Ceilheat, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1968

173 N.L.R.B. 853 (N.L.R.B. 1968)

CEILHEAT, INC. 853
Ceilheat , Inc. and International Brotherhood of Elec-
trical Workers , AFL-CIO, Local Union No. 760.
Case 10-CA-7131
November 19, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS,
AND ZAGORIA
On May 20, 1968, Trial Examiner Robert E. Mullm
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that Re-
spondent had not engaged in certain other unfair
labor practices and recommended dismissal of those
allegations of the complaint. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner with the exception discussed herein.
We find merit in the exception of the General
Counsel to the Trial Examiner's dismissal of the
allegation in the complaint that Respondent discrimi-
natorily discharged employee Jerry Huffaker.
Huffaker had been employed as a sheetmetal
worker since August 1963, and at the time of his
discharge he was receiving the top pay_ in his job
classification. Prior to the incident for which he was
purportedly discharged, Huffaker had never engaged
in a breach of any company rule. Huffaker signed a
union card around the middle of September 1967 and
on or about October 1, 1967 he discussed his
prounion views with foreman Frank Jenkins.
Huffaker was discharged October 4, 1967, purport-
edly for having taken sick pay for a day when he was
employed by a private contractor some distance from
Respondent's plant. The facts leading up to his
discharge are these:
On the night of March 16, 1967, Huffaker tele-
phoned the home of foreman Thurman Cate to report
that he would not be at work the following day, a
Friday. Although Huffaker gave no indication at the
time of his call to Cate's wife that he wanted to be
put on sick leave, Cate nevertheless listed him as being
sick for that day. In any event, on the regular payday
for the period which included March 17, Huffaker
received a check for the entire week's work. Huffaker
accepted the check.
The record shows that on March 17, Huffaker had
accompanied his brother-in-law to Black Mountain,
North Carolina, and had helped him in installing tile
on that day and the following day. On the latter day,
March 18, Huffaker sustained an injury to his knee
which required medical treatment. Huffaker sub-
mitted a claim for reimbursement of $10 that he had
paid the attending physician. Said claim was sub-
mitted through the company sponsored group health
insurance policy, the premiums for which were paid
in part by Respondent and in part by the employee.
A regular form was prepared for Huffaker's claim and
clearly showed that he was injured while working in
North Carolina and showed also the cause and nature
of the injury. The form was approved April 5, 1967
by H. T. Harris, Respondent's chairman of the board.
Respondent admits that its sick leave plan had been
abused and that it was concerned about the abuses for
some time. In fact, plant manager Williams had issued
some seven or eight written reprimands for abuse of
the sick leave plan, and Respondent had modified its
bonus plan to penalize an employee for use of sick
leave. The record shows that about 3 months after
Huffaker's discharge, an employee received a 4-day
suspension for reporting sick and later that day
participating in a television program.
In mid-summer of 1967, Huffaker's immediate
supervisor, Jimmy Hickman, was alerted to the fact
that Huffaker had drawn pay for a day when he was
not sick and had actually been working for another
employer. Hickman made no report of this incident
until on or about October 1, 1967. It was around this
time that Huffaker had discussed his prounion views
with foreman Jenkins, and Hickman had inquired of
foreman Cate as to whether Cate had heard that
Huffaker had said that the only way he would forget
about the Union was for the company to get rid of
him (Hickman) and plant manager Whitfield Williams.
In addition, the Union, by letter dated October 2,
1967, had demanded recognition as the collective-
bargaining agent of Respondent's employees and, on
October 4, 1967, had filed a representation petition
with the Board.
As we view the facts herein, it appears that
Hickman would have been willing to have forgotten
1 In adopting the Trial Examiner 's conclusion concerning the testimony concerning statements made to him by employee Garnet
discharge of employee Don Dills, we place no reliance on Dills' Smith.
173 NLRB No. 127
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the March 17 incident had it not been for the
advent of the Union and his feeling that a potential
danger to his own job security existed. Respondent
was aware of Huffaker's prounion views at the time of
his discharge and was also aware of the Union's
demand for recognition. In these circumstances,
Respondent was willing to apply the extreme penalty
of discharge to an employee because of abuse of its
sick leave plan for the first and only time despite the
fact that its sick leave plan knowingly had been
abused by other employees, and was willing to apply
such a penalty to an employee who theretofore had
never violated a company rule. Moreover, Respondent
was reaching back for an incident of 6 months'
standing, and known to Respondent almost as long, as
evidenced by the approval of Huffaker's claim for
medical reimbursement by Respondent's chairman of
the Board. On these facts, it is clear that Respond-
ent's alleged justification for Huffaker's discharge is in
fact a pretext designed to cover its real motivation of
ridding itself of a union adherent in the midst of a
union organizing campaign.
