October 12, Oatman and Houk were
laid off by Respondent. During the next several
weeks, Respondent's officials informed employees
that both Oatman and Houk "were fired for the
union because . . . they were instigators," that the
plant would be closed if the employees chose the
Union to represent them, that support for the
Union was equivalent to disloyalty to Respondent,
and that employees would be discharged if they
supported the Union. In addition, employees were
given the impression that their union activities
were under surveillance and were interrogated
about their union activities.
As noted above, the Administrative Law Judge
found, inter alia, that Respondent violated Section
8(a)(1) of the Act by discharging Supervisor
Oatman. For the reasons set forth below, we agree
with this conclusion.
It is, of course, a commonplace that Section
2(11) supervisors are not per ser accorded protec-
tion under the Act from discharge or other disci-
pline for engaging in union or concerted activity
and, accordingly, the Board recognizes an employ-
er's prerogative to discourage such activity among
its supervisors. Thus, when an employer has dis-
charged a supervisor out of a legitimate desire to
assure the loyalty of its management personnel and
its action was "reasonably adapted" to that legiti-
mate end, 2 the Board has found that such conduct
is indeed permissible and does not violate Section
8(a)(1) of the Act.3 The mere fact that, as an inci-
dental effect thereof, employees may fear the same
fate will befall them if they engage in similar activ-
ity is insufficient to transform otherwise lawful
conduct into a violation of Section 8(a)(l) of the
Act. 4
It is quite another matter, however, when an em-
ployer engages in a widespread pattern of miscon-
duct against employees and supervisors alike. For,
under those circumstances, the evidence may be
2 Nevis Industries, Inc., d/b/a Fresno Townhouse, 246 NLRB No. 167,
sl. op., p. 8 (1979). See Stop and Go Foods, Inc., 246 NLRB No 170, sl.
op., p. II11, fn. 24 (1979).
a See, e.g., Stop and Go Foods, Inc., supra, L & S Enterprises. Inc., 245
NLRB No. 144 (1979).
4 See Nevis Industries, Inc.. d/b/a Fresno 7bwnhouse, supra, sl. op., p.
11 (Member Penello concurring). We agree with our dissenting colleague
that fear instilled in rank-and-file employees alone is insufficient to war-
rant finding a violation of Sec. 8(a) (1) of the Act in these cases. Howev-
er, we do not believe that the language of the court of appeals in Oil City
Brass Works v. N.L.R.B., 357 F.2d 466 (5th Cir. 1966), enfg. 147 NLRB
627 (1964), precludes finding a violation herein. That case involved the
discharge of a supervisor for giving testimony adverse to the respondent
at a Board proceeding, an action which our colleague agrees violates Sec.
8
(a)(1) of the Act, since it concerns the Board's ability to effectively en-
force employee rights under the Act. See also Better Monkey Grip Com-
pany, 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (5th Cir. 1957), cert.
denied 353 U.S. 864. In the present case we are presented with a situation
which admittedly involves different considerations, but which does not,
as our colleague would have it, command a different result
BROTHERS THREE CABINETS 829
sufficient to warrant a finding that the employer's
conduct, as a whole, including the action taken
against its supervisors, was motivated by a desire
to discourage union activities among its employees
in general s and thus constitutes what the Board has
characterized as a pattern of conduct aimed at co-
ercing employees in the exercise of their Section 7
rights." By such acts the employer has exceeded
the bounds of legitimate conduct intended to dis-
courage union activity among its supervisors. And,
more importantly, it has intentionally created an at-
mosphere of coercion in which employees cannot
be expected to perceive the distinction between the
employer's right to prohibit union activity among
supervisors and their right to engage freely in such
activity themselves. In this context, the coercive
effect on employees resulting from the action taken
against a supervisor cannot be viewed as unavoid-
able and "incidental" to the discharge of an unpro-
tected individual. Thus, in recognition of the per-
vasive atmosphere of coercion intentionally created
by the employer's total course of conduct and its
direct effect on employees, the Board has found tht
restoration of the status quo ante is required to fully
dissipate this coercive effect and must necessarily
encompass reinstatement of all individuals affected,
including supervisors.7
In the present case, the evidence fully supports
the conclusion that Oatman's discharge, like Re-
spondent's other unlawful conduct, was motivated
by its desire to discourage union activity among its
employees in general and was part of a pattern of
conduct designed to achieve that end. As found by
the Administrative Law Judge, Respondent en-
gaged in threats, interrogations, and other unlawful
conduct against its employees, including the dis-
charge of employee Houk. In addition, Respondent
discharged Supervisor Oatman and used his demise,
in conjunction with Houk's discharge, as an exam-
ple to employees of what would happen to them if
they supported a union. Under these circumstances,
we agree with the Administrative Law Judge that
Oatman's discharge was part of a pattern of con-
duct aimed at coercing employees in the exercise
Heck's Inc., 170 NLRB 178 (1968).
6 See, e.g., Nevis Industries, Inc., d/h/a Fresno Townhouse, supra.-
Downslope Industries. Inc., and Greenbrier Industries Inc., 246 NLRB No
132 (1979); Southern Plasma Corporation, 242 NLRB No. 171 (1979); Pro-
duction Stamping, Inc.. 239 NLRB No. 17h (1979): Fairview Nursing
Home. 202 NLRB 318 (1973)
' See Nevis Industries, Inc., d/b/a Fresno Townhouse, supra, sl. op.. p. 7.
In this regard, we strongly disagree with our colleague's assertion that
the remedy is "neither enhanced nor diminished by the failure to reinstate
Oatman" and that reinstatement of the discharged employee is all that is
required to remedy Respondent's unfair labor practices and convey to the
employees the extent of their rights under the Act. In our opinion, com-
plete restoration of the status quo ante is as necessary in these cases as it
is in instances involving widespread unfair labor practices directed solely
against employees
of their Section 7 rights and, therefore, violated
Section 8(a)(1) of the Act.
Our dissenting colleague misses the point when
he states that the Board has not articulated any
clear guidelines "as to when supervisory participa-
tion in protected union or concerted activity along
with rank-and-file employees is or is not protect-
ed."8 The Board has never held that supervisory
participation in concerted or union activity is pro-
tected. Rather, reinstatement of supervisors in these
cases has been ordered only when, and precisely
because, the respondent's action is found to have
been motivated, not by the supervisor's own activ-
ity, but by a desire to stifle employees' exercise of
Section 7 rights and is part of an overall scheme
designed to achieve successfully that result. In
some cases, that the action taken against a supervi-
sor was so motivated may be readily apparent,9
while in others motivation may not be so easily dis-
cerned.10 The fact remains, however, that vindica-
tion of employees Section 7 rights, not protection
of supervisors engaging in union or concerted ac-
tivity, is the basis for the finding that a respondent
has violated Section 8(a)(1) and that the circum-
stances require reinstatement of the discharged su-
pervisor.
Similarly, our dissenting colleague errs when he
opines that the Board now accepts as a "general
proposition" that supervisors who engage in union
activity with rank-and-file employees and receive
the same treatment share the protection of the
Act. 12 Clearly, supervisory participation in con-
certed or union activity is not protected and super-
visors who engage in such activity do so at their
a Infra. p. 18
See, e.g., Fairview Nursing Home, supra, in which there was no evi-
dence that respondent even knew that the discharged supervisors were
engaged in concerted activity.
'o In Downslope Industries, Inc., and Greenbrier Industries, Inc. supra,
sl. op., pp 7-8, fn. 10, it was noted that Members of the Board have dif-
fered on the legal significance of the facts of a particular case but have
never ignored the explicit exclusion of supervisors from the protection of
the Act. These differences may in some measure account for our col-
league's belief that the Board has reached contrary results in "similar"
cases
" In attempting to distinguish those cases in which he agrees the
Board correctly found a violation of Sec. 8(aH1) of the Act from those in
which the "pattern of conduct" rationale has been "improperly" applied,
our colleague notes that in the former the supervisors were "only tangen-
tially involved in the organizational activity," while in the latter cases the
supervisors were themselves "more or less active" in the union. Even as-
suming, arguendo, that this statement is accurate, the degree of supervi-
sory participation in union activity is of questionable significance when
one considers that the action against the supervisors in these cases was
found by the Board to be motivated by another consideration: The desire
to stifle the Sec 7 rights of employees. Although the fact that a supervisor
is intimately and visibly involved in such activity is relevant to the extent
that it relates to the motivation for a respondent's actions, it does not a
fortiori require the Board to find that the respondent was merely exercis-
ing its right to discourage union or concerted activity among its supervi-
sors
12 Infra, p. 19
BROTHERS THREE CABINETS
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peril. ' However, the fact that supervisors and em-
ployees alike have been discharged and otherwise
coerced for engaging in union activity is evidence
which, under proper circumstances, warrants the
inference that the action against the supervisor, like
that taken against the employees, was unlawfully
motivated. Moreover, when the evidence shows
that the respondent has engaged in a widespread
pattern of misconduct, as is the case here, a remedy
which encompasses all individuals affected is ap-
propriate.
Accordingly, we find that Respondent's dis-
charge of Supervisor Oatman violated Section
8(a)(l) of the Act and that his reinstatement is nec-
essary to remedy fully Respondent's violations of
the Act.
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, DRW Corpo-
ration d/b/a Brothers Three Cabinets, San Jacinto,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
MEMBER TRUESDALE, concurring in part, dissent-
ing in part:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(1) of the Act by telling employ-
ees that the instigators of the organizational drive
had been discharged for their union activity, by
threatening employees with discharge and other re-
prisals if they supported the union, by equating
support of the union with disloyalty, by creating
the impression of surveillance of employees' union
activity, and by interrogating employees in regard
to their union sympathies. I also concur with the
majority that Respondent violated Section 8(a)(3)
of the Act by discharging Bradley Houk. I do not
agree, however, that Respondent violated Section
8(a)(l) by discharging David Oatman, a supervisor
within the meaning of the Act.
The 1947 amendments to the National Labor Re-
lations Act narrowed the definition of the term
"employee" by excluding "any individual em-
ployed as a supervisor." As recognized by the U.
S. Supreme Court, the practical effect of the
amendments was to free "employers to discharge
supervisors without violating the Act'!s restraints
against discharges on account of union member-
ship." Beasley v. Food Fair of North Carolina, 416
U.S. 653, 654-655 (1974).
'3 See, e.g., Stop and Go Foods, Inc., supra, L S Enterprises, supra.
Despite the general exclusion of supervisors for
coverage under the Act, the Board, with court ap-
proval, has held that in certain circumstances the
discharge of a supervisor may violate Section
8(a)(l) of the Act. Thus, an employer may not dis-
charge or otherwise discipline a supervisor for
having given testimony adverse to an employer's
interests. This is true whether the supervisor's testi-
mony is given at an NLRB proceeding' 4 or during
the processing of an employee's grievance under
the collective-bargaining agreement.' 5 The protec-
tion afforded supervisors in these situations stems
not from any statutory provisions for supervisors,
but rather from the Section 7 rights of employees.
As the Board observed in Better Monkey Grip,
supra, "rank-and-file employees are entitled to vin-
dicate these rights through the testimony of super-
visors who have knowledge of the facts without
the supervisors risking discharge or other penalty
for giving testimony . . . adverse to their employ-
er."