By such conduct, Respondent violated Section
8(a)(3) and (1) of the Act. Accordingly, we shall
order Respondent to offer Jerry Huffaker immediate
and full reinstatement to his former or a substantially
equivalent position, without prejudice to any senior-
ity or other rights and privileges previously enjoyed.
In addition, Respondent shall make him whole for
any loss of pay he may have suffered by reason of the
discrimination against him, by paying to him a sum of
money equal to that which he normally would have
earned from the date of his discharge to the date of
his reinstatement, less his net earnings during the said
period. The backpay provided for herein shall be
computed on a quarterly basis, and shall carry interest
at the rate of 6 percent per annum.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner. This case was heard
in Knoxville, Tennessee, on February 29 and March 1, 1968,
pursuant to charges duly filed and served,' and a complaint
issued on January 18, 1968 The complaint presents questions
as to whether the Respondent violated Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended. In its
answer, duly filed, the Respondent conceded certain facts with
respect to its business operations, but it denied all allegations
that it had committed any unfair labor practices
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close of the
hearing and to file briefs. Oral argument was waived by the
parties On April 9, 1968, the General Counsel and the
Respondent submitted briefs. A motion to dismiss, made by
the Respondent at the close of the hearing, was taken under
advisement It is disposed of as appears hereinafter in this
decision
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the Trial
Examiner makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent , a Tennessee corporation , with an office
and place of business located at Concord in that State, is
engaged in the manufacture and wholesale distribution of
electrical heating equipment . During the past calendar year, a
representative period , the Respondent sold and shipped fin-
ished products valued in excess of $50,000, directly to
customers located outside the State of Tennessee . Upon the
foregoing facts the Respondent concedes , and the Trial
Examiner finds, that Ceilheat, Inc., is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Ceilheat, Inc., Concord,
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order with the following exception:
Section 2(a) of the Recommended Order is
amended to add the name of Jerry Huffaker and to
change the word "his" to "their" in pertinent places,
and also the word "him" to "them."
The third indented paragraph of the notice is
hereby amended to reflect the same changes.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Examiner finds,
that International Brotherhood of Electrical Workers, AFL-
CIO, Local Union 760 (herein called Union, or Local 760), is a
labor organization within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction, The Issues
During the period in question, the Respondent's plant,
located a short distance from Knoxville, Tennessee, had
approximately 165 employees At all times material herein the
following are admitted to be supervisors within the meaning of
the Act H. T. Harris, chariman of the board of directors,
James E Goff, president, Jack Witherspoon, vice president in
I The charge was filed on October 27, 1967.
CEILHEAT, INC. 85 5
charge of engineering, Robert Ely, Jr., vice president and
general sales manager, Whitfield Williams, plant manager,
Jimmy Hickman, foreman of the sheet metal department, R
C Tipton, foreman of the assembly department, and Frank
Jenkins, foreman of the filling department
The principal issues litigated in this case are (1) whether
the Respondent discriminatorily terminated employees Don
Dills and Jerry Huffaker, in violation of Section 8(a)(3) of the
Act; and (2) whether Foreman Jimmy Hickman engaged in
unlawful interrogation of an employee in violation of Section
8(a)(1) of the Act
B Background
Prior to the organizational campaign out of which the
present proceeding arose, there had been at least one earlier
attempt by Local 760 to secure a majority among the
Respondent's employees This was in 1966 2
At some point after the 1966 campaign began, Board
Chairman Harris, called a meeting of the employees at which
he asked them to voice their complaints. Employee Don Dills
testified that Harris introduced this subject with the statement
that he assumed there were problems since the employees had
become interested in a union President Goff testified that
prior to the meeting one of the employees told him that the
Union had secured enough signed cards to have an election.
According to Goff, the meeting was held because of this report
on organizational activity
About 18 employees attended, and about half of them
enumerated various grievances Dills was one of those present
who criticized the Respondent's policies by telling Harris and
Goff that the employees wanted a pension plan and some type
of job security Many registered objections about Plant
Manager Williams and Foreman Hickman According to Goff,
during the meeting it developed that the principal complaint of
the employees arose from their dissatisfaction with these two
supervisors Subsequent to the meeting, at the behest of the
management, Williams went before the employees and read a
statement which was designed to alleviate whatever friction
had arisen from his methods of supervision.
The Union's campaign in 1966 was subsequently abandoned
without any attempt to secure a representation election At
the same time, it should be noted that no unfair labor practices
charges were ever filed against the Respondent for its conduct
during this penod.
In the fall of 1967, Local 760 began another campaign to
organize the Respondent's employees On about September
13, the Union held an organizational meeting that was
attended by approximately a dozen employees Almost all of
those present signed authorization cards and several of them
thereafter engaged in an active solicitation of their coworkers
to secure further authorizations.
In a letter dated October 2 , Business Agent J. K Nichols,
on behalf of the Union, wrote President Goff to claim that
Local 760 had been authorized by a majority of the employees
to demand recognition and request a meeting for the purpose
of negotiating a collective-bargaining agreement 3
On October 4, a representation petition, which the Union
initiated, was filed in the Tenth Regional Office of the Labor
Board at Atlanta. That same day the Respondent discharged
Jerry Huffaker On October 5, it discharged Don Dills 4 The
termination of these two employees is alleged by the General
Counsel and the Union to have been discriminatory
On October 24, the parties entered into a stipulation for
certification upon consent election On October 27, the Union
filed an unfair labor charge against the Respondent
C The Alleged Violation of Section 8(a)(1), Findings and
Conclusions with Respect Thereto
As mentioned earlier, employee Jerry Huffaker was termi-
nated on October 4 5 Thurman Cate, whose employment
status is an issue in this case, testified that a few days before
Huffaker's discharge he had a conversation with Foreman Jerry
Hickman during which the latter inquired as to what he knew
about a statement that had been attributed to Huffaker
According to Cate, whose testimony in this regard was credible
and uncontradicted, Hickman first asked whether he knew
about an occasion when Huffaker had worked at a job in
North Carolina while on sick leave at the Ceilheat plant Cate
testified that after he acknowledged having heard about this
incident, Hickman then asked whether he had ever heard
Huffaker state that the only reason he would "forget about the
Union was to get rid of [Hickman] and [Plant Manager]
Williams " Cate answered this question in the negative
The General Counsel alleged that this inquiry by Hickman,
directed to Cate, constituted unlawful interrogation of one
employee about the union activities of a fellow worker.
Although Hickman appeared as a witness for the Respondent,
he was asked no questions about this incident, and the
Company made no attempt to contradict or deny Cate's
testimony Instead, the Respondent now contends that at the
time in question Cate was himself a supervisory employee and
that any conversation he had with Hickman was between two
supervisors.
There is substantial evidence that, in this respect, the
Respondent's defense is well founded. At one point Cate was a
supervisor in the trailer department During the summer of
1967, that unit was shut down. President Goff testified that
thereafter Cate retained his supervisory status and was assigned
a special project which involved the construction of new
equipment and work in the maintenance department Goff
testified that during the period in question Cate had the
authority to assign the employees under him6 to whatever jobs
he wanted them to do, that he was responsible for their work
product, that he could effectively recommend their discipline
and that he exercised independent judgment in carrying out his
duties According to Goff, Cate had a salary of $115 a week as
2 President Goff testified that some years before 1966 there had
been a short -lived and unsuccessful attempt to organize the employees.
3 The record is silent as to whether this request was ever
acknowledged by the Respondent
4 The complaint alleged, and the answer admitted , that Dills was
terminated on October 4 and Huffaker on October 5 However,
Huffaker testified that he was discharged on October 4 and Dills
testified that he was terminated on October S. Moreover, this latter
testimony as to the dates in question was corroborated by President
Goff, Vice President Witherspoon and Plant Manager Williams Con-
sequently , on the basis of the testimony adduced at the hearing, the
Trial Examiner finds that the terminations of Huffaker and Dills
occurred on October 4 and 5, respectively.
5 Unless otherwise specifically noted , all dates referred to herein-
after are for the year 1967
6 Goff testified that there are two men assigned to work with Cate.
In the trailer department Cate had a maximum of 11 employees under
him.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a foreman in the trailer department and since leaving there he
has continued to draw the same salary 7 Further, Cate does
not punch a timeclock as do the rank-and-file employees
Instead, he merely signs his own timecard, in keeping with the
practice followed by foremen at the plant.
In the light of the foregoing credible testimony as to Cate's
status, none of which was denied or contradicted, it is the
conclusion of the Trial Examiner that in October 1967, Cate
was, as the Respondent contends, a supervisor within the
meaning of the Act. Therefore, the conversation had with
Hickman, did not, and could not, under the circumstances in
which it occurred, constitute unlawful interrogation within the
meaning of Section 8(a)(1) of the Act The Trial Examiner so
finds.8
D. The Alleged Violation of Section 8(a)(3); Findings and
Conclusions with Respect Thereto
1 Don Dills
a. The facts
Dills was first employed by the Respondent in January
1961 and remained continuously in the company employ until
his termination on October 5, 1967. When first hired, Dills
worked in the sheet metal shop Thereafter, he worked in the
spray department and later was assigned to the assembly
department Dills was injured twice while on the job, the first
time in 1965, and the second in 1967. In both instances the
accidents were covered by workmen's compensation insurance.