For esentially the same reason, i.e., the vindica-
tion of employees' Section 7 rights, an employer
may not discharge a supervisor for refusing to
commit unfair labor practices,' because the super-
visor fails to prevent unionization,' 7 or because the
supervisor warned a rank-and-file employee that
the employer was "building a case" against the em-
ployee. 8
Although occasionally disagreeing as to whether
there was substantial evidence to support the
Board's findings with respect to an employer's mo-
tivation in discharging a supervisor, 9 reviewing
" Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243
F.2d 836 (5th Cir. 1957); Modern Linen & Laundry Service. Inc., 116
NLRB 1974 (1948); Dal-Tex Optical Company, Inc., 131 NLRB 715, 730-
731 (1959), enfd. 310 F.2d 58 (5th Cir. 1962); Oil City Brass Works, 147
NLRB 627 (1964), enfd. 357 F.2d 466 (5th Cir. 1966); Leas & McVitty.
Inc., 155 NLRB 389 (1965), enforcement denied 384 F.2d 165 (4th Cir.
1967).
t Ebasco Services, Incorporated, 181 NLRB 768 (1970); Rohr Industries.
Inc., 220 NLRB 1029 (1975).
"' Vail Manufacturing Company, 61 NLRB 181 (1945), enfd. 158 F.2d
664, 666-667 (7th Cir. 1947); Inter-City Advertising Co. of Greensboro,
North Carolina, Inc., 89 NLRB 1103 (1950), enfg. as modified 190 F.2d
420 (4th Cir. 1946); General Engineering Inc., 131 NLRB 648 (1961), 311
F.2d 570, 573-574 (9th Cir. 1962); Jackson Tile Mfg. Co., 122 NLRB 764
(1958); Miami Coca Cola Bottling Company, d/b/a Key West Coca Cola
Bottling Company, 140 NLRB 1359 (1963).
' Talladega Cotton Factory Inc., 106 NLRB 295 (1953), enfd. 213 F.2d
208, 215-217 (5th Cir. 1954).
'B Buddies Super Markets, 223 NLRB 950 (1976), enforcement denied
550 F.2d 39 (5th Cir. 1977).
1' See, e.g., Miami Coca Cola Bottling Co.. supra, where the court con-
cluded that the supervisor was discharged for incompetence, rather than
the failure to prevent unionization; General Engineering, Inc.. supra,
where the Court concluded that the evidence indicated that the supervi-
sor's discharge was for cause rather than because he refused to assist the
employer in using an incident as a pretext to unlawfully discharge an-
other employee; Consolidated Foods Corporation,165 NLRB 953, 956-959
(1967), enfd. in part 403 F.2d 662 (6th Cir. 1968), where the court held
that a supervisor's discharge was for unsatisfactory performance of his
Continued
BROTHERS THREE CABINETS 831
courts have generally endorsed the principle that
under certain circumstances a supervisor's dis-
charge may violate Section 8(a)(l) of the Act.
However, while endorsing the principle, the courts
have had some difficulty accepting the Board's ra-
tionale in these cases, i.e., that "the net effect of
[the supervisor's] discharge was to cause nonsu-
pervisory employees reasonably to fear that the
Respondent would take the same action against
them if they testified against the respondent in a
Board proceeding to enforce their guaranteed
rights under the Act." In reviewing the Board's de-
cision in Oil City Brass Works, supra at 602, the
Fifth Circuit held that the Board's rationale inject-
ed a "false issue":
While the cases are not entirely clear, we
hold that whether rank-and-file employees
would be put in fear by Hammock's discharge
is irrelevant and merely clouds the real issue.
Any time an employee, be he supervisor or
not, is fired for union activity rank-and-file
employees are likely to fear retribution if they
emulate his example. But the Act does not
protect supervisors, it protects rank-and-file
employees in their exercise of rights. If the
fear instilled in rank-and-file employees were
used in order to erect a violation of the Act,
then any time a supervisor was discharged for
doing an act that a rank-and-file employee may
do with impunity the Board could require re-
instatement. Carried to its ultimate conclusion,
such a principle would result in supervisory
employees being brought under the protective
cover of the Act. Congress has declined to
protect supervisors and the courts should not
do by indirection what Congress has declined
to do directly. The principle that precludes re-
instatement where a supervisor is fired for
union activity, even though it instills fear in
rank-and-file employees, also precludes rein-
statement where that fear is instilled because
of testimony given by the supervisor.
While rejecting the Board's rationale, the court en-
forced the Board's Order, "not because [the super-
visor's discharge] put rank-and-file employees in
fear but because it interfered with, restrained or co-
erced them in the enjoyment of their rights secured
under the statute." The court went on to observe:
The Act does not require the Board to stand
by powerless and watch an employer coerce
supervisors into committing unfair labor prac-
duties rather than because of his wife's union activities; Leas McVitty.
Inc.. supra, where the court held that the supervisor was discharged for
the way he performed his duties rather than for testifying in a prior
Board proceeding.
tices under pain of being fired, but permits the
Board to protect rank-and-file employees by
allowing supervisors to perform their statutory
duties without fear. It is this principle that re-
quires us to enforce the Board's order.
I agree that the discharge of a supervisor in the
cases described above violates Section 8(a)(1) of
the Act because it interferes with the exercise of
employees' Section 7 rights. I have reservations,
however, with respect to another category of su-
pervisory discharge cases, the "integral part" or
"conduit" line of cases, i.e., those cases in which
the Board has held that the discharge of a supervi-
sor is "an integral part of a pattern of conduct
aimed at penalizing employees for their union ac-
tivities." From a conceptual standpoint, this line of
cases differs from the other categories in two re-
spects: (1) unlike cases where the supervisors were
only tangentially involved in the organizational ac-
tivity,2 0 the supervisors in these cases were, them-
selves, more or less active for the union seeking to
organize the rank-and-file employees; (2) whereas
the governing principles in the other categories
generally have been uniformly applied by the
Board, this category includes cases where essential-
ly similar factual settings have resulted in decisions
which are difficult to reconcile. For these reasons,
and since it is this line of cases which leads to my
disagreement with the result reached by the major-
ity in the instant case, I deem it necessary to
review these cases in some detail.
Unlike the other categories of supervisory dis-
charge cases, which can be traced back to the first
years following the Taft-Hartley amendments, this
line of cases is of relatively recent origin, going
back only to 1967. In Pioneer Drilling Co., Inc., 162
NLRB 918 (1967), enfd. in material part 391 F.2d
961-963 (10th Cir. 1968), two "drillers," admitted
supervisors who had signed union authorization
cards, were discharged upon their refusal to accept
a transfer to another drilling site. Focusing on the
industry custom whereby the crew's retention was
dependent on the drillers' employment, the Trial
Examiner found that antipathy toward unioniza-
tion, rather than business exigencies, was the reason
for the employer's insistence that the drillers trans-
fer to another location. In support of his conclusion
that the discharge of the drillers "was an integral
part of a pattern of conduct aimed at penalizing
employees for their union activities," the Trial Ex-
aminer cited Miami Coca Cola Bottling Company,
20 Although the supervisor discharged in Leas & McVitty, supra, was
the "instigator" of the union's organizational drive "and was known
throughout the plant as one of the leading exponents of union organiza-
tion," it was the supervisor's appearance at a Board hearing, rather than
his own interest in organization, which led to the supervisor's termina-
tion.
BROTHERS THREE CABINETS 31
832 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
supra, in which the supervisor was not active for
the union (indeed, he strongly opposed the union),
and his discharge resulted from the fact that the
unfair labor practices he engaged in failed to deter
the employees from unionizing.
In Krebs and King Toyota, Inc., 197 NLRB 462
(1972), the Board found that the employer violated
Section 8(a)(1) by discharging the supervisor of the
employer's body shop. The body shop supervisor
was admittedly a strong advocate of unionization
who, on one occasion during the course of a strike
to protest the suspension of an employee, told the
employer he "would not return to work without
union representation" and later told the employer
he would return to work immediately if' the em-
ployer would "let the Board settle it."
In finding a violation, the Board, citing Pioneer
Drilling, supra, concluded that the body shop su-
pervisor "spoke for the striking body shop employ-
ees and by his discharge Respondent effectuated its
decision to close the body shop operation because
of the employees' union adherence."
In dissent, Member Kennedy argued that the
body shop foreman, unlike the supervisors in Pio-
neer Drilling, was "the leader of the prounion em-
ployees in his shop," so that his case "falls squarely
within the rule that the discharge of a supervisor
for engaging in union activities is not unlawful."
In short, in these cases the Board has held that
although supervisors may have "actively allied"
themselves with rank-and-file employees on the
side of unionization, the supervisors are protected
if their discharge is "an integral part of a pattern of
conduct aimed at penalizing employees for their
union activities."21 However, in other decisions in-
volving the discharge of supervisors, the Board has
reached a different result.
The case Karl Kristofferson, et a, d/b/a United
Painting Contractors, 184 NLRB 159 (1970), enfd.
sub nom. Blaine A. Johnson v. N.L.R.B. , 441 F.2d
266 (4th Cir. 1971), involved the discharge of three
individuals, including an admitted supervisor, for
protesting what they regarded as unsafe working
conditions. The Trial Examiner, whose findings
were adopted without comment by the Board,
found that the concerted protest, which included
discussions with top management and visits to the
West Virginia Roads Commission and the office of
a West Virginia Congressman, was protected under
the Act and that such protest was the reason for
the discharge. With respect to the supervisor, how-
ever, the Trial Examiner found that the supervisor
"had no protected right to engage in concerted ac-
21 See also VADA of Oklahoma, Inc., 216 NLRB 750 (1975); Fairview
Nursing Home, 202 NLRB 318 (1973); Donelson Packing Co.. Inc., 220
NLRB 1043 (1975).
tivity, either in his own behalf, or on behalf of em-
ployees." The Trial Examiner's decision, which
was adopted without comment by the Board, gives
no indication that the supervisory status of one of
the individuals involved played any part in his dis-
charge. Instead, the evidence indicates that the re-
sponse to the activity of the supervisor and the em-
ployees was identical-respondent discharged
them.
In Sibilio's Golden Grill, Inc., 227 NLRB 1688
(1977), the Board (then Chairman Murphy and
Members Jenkins and Walther) reversed an Admin-
istrative Law Judge's finding that the employer
violated Section 8(a)(l) of the Act by discharging
the head waitress, a conceded supervisor, along
with another employee, as a result "of a dispute of
long standing concerning the method of compen-
sating the bus girls," which led the employees to
seek union representation. In finding a violation
with respect to the supervisor, the Administrative
Law Judge noted that the action taken against her
was identical to that taken against an employee,
that her status as a supervisor had not "entered the
picture at all," and that the employer did not
defend on this ground. In reversing the Administra-
tive Law Judge with respect to the supervisory dis-
charge, the Board observed (227 NLRB at 1688):
At the time of, and just prior to, her discharge
Barneman had been acting as the employees'
spokesman in what was until then their wholly
economic dispute with the Respondent, and it
was she who thereafter called in the Union to
represent the employees with respect to those
economic issues. Barneman was not acting to
protect or vindicate employees' statutory
rights; nor was she refusing to infringe on
those rights; rather she was concerned only
with advancing her own and the employees'
job interests. Further, her discharge was not
an integral part of a scheme resorted to by Re-
spondent by which it sought to strike through
her at its employees for their turning to pro-
tected concerted activities or by which it
sought through her otherwise to discourage
their engaging in such activities.