The second injury occurred in the spring of 1967 and was the
more serious, requiring that Dills be hospitalized for some
while.9 Upon his return to the plant, Dills was placed on less
strenuous work as a laboratory assistant. According to Dills'
credible and undenied testimony, subsequent to this assign-
ment, he actually remained in the laboratory only 2 to 3
weeks. The rest of the time he worked at various testing and
research jobs, under the direction of Harry Duley, an engineer
at the plant.' 0
At the time of his discharge, Dills was earning $2 50 hourly,
the top rate for his classification According to Dills, through-
out the course of his employment his work had never been
criticized This testimony was not seriously contradicted by
any witness for the Company Whereas there was some adverse
testimony about Dills' effectiveness in the last few weeks of his
employment, the Respondent' s witnesses could not testify as
to any specific incident during his entire employment history
when Dills had been derelict. President Goff conceded that in
the assembly department and when engaged in the manufac-
ture of trailers, Dills' work had been "entirely satisfactory."''
Goff could only recall one occasion when Dills had been
reprimanded and that had been several years earlier when the
employee had been on the paint line.' 2
In 1966, when Local 760 made an abortive attempt to
organize the plant, Dills signed an authorization card and
attended several union meetings In 1967, when Local 760
resumed its campaign among the company personnel, Dills
signed another union card. He testified that this was on about
September 5 On September 13, he attended the organizational
meeting mentioned earlier herein.
It is clear from the record that Dills' affiliation with the
union drive quickly came to the attention of the management
Dills made no secret of his having signed an authorization card.
He testified that immediately after attending the meeting on
September 13, he discussed the matter at the plant with his
coworkers and told his foreman that he had signed a card.
Shortly thereafter Duley called him into his office and warned
Dills that Jack Witherspoon, vice president in charge of
engineering, had asked that Duley caution Dills about talking
to the men in the plant At the hearing, Witherspoon testified
that about a month before Dills' termination he heard rumors
"that there were people in the plant who were engaged in
trying to bring in a union and that Don [Dills] was one of
them." According to Dills, for several days after the union
meeting, Frank Jenkins, foreman in the filling department,
made a point of greeting him, whenever they met in the plant,
with the salutation "Hello, little Jimmy Hoffa.s13 President
Goff testified that he first heard of union activities among the
employees about "mid-September" and that about this same
time he "heard rumors that Don [Dills] had attend a [union]
meeting."' 4
Goffs concessions about the knowledge which the manage-
ment had of union activity among the employees was further
confirmed by Dills' credible testimony as to a conversation
with employee Garnet Smith. For some while prior to the
union meeting, Dills and Foreman R. C Tipton shared a car
'pool on their way to and from work. On the day of the
meeting, however, Dills made other arrangements for getting
home. Garnet Smith, an employee and half-brother of Tipton,
was at the meeting, but was the only one present who did not
sign an authorization card The following day, according to
Dills, Smith told him that Foreman Tipton stated that the
7 Cate's salary was about the median pay for foremen at the plant.
Goff testified that there were four foremen who received less than $115
a week, and five who received more
8 In further support of his argument that Cate had no supervisory
status, the General Counsel relies on the fact that in the stipulation for
consent election , signed in late October 1967, Cate was classed as a
leadman and included within the list of eligible voters. There is no merit
to this contention . An agreement of the parties on an election eligibility
list, often the result of various compromises , has no binding character
on an issue as to supervisory status in a subsequent unfair labor practice
case NL.R B v. Carolina Natural Gas Corporation, 386 F.2d 571, 574
(C A. 4), Leonard Niedntter, 130 NLRB 113 , 115, fn. 2 , Shreveport
Packing Corporation, 141 NLRB 1255, 1260
9 In fact, the treatment required for the second injury involved
extended medical care. Even at the time of his termination in October
1967, Dills had not been released by his doctor.
10 Dills and one other employee worked with Duley. Dills described
Duley as his immediate supervisor , or foremen, and the one from whom
he took orders and received instructions . The Respondent contends that
Duley was not a supervisor within the meaning of the Act and that
Duley was classified only as a "developmental engineer ." In any event,
the Company paid him a salary of over $8,000 a year , an amount which
admittedly exceeded that of any other production supervisor in the
plant The Respondent never called Duley as a witness, although he is
still in its employ. Dills' testimony as to Duley 's supervisory functions
was uncontradicted and undenied . On the record here, the Trial
Examiner concludes that Duley was either a supervisor within the
meaning of the Act, or, at the very least, had apparent authority to
speak for management so that the Respondent was responsible for his
conduct. N.L.R.B. v. Solo Cup Company , 237 F.2d 521 , 523-524
(C A 8) ("he did exercise some control over employees and was
certainly in a position to translate to the employees the policies of the
company").
11 The quotation is from Goff 's testimony.
12 Goff thought that this incident occurred in 1964.
13 Dills' testimony in this regard was credible and undenied Jenkins
was never called as a witness by the Respondent.
14 The quotations in this sentence are from Goff's testimony
CEILHEAT, INC
Company not only knew about the meeting but also knew who
had attended it 16
Don Dills and his wife, Glenda, had been married in April
1966 when both were working at the plant For several years
prior to that time, Mrs Dills had been secretary to Mr. Goff, as
well as H. T Harris, chairman of the board After her marriage
she continued in that same role at the plant office.