In distinguishing Pioneer Drilling, supra, and
Krebs and King Toyota, supra, the Board in Sibilio's
held that the discharge of the supervisor "was not
a ploy to facilitate or cover up the contemporane-
ous and subsequent unlawful discharge of employ-
ees." As in United Painting Contractors, supra, how-
ever, there is no indication that supervisory status
played any part in respondent's decision to termi-
nate the supervisor. Rather, the probative evidence
indicates that the supervisor's discharge was moti-
vated by the same factors which led to the dis-
BROTHERS THREE CABINETS 833
charge of employees; i.e., respondent's opposition
to its employees' participation in protected concert-
ed activity. 22
In my view, the "integral part" or "conduit" line
of cases has produced decisions which are confus-
ing an inconsistent-with no clear guidelines ar-
ticulated as to when supervisory participation in
protected union or concerted activity along with
rank-and-file employees is or is not protected. 23
The present state of confusion in this area is, in my
judgment, attributable to the sui generis status of
the Pioneer Drilling case. Thus, no case before or
after Pioneer Drilling really supports a conclusion,
as was argually true in Pioneer, that the discharge
of supervisors was designed to thwart unionization
among rank-and-file employees. In Pioneer, it was
customary practice in the drilling industry for the
retention of rank-and-file employees to depend on
the continued employment of the drillers. In the
factual situation unique to Pioneer Drilling, it was
not unreasonable, therefore, for the Board to find
the discharge of the supervisors to be a pretext to
disguise the employer's efforts to rid itself of union
adherents in general-a rationale embraced by the
Circuit Court of Appeals for the Tenth Circuit.
When, however, the Pioneer rationale is applied
to other cases involving "a pattern of pervasive
unfair labor pratices," conceptual problems and
confusion are the result. For example, in Krebs and
King Toyota, it can hardly be said that the body
shop foreman occupied the same status as drillers
in the drilling industry. The Board specifically
found that the employer's shutdown of the body
shop was unlawfully motivated; i.e., by the em-
ployees' attempt to organize. However, it is diffi-
cult to conceive of how the body shop foreman in
Krebs and King, who was one of the most active in-
dividuals on behalf of the union, served as a con-
duit for the employer's unfair labor practices di-
rected toward the employees. If, in fact, the clos-
ing of the body shop were a result of the advent of
the union, the Board's traditional remedy for a dis-
criminatory closing of an operation should have
"2 Although he U!noed Painting Contractors and Sibihilo's Golden Grill
cases involved concerted rather than union activity, the Board has never
distinguished between them as far as whether participation therein is pro-
tected. In addition, in these two cases the supervisors' participation in ac-
tivity which the Board found protected was quite prominent, rather than
incidental The Board's decisions contain no indication, however, that the
amount or degree of a supervisor's participation in either union or con-
certed activity is f controlling significance
21 Compare. on the one hand, Sibilio's Golden Grill and United Painting
Contractors. supra (no violation), with Krebs and King Toyota and Fair-
view Nursing Home, supra (violation found)-in all of which the dis-
charge of the supervisors (1) was contemporaneous with the discharge of
employees, (2) occurred in the context of other unfair labor practices, (3)
was devoid of any evxdence that the employer was motivated by the su-
persisors' participation in particular rather than opposition to protected
activity i general, and (4) was part of a pattern of conduct aimed at pe-
nalizing employees for their exercise of Sec 7 rights
been adequate to remedy the employer's unlawful
conduct. From a remedial standpoint, if the body
shop were reopened and the unlawfully terminated
employees reinstated with backpay, I fail to see
why reinstatement of the body shop foreman was
necessary for these employees to be aware of their
rights under the Act and the extent to which the
Act will protect them.
In the same vein, there is no apparent reason
why the discharged supervisors involved in Fair-
view Nursing Home, supra; VADA of Oklahoma,
Inc., supra; and Donelson Packing Co., Inc., supra,
were conduits any more than the body shop fore-
man in Krebs and King. And, as in Krebs and King,
there is no apparent reason why reinstatement of
the supervisors is necessary to apprise employees of
the extent to which their right to organize is pro-
tected. Rather, examination of the cases after Pio-
neer Drilling (except for Sibilio's Golden Grill and
United Painting Contractors), suggests that the
Board has made a quantum leap from a unique fac-
tual situation to a general proposition that supervi-
sors who make common cause with rank-and-file
employees and are the recipients of the same treat-
ment meted out to employees share the protections
of the Act extended to employees. The simple fact
is, however, that employees are protected against
discharge for engaging in union activity while su-
pervisors are not. And it makes no difference
whether the supervisor engages in union activity
alone or in concert with employees or whether the
supervisor's participation in union activity is the
reason for the supervisor's discharge.
The majority contends that my observation re-
garding the absence of clearly articulated guide-
lines "misses the point." However, except for (1) a
litany-like juxtaposition of cases where the Board
has found a violation, and (2) a pronouncement
that the lawfulness of a supervisor's discharge turns
on an employer's motivation, the majority does
nothing to clarify the situation. As to (1), I leave it
to the reader to decide whether the various results
in supervisory discharge cases (particularly those
cited at footnote 23 supra) are reconcilable. As to
(2), making motivation the touchstone of supervi-
sory discharge cases is wrong as a matter of policy
as well as law and can serve only to add chaos to
confusion. In my view, it is the majority that
misses the point. Supervisors are expressly excluded
from the Act. As a result of this exclusion, supervi-
sors have no protected right to engage in union ac-
tivity. Thus, whether the discharge of a supervisor
for engaging in union activity is motivated by what
an employer perceives to be disloyalty on the su-
pervisor's part or is motivated by the employer's
BROTHERS THREE CABINETS
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general opposition to union activity is, in these cir-
cumstances, irrelevant.
Similarly, the majority cites as error my sugges-
tion that under their holdings supervisors who
engage in union activity are protected merely be-
cause they suffer the same fate as employees. How-
ever, aside from an invocation of the rubric of
"widespread pattern of misconduct," the majority
does nothing to dispel this notion. Again, I will
leave to the reader to judge whether, intended or
not, this is the net result of Board decisions in this
area.
Viewed against the background of the cases
above, I am unable to find a violation of the Act in
the discharge of David Oatman. As found by the
Administrative Law Judge, Oatman was the
Union's "most active proponent." Thus:, it was
Oatman who sounded out the employees as to
whether they were interested in contacting a union;
it was from Oatman's home that the Union was
contacted and in Oatman's home that the first
meeting with union representatives was held; final-
ly, it was Oatman who received union authoriza-
tion cards and brochures and distributed them to
employees who did not attend the meeting at his
house. As the Administrative Law Judge also
found, it was Oatman's advocacy of the union
which led to his selection for layoff.
Although recognizing the general proposition
that supervisors are not covered by the Act, the
Administrative Law Judge-based on his finding
that Oatman had been laid off because of his union
activities-concluded that Oatman's discharge vio-
lated the Act because Respondent comlmunicated
to employees the reason for Oatman's termination.
Thus, in the Administrative Law Judge's view,
"Oatman's layoff became a part of Respondent's
campaign to discourage support for the Union,
thereby serving as a conduit for actions aimed ulti-
mately at intimidating employees." The difficulty
with this approach, as the Fifth Circuit observed in
Oil City Brass, supra, is that it injects a "false
issue." In the circumstances present here, the fact
that Respondent informed employees that Oatman
had been selected for layoff because of his union
activities is irrelevant to the issue of Oalman's ter-
mination. Cf. Texas Gulf Sulphur Company, 163
NLRB 88, 95 (1967).
To the extent Respondent's statement conveys an
unlawful threat to rank-and-file employees, such
can be remedied by Respondent's posting of an ap-
propriate notice. Similarly, from a remedial stand-
point, reinstatement with backpay of unlawfully
discharged employees is all that is needed to
convey to other employees the extent to which the
Act protects their right to organize and bargain
collectively. In the instant case, the reinstatement
of employee Houk conveys such a message. Thus,
the remedy is neither enhanced nor diminished by
the failure to reinstate Oatman.
In the final analysis, this case reduces itself to a
simple equation: the discharge of supervisors be-
cause they give testimony adverse to their employ-
ers' interests or because they refuse to commit
unfair labor practices is unlawful, not because of
any statutory rights possessed by supervisors, but
because it interferes with the right of employees to
exercise their rights under Section 7 of the Act.
The discharge of supervisors-either by themselves
or allied with rank-and-file employees-as a result
of their participation in union or concerted activity
is not unlawful for the simple reason that employ-
ees are protected by the Act, supervisors are not.
Applying this simple test to the situation present
here, I am unable to conclude that Oatman's dis-
charge interfered with the right of employees to
exercise their Section 7 rights or that his reinstate-
ment is necessary to convey to employees the
extent to which the Act protects these rights. Ac-
cordingly, I dissent from the finding that Oatman's
discharge violated Section 8(a)(1) of the Act.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Riverside, California, on
March 22 and 23, 1979. On December 1, 1978,1 the Re-
gional Director for Region 21 of the National Labor Re-
lations Board issued a complaint and notice of hearing,
based on an unfair labor practice charge filed on October
16, alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 19 U.S.C.
§151, et seq., herein called the Act.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based on the entire
record, on the briefs filed on behalf of the parties, and on
my observation of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, DRW Corporation d/b/a Broth-
ers Three Cabinets, herein called Respondent, has been a
California corporation engaged in the business of manu-
facturing and installing wood cabinets for private resi-
dences and commercial developers, with its facility locat-
ed at 490 South State Street, San Jacinto, California. In
the normal course and conduct of these business oper-
ations, Respondent annually purchases and receives
goods and products valued in excess of $50,000 from
suppliers located within the State of California, each of
I Unless otherwise stated. all dates occurred in 1978.
BROTHERS THREE CABINETS 835
which, in turn, purchase these same goods and products
directly from supplies located outside the State of Cali-
fornia. Therefore, I find, as admitted by Respondent, that
at all times material, Respondent has been an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Local 1959, San Bernardino-Riv-
erside-Imperial Counties District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, herein called the Union, has been a labor
organization within the meaning of Section 2(5) of the
Act.
111. ISSUES
1. Whether Respondent violated Section 8(a)(3) and
(1) of the Act when it laid off employee Bradley Houk
on October 12 and Section 8(a)(l) of the Act when it
laid off Supervisor David Oatman on that same date.
2. Whether Respondent violated Section 8(a)(1) of the
Act by creating the impression that employees' union ac-
tivities were under surveillance and by making threats to
employees on October 14; by interrogating and making
threats to employees on October 16; and, by threatening
to close its plant on October 19.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
At the end of September or the beginning of October,
Respondent's shop employees spoke to their foreman,
David Oatman, 2 regarding the possibility of having a
meeting with owner David Wesson3 regarding certain
problems which they perceived to exist at Respondent.
Oatman spoke to Wesson about conducting such a meet-
ing, but Wesson refused to do so. When Oatman report-
ed Wesson's response to the employees, nailer Bradley
Houk suggested that the employees contact the Union.
During the course of the following morning Oatman
spoke with the employees, seeking to ascertain if they
were interested in unionization. Later that same day,
nailer Rudy Stika, Houk, and Oatman journeyed to the
latter's home where Houk telephoned the Union. During
a subsequent telephone conversation a meeting between
the Union and interested employees was arranged to take
place at Oatman's home.
At that meeting, all but two of the employees in atten-
dance signed cards authorizing the Union to represent
them. Both Oatman and Houk attended the meeting and
signed cards. Oatman was given blank cards and bro-
chures which, on the following day, he distributed in Re-
spondent's parking lot after work to employees who had
not attended the meeting.4 Houk testified that during the
2 It is undisputed that Oatman had been a supervisor within the mean-
ing of Sec. 2(11) of the Act during the time that he had engaged in ac-
tivities on behalf of the Union.
a It is admitted that at all times material, Wesson had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent.
I Oatman testified, on cross-examination, that he had also passed out
cards in the back building during breaks. This had not been mentioned in
Oatman's pre-trial affidavit in which he had stated only that he passed
out cards "after quitting time just outside the shop in the parking lot."
course of that day he had obtained a card from Oatman
which he had given to employee Jim Davenport, asking
the latter to sign it.5 Oatman, Houk, and Stika each testi-
fied that efforts had been made to conceal the union ac-
tivity that was taking place.
On Thursday, October 12, a payday, Respondent laid
off five employees. Two of them were Oatman and
Houk. After the employees had punched in that morn-
ing, Respondent removed the timecards of those who
were to be laid off, intending to notify them of their lay-
offs at the end of the workday. Oatman, however, no-
ticed, later that morning, that his timecard and that of
Houk had been removed. He told Houk of the missing
timecards and the two of them spoke with then Manager
William Harry Norton.6 Oatman inquired why the time-
cards had been removed and Norton refused to give a
reason. The conversation terminated with Norton telling
Oatman and Houk that Wesson would speak with them
once he arrived at work.
Later that morning, Oatman and Houk encountered
Wesson and Norton. During the ensuing conversation,
Oatman and Houk were told that they were being "let
go," according to Wesson, "because of slowing business;
there were no materials in and we couldn't get them in
until we got more jobs out to get money to pay for
them; for raw materials." When it was pointed out that
Oatman and Houk were Respondent's two most experi-
enced employees, they were told that this was the prob-
lem: that because they were paid the highest rates,7 they
were being selected for layoff in the interest of economy.
It is undisputed that when Oatman responded that Re-
spondent "should if that was the case . .. let your least
experienced people go and keep your top men, the one
with the most experience with less pay," Norton replied,
"no, we are going to have to let you go." It is also un-
controverted that, when Oatman pursued the matter,
asking that Wesson and Norton "be honest," Norton re-
sponded that "it was best for the shop that he let us go."
It is not disputed that Respondent had begun to expe-
rience a decline in business commencing in October.
Thus, while its gross sales exceeded $90,000 per month
during July, August, and September, its gross sales for
October were but $43,086. Based on its perception that
business was declining, the decision was made to reduce
its employee complement on October 12. Both Wesson
and Norton testified that it had been the latter who had
made the selection of the employees to be laid off on
that date. With respect to the selection of Oatman,
Norton testified that:
Oatman further testified that he did not recall whether he had mentioned
having passed out cards inside the plant to the Board's attorney who had
taken his statement, but that he did not think that the attorney had asked
whether he had passed out cards inside the plant.
" Davenport was not called to corroborate Houk's testimony in this re-
spect. In pre-trial affidavits, Houk made no mention of having given a
card to Davenport, though his last affidavit had been taken during the
same month that the hearing in this matter was conducted. In fact, in one
of his affidavits, Houk stated that the extent of his activity had been
"going to the meeting, signing a card and talking to a couple of the
people."
I It is admitted that at all times material, Norton had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent.
I Oatman received $7.25 per hour and Houk was paid S per hour.
The next highest rated employees were paid $6.50 per hour.
BROTHERS THREE CABINETS 35
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was going to take his place and start walking
the benches myself as foreman in the back building.
I just figured he didn't want to step down, you
know, to lower part of the job and take less money
too. As a rule that's not the way it works. So I fig-
ured that would be the best. And we were cutting
down on the overhead. And I was goirLg to work
on the bench too, so I was taking Brad's place. I
fixed a place on the bench where I could nail right
outside the office and then work closer lo the men.
Norton testified that he had selected Houk for, "three
or four reasons. One, I just had to cut down the expense.
He too, was higher paid, but that wasn't the main reason.
I mean if he was a good worker, I wouldn't have let that
sway us because the work would have been cut. He was
real undependable. He would come and go when he felt
like it." By way of amplification, Norton explained:
I just go by what the body performs which is
probably bad for me to spot what that person does
in the business, you know. He is just undependable.
I don't want to go into details, but if I would tell a
customer yes, you will have your job done by noon,
and I will walk by his bench and he ain't there,
somebody will say he went home and the job hadn't
gotten done either. Things like that.
He is always late. We have helped him quite a
bit, and for somebody I feel that we helped so
much.
I tried to see his side of it; he had a lot of home
problems too. I gave him a second chance because
in the past when I gave people second chances like
that, they came out better than they were the first
time.
By letter dated October 13, the Union's attorney noti-
fied Respondent that the Union represented a majority of
Respondent's employees and demanded recognition. On
the following day, Saturday, October 14, nailer Daniel
Packham and Stika reported for work in the morning to
finish assembling cabinets, loading them onto a truck,
and making delivery. Norton worked with them that
morning and it is undisputed that, as they worked, the
three men had conversed. Packham testified that, among
his comments, Norton had said "[h]ow bad off the
Brothers were, and how he came in and saved the whole
thing. How know how and everything will put every-
thing back in order and we would be on our feet, blah-
blah-blah, you know." Packham further testified that,
over the course of the morning, Norton had commented
that Houk and Oatman "were fired for the union because
he felt like they were instigators." Norton had also said,
according to Packham, that, when he had spoken with
Wesson earlier, the latter had asked "if he needed a
reason to fire" and that, when Norton had told Wesson
that he did not, Wesson had said that he wanted Houk
and Oatman fired. Packham further testified that Norton
had remarked "that if the union came in that we would
have to do strictly union work and we wouldn't have
any rights as such in the union, and we wouldn't have
anything to say about the work."8
Stika testified that during the course of that morning,
while loading the truck, Norton had remarked that he
knew that "you guys are trying to start a union, and in
fact we have been contacted by several contractors who
have heard about it also, and that if we did go union,
they would take their business elsewhere. If we did go
union, the owner-Dave Wesson-would close the plant.
. ." Stika, like Packham, testified that Norton had de-
scribed a conversation with Wesson in which the latter
had inquired if he needed a reason to fire Houk and
Oatman, and that Norton had told Wesson that no
reason was needed. Stika further testified that Norton
had said that Wesson had then instructed him to fire
Houk and Oatman.
On direct examination, Stika testified that he had also
participated in a conversation with Norton on Thursday,
October 19, during which approximately eight other em-
ployees had been present.9 According to Stika, the con-
versation had commenced with Norton describing how
Respondent had gotten started in business and how, it
had been his experience that had kept it a profitable op-
eration. Then, testified Stika, Norton had said that
Wesson "was really concerned about union activities,
was worried that the Union might start throwing stones
at his house or shooting at his wife or things like that,"
and that "he was concerned also that if the union came
in he just could not afford to operate the shop; he would
have to close," for Respondent had been trying to ward
off creditors because it was having some financial prob-
lems and that, in view of those problems, if Respondent
went union, it could create a further financial problem.
Stika agreed that certain other comments had been
made by Norton. However, he was uncertain as to
whether they had been made on that day or on some
other occasion. Thus, he agreed that Norton had said
that, if Respondent became union, it would be the only
union shop in the area; if Respondent were the only
union shop, it just could not compete; if Respondent
could not compete and if its prices were too high, then it
would lose sales; if Respondent lost too many sales and
too much business then the result was going to be that it
would have to close the plant; and Respondent had re-
ceived some calls from some of its customers who were
worried over the fact that Respondent might go union
8 In a pre-trial affidavit, Packham had stated that Norton had made
these comments to "Rudy Stika and ." Packham testified that while
Stika had been in the building for the entire 1-1/2 hour period during
which Norton had made these comments, Stika had not been within hear-
ing distance when all of these statements had been made by Norton. This
was corroborated by Stika, who testified that he had observed Norton
talking to Packham, out of hearing distance, while he (Stika) had been
working by the custom bench.
9 While Stika was unable to recall the names of all of the employees
who had been present during this conversation, he did identify some of
them, including Packham. Packham testified that he had heard very little
of what Norton had said that day, inasmuch as he had gone "about my
business." Neither the General Counsel nor Respondent called any of the
other employees identified by Stika to testify regarding what Norton had
said. Since these witnesses were equally available to both parties, no ad-
verse inference can be drawn from the failure of either side to call them.
flitchiner Manufacturing Company, 243 NLRB No. 174. sl. op., p.
3
(1979).
BROTHERS THREE CABINETS 837
and that if it did so, they would take their business else-
where.
Norton conceded that he had participated in discus-
sions with the employees about the Union. Moreover, he
never did deny specifically that he had participated in
the Saturday conversations with Packham and Stika, nor
in the October 19 conversation with Stika. However, he
did claim that he did not "think" that he had spoken
with Stika "for quite a while there" after the October 12
layoffs. In fact, on direct examination, Norton testified
that about 3 or 4 weeks after the layoffs he had been
trying to talk to Stika about the Union and that Stika
had avoided talking to him. So, testified Norton, he had
told Stika "I know about it [the Union]; it's nothing
new."' ° According to Norton, Stika had appeared sur-
prised that Norton had known anything about the Union.
Yet, Norton contradicted himself during cross-examina-
tion when-after initially appearing to feign inability to
recall who Stika had been"-he admitted that approxi-
mately, "[a] week or so" after the October 12 layoffs, he
had participated in a discussion with Stika regarding the
Union. Consequently, it would have been inexplicable for
Stika to have been later surprised, as Norton claimed, to
learn that Norton knew about the Union's campaign.
Indeed, as discussedinfra, Wesson admitted that on
Monday, October 16, he had questioned the employees
about their union support. Moreover, Norton acknowl-
edge that he had engaged in a conversation with Stika
when "three or four [employees] left their positions and
came to the bench to get in on my conversation," al-
though Norton claimed that this had taken place "a
couple of weeks" after the October 12 layoffs. In short,
save for the timing, Norton conceded that he had partici-
pated in the type of conversation described by Stika as
having occurred on October 19.
On direct examination, Norton denied that he had ever
told Packham or any other employee that Oatman and
Houk had been fired because of the Union; denied that
he had ever told any employee that Wesson had asked if
he needed a reason to fire anyone because he wanted to
fire Oatman and Houk; and denied that he had ever told
any employee that the plant would close if the Union got
in. Nonetheless, certain of Norton's testimony during
cross-examination tended to confirm the descriptions of
his remarks given by Packham and Stika. For example,
after making an apparent effort to evade answering di-
rectly, he conceded that, as Stika had testified, he had
z" Norton claimed that on Saturday, October 14. one of the employees
had mentioned that the employees were planning to have a union meet-
ing concerning Oatman and Houk However. Norton was unable to recall
which employee had made this purported remark and no employee cor-
roborated Norton's testimony regarding this purported disclosure on Oc-
tober 14
I On direct examination, Norton appeared to have no hesitancy about
Stika's identity when asked by Respondent's counsel if he had ever told
Stika that he (Norton) knev that the employees were trying to form a
union However. on cross-examination. the following occurred:
Q Did you also have discussions with Mr. Stika concerning the
union?