Two days after the union meeting on September 13, both
Harris and Goff had a conversation with Mrs. Dills in which
they suggested that she should convince her husband to quit
his job, so that he could return to school and further his
education 16 Mrs Dills was noncommittal but agreed to
discuss this proposal with her husband
On Friday, September 29, Goff and Harris engaged Mrs.
Dills in another conversation as to her husband's future
According to Mrs. Dills, Goff opened the discussion with a
reference to their earlier conversation about Don. This time
the company officials told her that a number of the employees
wanted their wives to work in the plant and had complained
that, whereas this was not permitted to them, both Mr and
Mrs Dills were kept on the payroll After reminding the
officials that her situation was different in that both she and
her husband were working for the Company at the time they
were married, she told Goff and Harris that if her presence at
the plant created a problem she herself would resign. Neither
Goff nor Harris would accept her offer, however According to
Mrs. Dills, they told her then that they would prefer that she
stay, and that it was her husband that they wanted to leave In
conclusion, they told her that they did not feel that her
husband would "work out" in the laboratory 1 7
Mrs Dills related the substance of this conversation to her
husband. Thereafter, Dills questioned Duley, for whom he had
been working for some time, as to whether his work was
satisfactory. Duley expressed surprise that Dills would even ask
the question and told him "Well, Don, if your work wasn't
satisfactory, I would be the first to tell you." Dills then told
Duley that Goff and Harris had intimated to his wife that they
wanted him to quit and that he felt this was because he had
signed a union card According to Dills, at this point, Duley
concluded the conversation with the statement that he knew
nothing about that matter and that he "wasn't mixed up in it
at all " That same day, Dills sought out Foreman R. C. Tipton,
under whose supervision he had once worked for several years
at an earher period in his employment After Dills told Tipton
about the conversation which the company officials had with
his wife, he asked his ex-foreman if his work had been
satisfactory. According to Dills, Tipton replied in the affirma-
tive and told him that if Dills was not going to remain in the
laboratory he would like to have him back in his depart-
ment.1 8
15 At the hearing , Smith denied that he had made such a statement.
Smith was not a persuasive witness in this regard and his bare denial of
the statement attributed to him by Dills was not convincing. As
between these witnesses , it is the conclusion of the Trial Examiner that
the account of Dills is the more credible.
16 Mrs Dills credibly testified that this conversation occurred on the
Friday after the union meeting which her husband attended This would
have been September 15.
17 The foregoing findings are based on the credible , uncontradicted
testimony of Don and Glenda Dills . Goff's testimony as to the two
different conversations had with Mrs Dills corroborated the testimony
which she gave
18 The foregoing findings, as well as the quotations , are from Don
Dills' credible and uncontradicted testimony . The Respondent did not
857
On October 5, Plant Manager Williams instructed Dills to
report to Witherspoon's office. Present, in addition to
Witherspoon, was Vice President Robert Ely. There, Dills was
told that he was being terminated immediately to enforce a
company policy against employment of husband and wife, and
for lack of suitable work.' 9 Dills was given 2 weeks pay in
advance Checks for this amount and for his terminal pay had
been prepared in advance and were handed to him on the spot
Ely told him that the Company would be glad to give him a
good recommendation and assured Dills that it would be easy
for him to get another job.
Although in their exit interview, the Respondent's officials
promised Dills that they would recommend him highly, he
later found them reluctant to abide by this commitment On
October 27, the Union filed its charge with the Board, alleging,
inter aka, that Dills had been discriminatorily terminated
Some time thereafter Dills telephoned Witherspoon to ask for
a letter of recommendation in connection with a job that he
hoped to secure. The plant official asked for an opportunity to
consider the matter and promised to return the call When he
did so, according to Dills, Witherspoon told him "Don . . due
to the fact that you have filed charges against us we are not
going to be able to give you a good recommendation
because you have hurt us real bad ,20
b. Respondent's defense
At the time of her marriage to Don Dills, Glenda Dills had
been the plant secretary for almost 3 years Mrs Dills testified
that in April 1966, and before the wedding, she discussed with
Goff and Harris the matter of whether she would be able to
retain her job and that Harris advised her to go ahead and rent
the apartment which she and her prospective husband were
considering When Mrs Dills inquired more specifically as to
whether he meant that she could keep her job, Harris reassured
her that this assumption was correct and waived aside any
further discussion of the issue with the comment that she
should not "look a gift horse in the mouth " According to Mrs.