A. I can't place the face right now
Q Do ou remember Mr Stika'
A. What was his first name"
Q Rudy Stika?
A Rudy Yes
said that Wesson did not want anyone throwing stones at
his house. Further, he acknowledge that he had made re-
marks about Respondent's financial plight: "I was talking
about our whole finances, and that it would break our
back at this time. Maybe a year from now I explained to
them we could, but right at this very minute, we
couldn't do it." Moreover, Norton agreed that he had
mentioned that certain customers (who were contractors)
had said that they would take their business elsewhere.
Indeed, notwithstanding his denial that he had told em-
ployees that Respondent might close if the Union
became their representative, during cross-examination, he
specifically admitted having done so. On redirect exami-
nation, in an effort to explain his remark, Norton testi-
fied:
I had told the men one time that anything-not just
the union-anything that would come in that would
cause money problems, would be the straw that
broke the camel's back right now, or we would
have to close up. We would just have to close it right
now if we went union; we couldn't afford it. [Empha-
sis supplied.]
Wesson testified that he had not read the Union's
demand letter until Monday, October 16, when his then
secretary, Cynthia Henninger, had opened the letter and
had brought it to him. Wesson testified that when he
read the letter he had become angry and had registered
disbelief. Henninger, whose father works for the Union,
agreed that Wesson had registered surprise upon reading
the letter. Wesson testified that, in an effort to ascertain
if the Union did represent a majority of the employees,
he had taken a pad, on which he had written the em-
ployees' names, and had spoken to all of the employees,
asking each if he had signed up or voted for the Union
and placing a check mark by the names of those who an-
swered affirmatively. When approached by Wesson,
Stika replied that Wesson had no right to ask such a
question. This admittedly angered Wesson, who retorted
that he could ask anything he wanted and had walked
away, making a mark on his pad.
Packham testified that, when asked, he had told
Wesson that he had not signed anything for the Union.
Either at that time or shortly thereafter, Packham in-
quired if there was anything that he could do to help
Wesson. The latter asked if Packham would put in writ-
ing that he had not signed anything for the Union. Ini-
tially, Packham agreed to do so. However, later that
day, he went to Wesson's office where, according to
Wesson, he "said, no, I didn't sign their paper, so I am
not going to sign your paper." During this conversation,
testified Packham, Wesson had "said that he wan't going
to support anybody that was against him, and he felt like
anybody who was for the union was against him, and
told me to keep it under my hat." According to Pack-
ham, Wesson had also said that "If we got the union in
that he would close up the shop." Wesson denied that he
had ever made either of these statements about those
who did not support him and about closing the shop if
the employees became unionized. However, when asked
if he recalled anything else that had been said, during the
BROTHERS THREE CABINETS
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation in which Packham had said that he would
not sign a paper, Wesson replied that he did not recall
anything else. Packham testified that Henninger had been
present during this conversation. She denied having
heard Wesson say anything to Packham concerning the
subject matter of the Union.
In mid-January 1979, Wesson offered to reemploy
Houk and the latter accepted, returning as a nailer at his
$7-per-hour pay rate. Wesson testified that he had re-
hired Houk,
[b]ecause he was available. I knew he could do the
work. And I didn't have a whole lot of choice be-
cause I needed someone to nail cabinets. I had to
get cabinets out. And I couldn't assume that duty
myself as well as all the others. There is not enough
daylight.
V. ANALYSIS
A. The Alleged Violations of Section 8(a)(1) of the Act
While Packham's memory regarding the comments
made to him by Respondent's officials was not photo-
graphic, several factors tend to support his testimony
about the remarks which he testified had been made to
him by Wesson and Norton. First, Wesson confirmed
Packham's testimony that Wesson had asked if Packham
had signed a card for the Union and if Packham would
be willing to state in writing that he had not done so.
Further, Wesson agreed that while Packham had initially
said that he would prepare such a statement, Packham
had later rescinded his willingness to do so. Consequent-
ly, Wesson's testimony confirmed the basic conversation-
al framework within which, Packham testified, Wesson
had stated that "he wasn't going to support anybody that
was against him," "felt that anybody who was for the
union was against him," and threatened that "if we got
the union in that he would close up the shop."
Second, while Wesson denied having made such state-
ments, he admitted that he did not recall what else had
been said during the conversation in which Packham had
withdrawn his agreement to prepare a written statement
denying that he had signed anything for the Union and
during which Packham claimed that Wesson had made
the foregoing quoted remarks. Consequently, his general
denials tend to be mitigated by his own lack of recollec-
tion regarding what he had said on that occasion.
Third, though Henninger denied generally having ever
heard Wesson say anything to Packham concerning the
subject matter of the Union, she admitted that she had
worked in the same office area as Wesson on October 16
and she did not deny having been present during the ad-
mitted conversation between Wesson and Packham when
the latter had withdrawn his consent to prepare a written
statement concerning his not having signed a card for
the Union. Yet, Respondent did not call upon her to
recite what she had heard Wesson say to Packham on
that occasion nor, for that matter, to even explain wheth-
er she had been paying any attention to what the two
men had been discussing that afternoon. In these circum-
stances, her testimony cannot be relied on o controvert
that of Packham regarding the remarks made to him by
Wesson during that conversation.
Fourth, Wesson's own state of mind was such that it
would not have been inconceivable for him to have ex-
pressed hostility toward the Union and its supporters,
notwithstanding his own normally cautions approach.
For, this had not been an ordinary day for Wesson. He
admitted that he had been angered by receipt of the
Union's demand letter that morning. He conceded that
he had been further angered by Stika's challenge to his
questioning regarding which employees had signed cards
for the Union. Given Wesson's own feelings of anger
that day regarding the Union and the further fact that
Packham was refusing to sign the statement sought by
Wesson-thereby in effect refusing to support Respon-
dent-it is not unlikely that Wesson would have given
vent to his emotions and lashed out at Packham with
threats of what would happen to those who did not sup-
port him.
Fifth, Stika, who had been working with Norton and
Packham on Saturday, October 14, confirmed several of
the remarks that Packham described Norton as having
made during the course of that morning. Thus, like Pack-
ham, Stika testified that Norton had said that Wesson
had inquired if he needed a reason to fire Houk and
Oatman and, after Norton had responded in the negative,
had instructed Norton to fire them. Moreover, Stika con-
firmed Packham's testimony that Norton had discussed
the consequences of unionization on Respondent's em-
ployees, with Stika describing Norton as having said that
Wesson would close if the employees became unionized
and with Packham testifying that Norton had said that
"we would have to do strictly union work and we
wouldn't have any rights as such in the union, and we
wouldn't have anything to say about the work."
Of course, there is a difference in Stika's and Pack-
ham's accounts of the results of unionization as described
by Norton. Moreover, as is pointed out in Respondent's
brief Stika did not confirm every remark which Packham
described Norton as having made that morning. In this
regard Respondent makes much of the fact that, in his
pre-trial affidavit, Packham had stated that Stika had
been present during the course of Norton's remarks. Yet,
the portions of the affidavit that were read during the
hearing do not show that it had been a detailed, step-by-
step, account of the movements and activities of the
three men that morning. Rather, the Board agent who
took the affidavit appeared to have concentrated on the
substance of Norton's remarks without being precise as
to who had been present on each occasion that Wesson
had made a comment. From the description given of the
work taking place that day, it is obvious that each of the
three men had been moving about in the course of their
work activities and that comments had been made over
the course of that morning as they encountered each
other while working. Indeed, Stika testified that, while
he had been working, he had observed Norton speaking
with Packham, but could not hear what was being said.
Accordingly, the fact that Stika did not hear all of what
Norton had said to Packham and the further fact that
Norton had attributed differing adverse results of union-
----
BROTHERS THREE CABINETS 839
ization to Stika and Packham do not serve to refute their
testimonies as to what he had said to them on that day.
Sixth, Norton was not an impressive witness and the
inconsistencies disclosed by a review of his testimony
serve to reinforce my impression, when he testified, that
he was less than reliable. In this regard, while he claimed
that he had surprised Stika 3 or 4 weeks after the Octo-
ber 12 layoffs by showing that he was aware of the
Union's campaign, his testimony in this regard was con-
tradicted both by objective considerations and by his
own testimony at other points. Since Respondent had re-
ceived the Union's demand letter on October 16 and in-
asmuch as Wesson had admittedly questioned every em-
ployee concerning whether they had signed cards for the
Union, it would hardly have made any sense for Stika, as
Norton claimed, to have been surprised at learning 2-1/2
to 3-1/2 weeks later that Norton was aware of the union
activity among the employees. Further, Norton acknowl-
edged having engaged in a conversation regarding the
Union with Stika a week after the layoffs-2 or 3 weeks
earlier than the purported conversation in which Stika
had assertedly displayed surprise at Norton's knowledge
of the Union's campaign. In short, Norton's testimony
concerning Stika's surprise 3 or 4 weeks after the layoffs
when Norton disclosed his knowledge of the campaign
appears to have been designed to fortify his denial of the
remarks attributed to him, rather than to truthfully de-
scribe what had occurred during the October 12 to 19
period.
Similarly, after denying specifically on direct examina-
tion that he had told any employee that the plant would
close if the Union got in, Norton acknowledged on
cross-examination that he had done so. His admission
during redirect that he had said "We would just have to
close it right now if it went union" served clearly to
contradict the general denial which he had made during
direct examination. I do not credit Norton's testimony.
Seventh, as had been true of Wesson, Norton con-
firmed many of the events and remarks attributed to him
by Packham and Stika when, they testified, he had also
made unlawful comments. For example, he agreed that
he had spoken with a group of employees, among whom
was Stika, approximately a week after the October 12
layoffs. He confirmed that he had related Wesson's con-
cern that rocks might be thrown at his home and, fur-
ther, that he had described the financial plight of Re-
spondent, telling the employees of customer reaction to
unionization of Respondent's employees. Moreover, he
admitted ultimately that he had raised the possibility of
closure with the employees.
Neither Packham nor Stika displayed perfect recall
concerning all details of what had been said regarding
the Union by Norton and Wesson. In some respects I felt
that Packham did embellish his accounts of what Wesson
and Norton had told him during the week following the
October 12 layoffs. However, I believed Stika to be a
forthright and candid person. Both his accounts of what
Norton had said, as well as Wesson's and Norton's own
admissions concerning their remarks to employees fol-
lowing those layoffs, tend to corroborate Packham's ac-
counts of the foregoing conversations, which I credit.' 2
Both Stika and Packham testified that Respondent's of-
ficials had said that Respondent would be closed if the
employees became represented by the Union. "It is a
clear violation of the Act for an employer to threaten to
close its place of business if its employees choose repre-
sentation by a union." N.L.R.B. v. Buckhorn Hazard Coal
Corporation, 472 F.2d 53, 55 (6th Cir. 1973). Respondent,
however, argues, in essence, that it was simply making a
prediction concerning "the plain, simple, obvious facts of
economic life" as to the effect of high costs of unioniza-
tion on a financially troubled firm such as Respondent.
The difficulty with this argument is that it is based on a
record devoid of evidence that Respondent had any idea
concerning the demands that the Union would be making
should it become the employees' representative. While an
employer "may even make a prediction as to the precise
effects he believes unionization will have on his company
. . .the prediction must be carefully phrased on the basis
of objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his control."
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618
(1969). Absent any evidence that Respondent knew what
economic demands the Union would make, it can hardly
be said that Respondent possessed objective facts suffi-
cient to enable it to make a lawful prediction as to Re-
spondent's ability to continue in business should the
Union become the employees' representative.
Similarly, Respondent presented no evidence that even
a single customer had, in fact, threatened to withdraw its
business should the employees become represented.
Thus, so far as the record discloses, in making statements
regarding its customers' reactions to unionization of its
employees, Respondent was not merely relaying truthful
information about its customers' intentions. Rather, it ap-
pears to have been utilizing its customers' reports about
the Union's campaign as a device for fortifying its own
warnings of closure should the employees choose to be
represented by the Union.
Therefore, I find that Respondent did threaten em-
ployees with closure should they select the Union as
their bargaining representative, thereby violating Section
8(a)(l) of the Act. Furthermore, inasmuch as, during one
of his conversations with Packham on October 16,
Wesson equated union support with disloyalty to Re-
spondent and impliedly threatened reprisals against em-
ployees who supported the Union, I find that these re-
marks also violated Section 8(a)(l) of the Act.
It is also alleged that Respondent threatened employ-
ees with discharge should they become represented by
a1 The fact that Packham's recollection had been refreshed by his affi-
davit hardly renders him unworthy of belief in view of the passage of
time between these events and the hearing in this matter and in light of
the general frailties of human memory. There is no evidence that his
statements in the affidavit had been untruthful. Respondent's counsel
brought out seemingly every conflict between the affidavit and Pack-
ham's testimony. None of them materially diminished Packham's testimo-
ny regarding what he had been told by Norton and Wesson in the afore-
described conversations. Moreover, while Packham testified that he
would lie to help a friend where "it was really damaging to that person"
(a concession that a liar would hardly make given the obvious purpose
for which Packham was being asked the question), he also testified that
he would not do so under oath.
BROTHERS THREE CABINETS
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. Threats of discharge are inherently destruc-
tive of employee free choice, for "[ilt is difficult to think
of any statement which could be more destructive of the
employees' free choice." Continental Investment Compa-
ny, 236 NLRB 237 (1978). During the course of his Oc-
tober 14 remarks concerning the Union, Norton had told
both Packham and Stika that Wesson had earlier asked if
he needed a reason to terminate Houk and Oatman and,
further, that upon receiving a negative answer, had di-
rected that they be discharged. Given the fact that these
remarks were made in the context of an ongoing conver-
sation concerning the Union and the further fact that
there is no evidence of any other reason why Respon-
dent would have desired to avoid giving a reason to ter-
minate Oatman and Houk, Norton's remark could only
have been construed as an implied statement that they
had been discharged because of their union activities and
support. Indeed, during the course of the morning,
Norton made a specific statement to that effect while
conversing with Packham.
Informing employees that coworkers have been termi-
nated for engaging in union activities violates Section
8(a)(1) of the Act. R. J. Causey Construction Co., 241
NLRB No. 156 (1979).13 Implicit in such a remark is a
warning that a similar fate will befall employees who
engage in similar activities. Therefore, I find, as alleged
in the complaint, that Respondent did violate Section
8(a)(l) of the Act by threatening employees with termi-
nation if they supported the Union.
The complaint also alleges that Norton's remarks of
October 14 created the impression that the union activi-
ties of Respondent's employees were under srveillance.
Stika testified that Norton had initiated the Saturday
morning conversation by stating that he knew that the
employees were trying to start a union. Norton admitted
having made such a remark to Stika, though he attempt-
ed to avoid placing it on October 14 by testifying that it
had occurred 3 or 4 weeks after the October 12 layoffs-
testimony which, as found above, I do not credit. Nor do
I credit his testimony regarding the unkown employee's
disclosure of a union meeting about Oatman and Houk.
In its brief, Respondent argues that the Act is not vio-
lated where an employer merely tells employees that it is
aware that union activities are taking place at the plant,
since "the Board has consistently held that the language
used must intimate that the employer is spying on the
employees." South Shore Hospital, 229 NLRB 363 (1977).
In making a determination as to "whether a respondent
created an impression of surveillance, the test applied by
the Board is whether employees would reasonably
assume from the statement in question that their union
activities had been placed under surveillance." Id. Yet,
South Shore involved an employer's reference to a rumor
about the employees' union activities. It was because of
that rumor that the Board dismissed the alleged impres-
sion of surveillance violation: "Since a rumor is, by defi-
'3 Since this issue was fully litigated and the unfair labor practice com-
mitted by virtue of this remark is related to the issues alleged in the com-
plaint, I find that it may form the basis for an additional finding that Re-
spondent violated Sec. 8(a)(1) of the Act. See Alexander Dawson, Inc., d/
b/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977), enfd. 586
F.2d 1300 (9th Cir. 1978)
nition, talk or opinion widely disseminated with no dis-
cernible source, employees could not reasonably assume
from a respondent's knowledge of such a rumor, without
more, that their union activities had been placed under
surveillance." Id. at 363--364. Similarly, the Board has
been unwilling to find that an employer created the im-
pression of surveillance where the union activity referred
to by the employer had been carried out openly or, in
other cases, where the employees' union sympathies are
a matter of common knowledge throughout the plant.
See, e.g., Aero Corporation, 237 NLRB 455, fn. 2 (1978).
In the instant case, however, there is no evidence that
any rumors concerning the Union had been circulating in
Respondent's facility. To the contrary, the record dis-
closes that the union activists had made efforts to con-
ceal their activities from Respondent. Accordingly,
"there is nothing in the record to suggest that [Norton's]
knowledge of those activities could have been acquired
through casual and normal observation of employees."
Keystone Pretzel Bakery, Inc., 242 NLRB No. 77, sl. op.,
p. 4 (1979). "The accuracy of [Norton's statement that
the employees were engaging in union activities] reason-
ably tended to impress upon [Stika] that [Norton] was
maintaining surveillamce of the employees' union activi-
ties, including possibly [Stika's] own." Jim Baker Truck-
ing Company, 241 NLRB No. 14, sl. op., p. 4 (1979).
Norton did mention that customers had been aware of
the union activity occurring at Respondent, thereby
giving rise to a possible inference that the customers had
been the source of Norton's knowledge of the campaign.
However, Norton did not claim that he had first learned
of the campaign from Respondent's customers. His use of
the word "also" in his comment to Stika indicates that
customers had been but an additional, rather than the
sole, source of Respondent's knowledge of the employ-
ees' efforts to obtain representation. Therefore, I find
that by his remark to Stika on Saturday, October 14,
Norton created the impression that the union activities of
Respondent's employees were under surveillance.
The complaint also alleges that Wesson's questioning
of the employees on Monday, October 16, as to whether
they had signed cards for the Union, violated Section
8(a)(1) of the Act. Respondent argues that this question-
ing was not unlawful inasmuch as it had been undertaken
to verify the claim of majority support made by the
Union in its demand letter, first read by Wesson earlier
that same morning. Although an employer is permitted
to poll its employees in an effort to verify a union's claim
of majority support, see Struksnes Construction Co., Inc.,
165 NLRB 1062 (1967), this privilege must be balanced
against the inherent tendency of such questioning to
create "fear of reprisal in the mind of the employee if he
replies in favor of unionism." Bushnell's Kitchens, Inc.,
222 NLRB 110 (1976); see discussion World Wide Press,
Inc., 242 NLRB No. 40, sl. op., p. 34 (ALJD) (1979).
Here, so far as the record discloses, Wesson questioned
each of the employees without telling them of his reason
for asking these questions. He gave no assurances against
reprisals based on the answers which they gave. Not
only were the employees not polled by secret ballot, but
they were not told that they had a right to refuse to
answer Wesson's questions. To the contrary, Wesson's
BROTHERS THREE CABINETS 841
already angered state became heightened when Stika
challenged his right to ask such questions of the employ-
ees. Therefore, I find that by questioning the employees
as to whether they had signed cards for the Union, Re-
spondent violated Section 8(a)(l) of the Act, since "the
test is whether the questioning tends to be coercive, not
whether employees are in fact coerced." N.L.R.B. v.
Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970).
B. The Motivation for the Discharges of Oatman and
Houk
Two questions must be addressed in this section. First,
it must be determined whether Oatman's and Houk's
union activities influenced Respondent's decision to lay
them off on October 12. Second, if so, it must then be
determined whether the layoff of Oatman, a supervisor,
constituted a violation of the Act. A preponderenace of
the evidence warrants an affirmative answer to the first
question for several reasons.
First, Oatman had been clearly the most active propo-
nent on behalf of the Union. It had been he who had
asked the employees if they were interested in contacting
a union following Wesson's rebuff of their request for a
meeting to discuss work-related problems. It had been
from Oatman's home that the initial telephone contact
with the Union had occurred and the initial meeting with
representatives of the Union had been held there. More-
over, it had been to Oatman that the Union had given
the authorization cards and brochures that were later dis-
tributed to employees of Respondent who had not at-
tended that meeting.
While not nearly as active as Oatman, Houk had nev-
ertheless played a not insignificant role in the organizing
campaign. He had been the employee who had made the
initial suggestion that the employees contact a union fol-
lowing Wesson's refusal to meet with them. Thus, it had
been on the basis of Houk's suggestion that Oatman had
acted in polling the employees regarding their feeling
about, as Houk suggested, contacting a union. Moreover,
once at Oatman's home, it had been Houk who had tele-
phoned the Union, thereby being the person who had
made the initial contact from which the Union's organiz-
ing campaign among Respondent's employees had fol-
lowed. With the matter in this posture, it matters not
whether Houk had later distributed an authorization card
to Davenport, for Houk and been instrumental in the ini-
tiation of the unionization effort and, while not nearly as
active as Houk, there is no evidence that any other em-
ployee had played as nearly an effective role in initiating
that campaign as had Houk. Therefore, the evidence
warrants the conclusion that Oatman and Houk had been
the foremost proponents of the Union at Respondent
prior to October 12. "The discharge of employees who
are actively engaged in union affairs gives rise to an in-
ference of violative discrimination." N.L.R.B. v. Mont-
gomery Ward & Co., Incorporated, 554 F.2d 996, 1002
(10th Cir. 1977).
Second, both Wesson and Norton denied possessing
any knowledge of the Union's campaign prior to october
14. A "finding that an employer knew of ... union ac-
tivity may be supported by circumstantial evidence."
Famet, Inc. v. 'L.RB., 490 F.2d 293, 295 (9th Cir.
1973). Here, Houk and Oatman had been the initiators of
the Union's campaign. They were laid off shortly after
that campaign had gotten underway. The campaign had
been initiated, with Houk's suggestion that a union be
contacted, while the employees were at Respondent's
San Jacinto facility. Oatman's postmeeting distribution of
cards and brochures had also taken place there where,
according to Wesson's estimate, only approximately 20
employees had been employed in the shop at the time.