Dills, subsequent to this conversation with Goff and Harris, she
heard nothing from anyone about any rule against husband
and wife employment until September 29, 1967, when the
same company officials had the conference with her which has
been described above. 21
Goff testified that the first complaints from other employ-
ees about wives not being able to work at the plant came about
mid-September 1967 He conceded that no such complaints
had been voiced by anyone in the previous 18 months that the
Dills had worked at the plant as a married couple He further
conceded that the alleged rule involved had never been written
out, and that it had never appeared in the employee handbook.
call either Duley or Tipton to the witness stand and no explanation was
offered for their nonappearance See Interstate Circuit, Inc . v United
States, 306 U S. 208, 226
19 A termination slip given him at the time gave as the reason for his
discharge "Enforcement of company policy against husband and wife
employment and lack of suitable work."
20 Witherspoop's testimony did not differ materially from that of
Dills Thus, the former testified * "I told Don . that he had given us a
lot of trouble and I was trying to think what I could say in the letter "
21 The findings and quotations in the foregoing paragraph are based
on the credible , undemed testimony of Glenda Dills.
858 DECISIONS OF NATIONAL
Ely testified that Dills' discharge had been under consid-
eration for some time and that the decision to terminate him
was reached at a board of directors' meeting about a month
before the dismissal. Goff, on the other hand, testified that the
board's decision was reached on the Friday before the
employee was actually terminated
The termination notice which Dills received stated that no
suitable work was available for him The testimony of
Witherspoon and Goff on this subject was most unconvincing.
Witherspoon conceded that, to the best of his knowledge, Dills
had been a satisfactory employee during the approximately 6
years of his employment with the Company when he had been
in the production department, on the paint line and elsewhere.
According to Witherspoon, it was only in the last 3 to 4
months before Dills' termination that the latter became an
unsatisfactory employee Witherspoon, however, failed to
articulate any substantial reason why he reached that conclu-
sion. Nor did he testify that at any point prior to Dills'
discharge that either he, or any other plant official, had
discussed Dills' alleged deficiencies with the employee. Goff
was equally vague as to his reasons for concluding that Dills'
termination was imperative. He testified that at some point in
September he discussed the employee with Duley, his super-
visor. According to Goff, when he asked Duley about Dills'
work, the supervisor answered "He works fine." Goff testified
that he then asked Duley, "Is Don a self-starter? Does he pick
up these things quick?" And that Duley answered "He is not as
fast as some of the other people " Notwithstanding Goff's
emphasis on this conversation to establish that Dills had to be
eliminated, he conceded that he never thereafter discussed
with Dills his alleged shortcomings as a "self-starter," and he
acknowledged that he did not know whether Duley ever had
either
As noted earlier, neither Duley, nor any of Dills' other
immediate supervisors at the plant was ever called to testify.
c. Concluding findings
Dills had been an early adherent of the Union and this fact
was known to the management, almost from the outset of the
campaign by Local 760 in early September Immediately after
Dills attended the first union meeting, Goff and Harris
conferred with his wife in an effort to convince her that her
husband should quit his job and return to school. Two weeks
later, Goff and Harris returned to tell Mrs Dills that her
husband's work had become unsatisfactory and that other
employees were complaining about nonenforcement by the
Company of a rule against employment of husband and wife.
When confronted with this alleged problem, Mrs. Dills immedi-
ately volunteered to resign, so that her husband could continue
on the job. Her offer, however, was declined with the
statement by Goff that it was her husband that the Company
wanted to eliminate. Although Goff and Witherspoon testified
that for some time prior to his departure Dills' work had
become so unsatisfactory that it was the subject of discussion
at several meetings of the board of directors, the Respondent
did not produce Duley, or any other immediate supervisor of
the employee, to testify as to these alleged shortcomings on
the part of an employee of almost 7 years' standing with an
excellent work history. There remains, uncontradicted in the
record, Dills' testimony that, in late September and shortly
before his discharge, Duley assured him that his work was
satisfactory and declared that if it were not, he (Duley) would
be the first to tell him about it.
LABOR RELATIONS BOARD
On October 4 the Respondent received a copy of the
Union's petition for an election Almost simultaneously it
received the Union's request for recognition and collective-
bargaining negotiations On October 5, Dills was discharged,
but with the promise by Witherspoon that he would be glad to
give him a good recommendation for other employment On
October 27, the Union filed an unfair practice charge against
the Company. Thereafter, when Dills asked Witherspoon for
his help and a letter of recommendation, the plant official told
him that he would be unable to give him a good reference "due
to the fact that you have filed charges against us .. you have
hurt us real bad "
In the light of the foregoing findings, the Trial Examiner
concludes and finds that the explanation offered by the
Respondent for Dills' termination was a pretext. Moreover, on
this record, it is the conclusion of the Trial Examiner that the
real reason for the discharge was not the reason assigned by the
Respondent, but Dills' identification with the union campaign.
By his dismissal the Respondent violated Section 8(a)(3) and
(1) of the Act The Trial Examiner so finds.