Thus, "the inference that management knew of this
union activity could rest on the small size of the work
force." NV.L.R.B. v. Sutherland Lumber Company, Inc.,
452 F.2d 67, 69 (7th Cir. 1971) (35 to 40 employees); see
also A. J. Krajawski Manufacturing Co., Inc. v. N.L.R.B.,
413 F.2d 673, 676 (Ist Cir. 1969) (47 employees voted in
the representation election in that case). Of course, the
employees attempted to conceal their activity from Re-
spondent. Nevertheless, "the fact that an employee has
taken pains to conceal his organizing activity from man-
agement may reduce, but does not necessarily eliminate,
the weight to be accorded the smallness of the plant." A
to Z Portion Meats, Inc., 238 NLRB No. 57 (1978).
Most significant in this regard are Norton's remarks to
Packham and Stika on Saturday, October 14, when he
had told them that Respondent had been aware of the
Union's campaign and, both by implication and express-
ly, that Oatman and Houk had been laid off because of
their union activity. The effect of these remarks was
such that "[i]t eliminated any question concerning the in-
trinsic merits as to each of the individual discharges, the
precise evidence showing management's knowledge that
any or all were engaged in the union activity, or other
causes suggested as the basis for the discharge."
N.L.R.B. v. L. C. Ferguson, et. al. d/b/a Shovel Supply
Corporation, 257 F.2d 88, 92 (5th Cir. 1958). In this re-
spect, it is noteworthy that Norton had acknowledged
that Respondent's customers had learned of the Union's
campaign notwithstanding the employees' efforts to con-
ceal it. Thus, not only were the customers available as a
source of information concerning its existence, but the
same events that had led those customers to its discovery
would likely have been apparent to Respondent. As
Wesson's concern with the identities of employees who
had signed cards for the Union demonstrates, 14 once Re-
spondent had been alerted to the campaign's existence, it
is unlikely that it would have been unconcerned about
which employees had been responsible for generating it.
Therefore, I find that a preponderance of the evidence
supports the conclusion that Respondent possessed
knowledge of both the Union's campaign and of Houk
and Oatman's role in initiating it prior to their layoffs.
Third, as found above, Respondent not only was hos-
tile toward the concept of representation of its employ-
ees, as admitted expressly by Wesson who testified that
'4 The fact that Wesson showed surprise, as Henninger testified, upon
reading the Union's demand letter is not inconsistent with a finding that
he had possessed prior knowledge of the campaign to organize Respon-
dent's employees For, at no point did she testify that the source of his
surprise had been the acquisition of knowledge that the campaign existed.
It is equally plausible that he had been surprised to learn from the letter
that the campaign had progressed to the point where the Union felt con-
fident that it enjoyed the support of a majority of Respondent's employ-
ees
BROTHERS THREE CABINETS
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt of the demand letter had angered him, but it en-
gaged in a campaign of unlawful conduct--featuring
threats of closure and discharge, creation of the impres-
sion of surveillance of employees' union activities, and
coercive interrogations-to undermine the employees'
support for the Union. Such willingness to resort to un-
lawful conduct to defeat the Union evinces "unmistak-
able overtones of a purpose to discriminate and retaliate
because of union membership." N.L.R.B. v. Ferguson,
supra, 257 F.2d at 89; see also N.L.R.B. v. Gerald G.
Gogin, d/b/a Gogin Trucking, 575 F.2d 596, 601-602 (7th
Cir. 1978).
Fourth, it is not disputed that Respondent had been
experiencing financial difficulties in October. Norton
made clear that Respondent had viewed the Union as a
threat to Respondent's continued viability in light of the
economic demands that it might make. Accordingly, as it
viewed the matter, Respodnent had every reason to act
quickly to terminate that campaign, thereby precluding
the possibility of being faced with what it viewed as po-
tentially unreasonable economic demands that would
pose a further threat to its continued operations.
Fifth, Norton admitted-impliedly to Stika and Pack-
ham and expressly to Packham on October 14-that it
had been their activity on behalf of the Union that had
led Respondent to select Oatman and Houk for layoff.
Certainly Norton would have been privy to such infor-
mation regarding the reasons for their selection. Under
Respondent's defense, he had been the official who had
selected them. Not only were such statements evidence
of hostility toward Oatman and Houk because of their
activity on behalf of the Union, but they constituted an
outright confession of Respondent's retaliatory motive.
See, e.g., N.L.R.B. v. Ferguson, supra, 257 F.2d at 92,
and N.L.R.B. ,v. John Langenbacher Co., 398 F.2d 459,
463 (2d Cir. 1968), cert. denied 393 U.S. 1(49 (1969).
"The Courts pay special attention to such statements
against interest when in the unusual case it occurs that a
party admits that his conduct, otherwise ambiguous, is
for improper purpose or objective." Brown Transport
Corp. v. N.L.R.B., 334 F.2d 30, 38 (5th Cir. 1964).
Indeed, Norton's admission "eliminated any question
concerning the intrinsic merits as to each of the individ-
ual discharges . . . or other cases suggested as the basis
for the discharge[s]." N.L.R.B. v. Ferguson, supra.
Close examination of Respondent's defense for select-
ing Oatman and Houk to be among those laid off on Oc-
tober 12 discloses a series of infirmities. It is undisputed
these had been the two most experienced persons em-
ployed by Respondent. In addition to being the foreman,
Oatman is a proficient nailer. As Wesson acknowledged,
Respondent "had a very difficult problem" locating ex-
perienced personnel. Moreover, not only were Oatman
and Houk Respondent's most experienced workers, they
were also Respondent's highest paid workers. Wesson
conceded that a worker's rate of pay "is a fairly good
indication of his ability to produce for" Respondent.
Given these facts, it hardly makes sense for Respondent
to have met its economic difficulties by laying off its two
most experienced and capable workers.
Apparently perceiving this inconsistency, Wesson testi-
fied that Respondent's very reason for selecting Oatman
and Houk for layoff had been their high rates of pay:
"The main reason was money. We couldn't afford to pay
salary." Yet, as stated above, according to Respondent's
defense it had been Norton, not Wesson, who had made
lhe decision to include Oatman and Houk among those
laid off on October 12. Of course, Wesson claimed that
he had "had inputs into" the decision to select Oatman
and Houk for layoff and, further, that he and Norton had
'discussed the need for layoffs and the saving of payroll
every week, and Oatman's name came up because he was
supervisor and Bill could do very easily if he would do,
Oatman's job." However, while Norton agreed that he
had spoken with Wesson regarding the need to cut back
personnel, he testified that "I didn't mention names; I
just told him I was cutting down; I was pulling back."
Not only did Norton contradict wesson's testimony re-
garding the substance of their prelayoff discussions of the
desirability of laying off Oatman, but, as quoted in sec-
tion IV, supra, his reasons for selecting Houk for layoff
were not, as Wesson claimed, solely cost-based. Conse-
quently, Wesson's and Norton's testimonies conflicted, at
least partially, as to both the substance of their prelayoff
discussions and as to the reasons for Houk's inclusion
among those laid off on October 12.
In addition, the reasons advanced by Norton for se-
lecting Oatman and Houk for layoff disclose significant
inconsistencies when measured against undisputed objec-
tive facts present in this case. As quoted in section IV,
supra, Norton testified that he had not considered offer-
ing Oatman a lesser paying job because "I just figured he
didn't want to step down, you know, to a lower part of
the job and take less money too." Yet, it is undisputed
that when he and Houk had spoken with Norton and
Wesson on October 12, Oatman had, in effect, offered to
do precisely that, telling the two management officials
that they should "keep your top men, the one with the
most experience with less pay." Notwithstanding Oat-
man's experience and capability, Norton and Wesson had
simply ignored his suggestion, ultimately telling Oatman
that "it was best for the shop" that he and Houk be laid
off.1 5
Regarding his basis for selecting Houk for layoff,
Norton recited a litany of complaints. Indeed, it does
appear that Houk had been a less than model employee.
In fact, he had previously been fired by Respondent be-
cause of undependability. Nevertheless, the fact remains
that after he had been rehired, Respondent had nt dis-
played concern about his less than perfect work habits,
for there is no evidence that he was ever warned or dis-
ciplined thereafter for these deficiencies. To the con-
trary, despite his problems, Houk was paid the highest
wage rate of any of Respondent's employees-an indica-
tion, under Wesson's above-noted standard, of his high
capability. "[A]n employer who freely tolerates such
conduct may not suddenly find it offensive only when
committed by an employee who exercises his right to
engage in concerted activity." Apico Inns of California,
Inc. d/b/a Holiday Inn of San Bernardino, 212 NLRB 280
(1974), enfd. as modified 512 F.2d 1171 (9th Cir. 1975).
t' Norton made no effort to explain his basis for feeling that it was
"best for the shop" to lay off Respondent's two most experienced and
capable workers.
BROTHERS THREE CABINETS 843
See also Shasta Fiberglass, Inc., 202 NLRB 341 (1973).
Moreover, it is significant that in January 1979, Houk
had been rehired by Respondent at the same rate of pay
that he had been receiving prior to his October 12
layoff-a fact which tends to refute both Respondent's
assertion of dissatisfaction with his work habits and with
its need to eliminate highly paid employees. The effort of
Respondent to explain this inconsistency appeared con-
trived and was unconvincing.
In conclusion, there is no dispute concerning Respon-
dent's economic plight and the logic of its decision to
reduce costs by laying off personnel. The dispute posed
in the instant case revolves around the selection of
Oatman and Houk for inclusion among the group laid off
on that date. Given the factors set forth above and the
totality of the circumstances presented in the instant
case, I find that a preponderance of the evidence does
support the General Counsel's allegation that Oatman
and Houk had been selected for inclusion among those
laid off on October 12 because, as Norton told Packham
on October 14, of their role in initiating the Union's cam-
paign to organize Respondent's employees. Having
reached this conclusion, consideration must be afforded
to the issue of whether Respondent violated the Act by
selecting Oatman in light of his supervisory status under
Section 2(11) of the Act.
Analysis in this area must commence by focusing on
the fundamental proposition that "Taft-Hartley amend-
ments of the National Labor Relations Act excluded su-
pervisors from the protections of the Act and thus freed
employers to discharge supervisors without violating the
Act's restraints against discharges on account of labor
union membership." Beasley v. Food Fair of North Caroli-
na, Inc., 416 U.S. 653, 654-655 (1974). "Supervisory em-
ployees are therefore now outside the coverage of the
Act." Westinghouse Electric Corporation, 75 NLRB 1
(1947). The policy underlying this exclusion is one which
is designed to restore the distinction between manage-
ment and labor by requiring that degree of loyalty to
management which acceptance of a supervisory position
requires to achieve the objectives of Federal labor legis-
lation. See discussion, J. D. Lunsford Plumbing, Heating
and Air Conditioning, Inc., and Lunsford Brothers Me-
chanical, Inc., 237 NLRB 128, 131 (1978). In short, Con-
gress sought to assure the employer of the loyalty of his
supervisors by reserving in him "the right to discharge
such supervisors because of their involvement in union
activities or union membership." Florida Power & Light
Co. v. International Brotherhood of Electrical Workers,
Local 641, et al., 417 U.S. 790, 808 (1974).