2 Jerry Huffaker
a. The facts
Huffaker was a sheet metal worker who was employed at
the Respondent's plant from August 1963, until his discharge
on October 4, 1967 At the time of his termination he was
receiving $2 50 an hour, the top pay in his classification.
Huffaker signed a union card at some time prior to his
discharge. He did not, however, attend any organizational
meetings held by Local 760 until after his termination. He
testified that on about October 1, he discussed his prounion
views with Foreman Frank Jenkins
Huffaker was discharged on October 4, allegedly for having
taken sick pay for a day when he was actually employed by a
private contractor some distance from Knoxville The
circumstances involved in this incident are related below.
On the night of March 16, Huffaker telephoned the home
of his foreman, Thurman Cate, and told Cate's wife, Cate not
being available, that he would not be at work the following
morning. Huffaker testified, credibly and without contradic-
tion, that in this conversation he did not give any reason as to
why he would not report for work the next day In any event,
on the following day, he and a brother-in-law, who had a tile
laying business, went to North Carolina where, on March 17
and 18, a Friday and Saturday, Huffaker worked on a flooring
project On the second day on this job he received a slight
injury which caused him to incur a $10 bill for medical
treatment.
On March 20, the following Monday, Huffaker returned to
his job at the Ceilheat plant. At that time he submitted a $10
claim for reimbursement under the company sponsored group
health insurance policy, the premiums for which were paid in
part by the Company and in part by the employee. In due
course, Huffaker's claim was paid by the insurance carrier
Foreman Cate testified that in passing on the message from
Huffaker, his wife did not tell him that the employee had given
any explanation as to why he would not be at the plant on the
following morning According to Cate, he assumed that
Huffaker would be out because of illness and, for that reason,
on the employee's timecard he wrote the word "sick" and
initialled the notation to indicate approval for payment of sick
CEILHEAT, INC.
leave to the employee Cate did not make this entry on
Huffaker's timecard until the completion of the workweek, so
that the employee never saw this entry on his card. In any
event, on the regular payday for the period which included
March 17, Huffaker received a check for an entire week's
work Huffaker accepted the check without protest.
President Goff testified that on October 3, Foreman
Hickman reported to him that on a certain day the preceding
March, Huffaker had been on sick leave when, in fact, he was
not ill, but was at work in North Carolina. According to Goff,
after receiving this information he checked the employee's
timecard and the insurance files. Goff testified that, when an
examination of these records corroborated Hickman's informa-
tion, he summoned Foreman Cate and asked him whether he
would indicate on a timecard that a man was sick if that
employee was not, in fact, ill. According to Goff, Cate
answered in the negative 22
On October 4, Goff called Huffaker into his office where, in
addition to the plant president, the employee was confronted
by Plant Manager Williams and Foreman Hickman. There,
Williams told the employee that he was being given an
opportunity to deny whether he had, on March 17, been at
work in North Carolina. Huffaker admitted that he could not
deny the charge. He further conceded, upon being questioned
by Goff, that he had submitted an insurance claim for medical
expenses incurred while on this other job. Huffaker thereupon
volunteered to reimburse the Company for the $20 in sick pay
which he had received, as well as the $10 he had received on
the insurance claim Goff brushed aside this offer, however,
and told the employee that that would not be satisfactory, that
the Company would have to dismiss him. Williams then told
Huffaker that in order not to jeopardize his getting other
employment, he could resign immediately and the Company
would give him a good recommendation Huffaker thereupon
stated that he would resign. With this, the employee was given
his final paycheck, and a termination notice, both of which
had been prepared before he arrived in the office that day
Goff conceded that Huffaker was a good worker, and that,
prior to the incident in question, he had never engaged in a
breach of any company rule Goff denied knowledge that
Huffaker had been involved in any union activity and he
denied that the discharge was for any reason other than
Huffaker's dereliction as to sick leave.
The Respondent's sick leave plan had been in effect for
several years and provided that an employee could accumulate
one day of paid sick leave for each month of employment.23
Goff testified that the Respondent had been concerned for
some time about employee abuses of this benefit According to
the plant president, in an effort to discourage employees from
abusing their sick leave privileges, the company bonus plan was
revised, effective in July 1967, so that the amount each
individual would receive in a year-end bonus would be reduced
by the proportionate fraction of the work year that the
employee had been on sick leave.
Huffaker was the only employee who had ever been
discharged for alleged abuse of such leave Another employee
was once suspended In December 1967, one Jerry Stiles took
22 There was, however, no evidence that Goff ever asked Cate if
Huffaker had told him that he was sick.