Nevertheless, there are certain situations in which em-
ployer conduct, unlawful if directed against employees,
will constitute a violation of the Act when directed
against supervisors and will give rise to the need for re-
medial relief beneficial to the affected supervisors. See
Harvey's Wagon Wheel, Inc., d/b/a Harvey's Resort Hotel
& Harvey's Inn, 236 NLRB 1670, 1671 (1978), Rohr In-
dustries, Inc., 220 NLRB 1029, 1035-36 (1975). Of the
various possibilities listed in those cases for a supervisory
discharge to constitute a violation of the Act, the Gener-
al Counsel bases his argument in the instant case on the
one which makes it a violation if the supervisor's dis-
charge constitutes an "integral part of a pattern of con-
duct aimed at penalizing employees for their union ac-
tivities." Thus, in his brief, the General Counsel argues
that "the discharge of Oatman was part of a total pro-
gram of Respondent designed to rid its plant of union ac-
tivists."
Were this a case in which Respondent had done no
more than lay off Oatman and Houk, without more, I
would be inclined to dismiss the allegation pertaining to
Oatman's layoff for, the Board has held recently that
simply because a supervisor is included among a group
of employees against whom a single all-encompassing
discriminatory act is directed does not, of itself, suffice
to make that action, insofar as it pertains to the supervi-
sor, "an integral part of a pattern of conduct aimed at
penalizing employees for their union activities." See
Long Beach Youth Center, Inc., a/k/a Long Beach Youth
Home, 230 NLRB 648 (1977), Sibilio's Golden Grill, Inc.,
227 NLRB 1688 (1977). "[I]dentity of time and nature of
Respondent['s] action . . . will not serve to provide the
nexus needed to satisfy the 'integral part' exception." J
D. Lunsford Plumbing, supra at 130. This result is not al-
tered by the fact that Oatman had been acting to ad-
vance "the employees' job interests," Sibilio's Golden
Grill, supra, nor because he had been acting "in support
of the employees' economic . . . goals." Long Beach
Youth Center, supra at 650. Moreover, that result is not
changed simply because Oatman had been the person
who had been an "instigator" or the leading activist on
behalf of the Union. Sibilio's Golden Grill, supra, Dexter
Foods, Inc., d/b/a Dexter IGA Foodliner, 209 NLRB 369
(1974).
However, the question of what result would be war-
ranted regarding Oatman had Respondent done no more
than discharge him along with Houk need not be
reached in the context of this case. For, as found above,
Respondent subsequently engaged in a series of actions
designed to impress its opposition to the Union upon its
employees and to undermine their support for the Union.
Thus, both Wesson and Norton expressed hostility
toward the concept of unionization of Respondent's em-
ployees. Indeed, Wesson made this abundantly clear by
telling Packham that "he wasn't going to support any-
body that was against him, and he felt like anybody who
was for the union was against him." Both Wesson and
Norton threatened that if the Union were successful in
organizing Respondent's employees, closure would
follow. Moreover, as found above, Norton expressly told
Packham and implicitly told Stika as well that both
Oatman and Houk had been laid off because of their
union activities, thereby implicitly threatening that a
similar fate would befall employees who engaged in like
conduct. While some of these statements were made to
but one of Respondent's employees and others to only
two employees, Norton was a high-ranking official of
Respondent and Wesson was its owner, an organizing
campaign was in progress, their remarks pertained direct-
ly to that campaign and, accordingly, their comments
could "reasonably be expected to have been disseminated
and discussed among [Respondent's] employees." Super
Thrift Markets, Inc. t/a Enola Thrift, 233 NLRB 409
(1977); see also Hitchiner Manufacturing Company, 243
BROTHERS THRE CAINETS
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB No. 174 (1979). Indeed, there has been no show-
ing that this had not been the fact anf given the small-
ness of Respondent's employee complement, it is unlikely
that the effects of this unfair labor practices might be
spent because of the sheer numbers involved." Ann Lee
Sportswear, Inc. v. N.L.R.B., 543 F.2d 739, 744 (I0th Cir.
1976).
The "integral part" exception applies specifically to
situations where an employer uses a supervisor's dis-
charge to discourage union activities in general among
its employees. In such situations, "a nexus eist[s] be-
tween the actions directed at the supervisors and the
impact upon employees, such that the supervisors had
served, in effect, as conduits for actions aimed ultimately
at intimidating or retaliating against employees." J. D.
Lunsford Plumbing, supra, 237 NLRB 128, 129 and cases
cited therein. Here, the effect of Respondent's post-Octo-
ber 12 remarks to its employees was to impress on them
Respondent's opposition to the Union, to warn them of
the adverse consequences to their employment that
would flow from unionization, and to hold out the lay-
offs of one of their number (Houk) plus one occupying a
higher position than they (Supervisor Oatman) as specific
illustrations of Respondent's willingness to retaliate
against them by severing their employment if they per-
sisted in supporting the Union. Thus, Oatman's layoff
became part of Respondent's campaign to discourage em-
ployee support for the Union, thereby serving as a con-
duit for actions aimed ultimately at intimidating employ-
ees. Therefore, I find that, by laying off Oatmnan on Oc-
tober 12, Respondent violated Section 8(a)(1) of the Act.
V. THE EFFECTS 01: IHE UNFAIR LABOR PRACTICE S
UPON COMMERCE
The activities of DRW Corporation d/b/a Brothers
Three Cabinets, set forth above, occurring in connection
with its operations described in section I, abcve, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States tand tend to
lead, and have led, to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. DRW Corportaion d/b/a Brothers Three Cabinets
is an employer within the meaning of Section 2(2) of the
Act, engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 1959, San Bernardino-Riverside-Imperial
Counties District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening to close if its employees chose to be
represented, by telling employees that other persons had
been discharged for instigating the Union, by threatening
employees with discharge and other reprisals if they sup-
ported the Union, by equating union support with disloy-
alty, by creating the impression that employees' union
activities were under surveillance, and by interrogating
employees regarding their union activities, DRW Corpo-
ration d/b/a Brothers Three Cabinets violated Section
8(a)(1) of the Act.
4. By laying off Bradley Houk on October 12, 1978,
DRW Corporation d/b/a Brothers Three Cabinets vio-
lated Section 8(a)(3) and (1) of the Act, and by laying off
David Oatman on October 12, 1978, and refusing to rein-
state him thereafter, DRW Corporation d/b/a Brothers
Three Cabinets violated Section 8(a)(l) 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
Having found that DRW Corporation d/b/a Brothers
Three Cabinets engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act.
DRW Corportion d/b/a Brothers Three Cabinets will
be required to offer David Oatman immediate reinstate-
ment to his former position of employments or, if that
position no longer exists, to a substantially equivalent po-
sition without prejudice to his seniority or other rights
and privileges, dismissing, if necessary, anyone who may
have been assigned or hired to perform the work that
Oatman had been performing prior to his layoff on Octo-
ber 12, 1978. Additionally, DRW Corporation d/b/a
Brothers Three Cabinets will be required to make
Oatman and Bradley Houk whole for any loss of earn-
ings they may have suffered by reason of their unlawful
layoffs on October 12, 1978, with backpay to be comput-
ed on a quarterly basis, making deductions for interim
earnings, and with interest to be paid on the amounts
owing and to be computed in the manner prescribed in
F W Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corportion, 231 NLRB 651 (1977); see, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962), enforcement denied on different grounds 322
F.2d 913 (9th Cir. 1963).17
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' l
The Respondent, DRW Corporation d/b/a Brothers
Three Cabinets, San Jacinto, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with closure, discharge,
and other reprisals if they choose to be represented, tell-
ing employees that other persons have been discharged
for instigating a union, equating union support with dis-
"l In his brief, counsel for the General Counsel states that "Respon-
dent has reinstated" Houk.
17 General Counsel's request for a remedial interest rate of 9 percent
on backpay is denied. See Southern California Edison Company, 243
NLRB No. 62, fn. 1 (1979).
18 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.
BROTHERS THREE CABINETS 845
loyalty, creating the impression that employees' union
activities are under surveillance, and interrogating em-
ployees concerning their union sympathies and activities.
(b) Laying off or otherwise discriminating against em-
ployees with regard to hire or tenure of employment of
any term or condition of employment for engaging in ac-
tivities on behalf of a labor organization or for engaging
in activity protected by Section 7 of the Act.
(c) Laying off supervisors as a means of intimidating
employees because those employees engaged in activities
on behalf of a labor organization or in activities protectd
by Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer David Oatman immediate and full reinstate-
ment to his former position of employment, dismissing, if
necessary, anyone who may have been hired or assigned
to perform the work that he had been performing prior
to October 12, 1978, or, if his former position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make Oatman and Bradley Houk whole for any loss of
pay they may have suffered as a result of the discrimina-
tion, in the manner set forth above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its San Jacinto, California, facility copies of
the attached notice marked "Appendix."' 9 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by its authorized rep-
resentative, shall be posted by DRW Corporation d/b/a
Brothers Three Cabinets immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by DRW Corporation d/b/a
Brothers Three Cabinets to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent have taken to comply herewith.
g9 In the e ent that this Order is enforced hy a Judgment of a United
States Court of Appeals, the rs ords in the notice reading "Posted h
Order of the National I.abor Relalii Ts Board" shall read "Posted Purs)u-
ant to a Judgment of the Unlited St ates Court of Appeals EnforTing an
Order (if the National I abor Relationls 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 Act, as amended,
gives all employees the following rights:
To organize themselves to form, join, or as-
sist labor organizations
To bargain as a group through a represenative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity.
WE WILL NOr threaten you with closure of our
facility, discharge, or other reprisals if you select
Local 1959, San Bernardino-Riverside-Imperial
Counties District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization, as your
collective-bargaining representative.
WE WILl. NOT tell you that other persons have
been discharged for contacting or supporting a
labor organization.
WE Wll.l. NOT tell you that we equate support of
a labor organization with disloyalty to us.
WE WIILL NOT create the impression that your ac-
tivities on behalf of the above-named or any other
labor organization are under surveillance.
WE WILL NOT interrogate you concerning your
union sympathies and activities.
WE WII.L NOT lay off or otherwise discriminate
against you with regard to hire or tenure of em-
ployment or any term or condition of employment
for engaging in activities on behalf of the above-
named or any other labor organization nor for en-
gaging in activity protected by Section 7 of the
Act.
WE WILl. NOT lay off supervisors as a means of
intimidating you because of your activities on behalf
of a labor organization or for engaging in activity
protected by Section 7 of the Act.
WE WIl. NOT in any like or related manner in-
terefere with any of your rights set forth above
which are guaranteed by the Act.
WE WI. offer David Oatman immediate and full
reinstatement to his former position, dismissing, if
necessary, anyone who may have been hired or as-
signed to perform the work which he had been per-
forming prior to the time that he was laid off on
October 12, 1978, or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him and Bradley Houk, whom x'e
have already reinstated, whole for any loss of pay
they may have suffered as a result of our discrimi-
nation against them.
DRW CORPORATION D)/B/A BROTHERS
THREE CAHINIIS
BROTHERS THREE CABINETS