859
sick leave, appeared in an orchestra on a television program
that evening, and the following day reported that he was still
sick. On his return to duty, Stiles was suspended without pay
for 4 days Plant Manager Williams endeavored to distinguish
this action from the more severe penalty meted out to
Huffaker on the ground that the latter was fired for drawing
sick leave pay while at work for another employer, during the
regular workday, whereas Stiles had other employment only
during off-work hours Williams further testified that on 7 or 8
occasions during 1967 he had reprimanded employees for
taking what appeared to be excessive sick leave. According to
Williams, however, he had not imposed a more severe penalty
on any of these other employees because in none of these
instances did he have any evidence that the employee in
question was not actually sick at the time he had been on
leave
In support of his own case, Huffaker testified that it was a
common practice for employees to get sick leave pay when not
actually ill. He testified that he himself had done this prior to
the occasion in March 1967, which figured in his dismissal.
However, his testimony in this connection was not corrobora-
ted by that of any other witness. Foreman Cate, when
questioned about this matter, denied that he knew of any such
instances.
Huffaker's testimony that on about October 1, he discussed
his union sympathies with Foreman Jenkins was undenied. It
was also undenied that, at about this same time, Foreman
Hickman questioned Cate as to whether he had heard Huffaker
declare that he would support the Union unless the Company
got rid of Hickman and Plant Manager Williams and that Cate
gave a negative response to this question Shortly thereafter,
Hickman reported to Goff that 6 months earlier Huffaker had
drawn sick pay at a time when he had a job with another
employer On the stand and under cross-examination, Hickman
was a most evasive witness when questioned as to how long he
had been cognizant of Huffaker's alleged dereliction Hickman
testified that he had come into possession of the essential facts
only a short while prior to the time that he reported them to
President Goff However, his obvious reluctance to answer
questions about the source of his information and about the
length of time that he had known about the matter made it
apparent to the Trial Examiner that Hickman must have been
aware of the incident for much longer than he cared to admit.
Earlier herein it was found that by October 5, the
Respondent had received both a request from the Union for
negotiations and a copy of the Union's petition for a
representation election That same day Goff discriminatorily
discharged Don Dills whose union activities and interests had
been well known to the management for several weeks.
Huffaker was not in the same category He had signed a card at
this point, but he had attended no union meetings It is not
clear from the record that he had done anything on behalf of
the Union other than sign an authorization On the other hand,
it appears that Foreman Hickman considered the advent of
Local 760 a threat to his own tenure and that he suspected
Huffaker of an interest in that union. The sequence of events
which Hickman set in motion and which led to Huffaker's
23 Goff testified that , in addition to using the sick leave when ill, an
employee had been permitted, on occasion , to use it for the purpose of
attending the funeral of a near relative.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissal may have been prompted by Hickman's fear that
recognition of a Union might compel his own departure 24 Or
it may have been prompted by the Respondent's desire to
thwart the Union's campaign
On the credible evidence in this record, it is clear that
Huffaker did not ask that Cate put him on sick leave.
Nevertheless, when Cate marked Huffaker's timecard on the
mistaken assumption that the employee was out because of
illness, the employee quietly acquiesced in accepting the sick
pay which thereafter came his way Although the General
Counsel contends in his brief that widespread abuses in the
sick pay program were condoned by the Company, there is
only Huffaker's uncorroborated testimony in the record to
support this contention. At the same time there is evidence
that the Respondent had become concerned about abuses of
the system It had revised its employee bonus plan in such a
way as to penalize those who used extensive sick leave and
several employees suspected of such irregularities were
reprimanded. Huffaker was the one and only employee to
suffer the penalty of discharge, allegedly for misusing sick
leave. Admittedly, the punishment was harsh and it may have
been unwise The issue for resolution at this juncture, however,
is whether this action was motivated by a discriminatory intent
within the meaning of the statute, or whether it was effected
for other reasons
Foreman Hickman, had known for some time about
Huffaker's dereliction the preceding March. Nevertheless, he did
nothing about the information which he had on the matter
until about October 1, when his inquiry addressed to Cate
disclosed an apprehension that Huffaker was supporting the
Union to rid the plant of Hickman and Williams On this
record it is not clear whether Hickman passed along the
damaging evidence on Huffaker as the result of personal
hostility which he may have had for this employee, or whether
it was for other, and discriminatory, reasons If Hickman was
motivated discriminatorily in making his report to Goff, on the
basis of which the president discharged Huffaker, the Respond-
ent must be held to have violated Section 8(a)(3), for the
report was clearly within the scope of the foreman's employ-
ment Allegheny Pepsi-Cola Bottling Company v N.L R B.,
312 F.2d 529, 530-531 (C.A. 3); Federal Tool Corporation,
150 NLRB 210, 220-221, Bangor Plastics, Inc, 156 NLRB
1165, 1170, enforcement denied, 392 F 2d 772 (C.A. 6). Here,
however, it is the conclusion of the Trial Examiner that the
record fails to establish by the necessary quantum of the
evidence that Hickman was impelled by such a discriminatory
motive in making the report in question Neither is it clear
that, once in possession of this evidence on Huffaker, President
Goff discriminatorily seized upon it to rid the plant of a union
adherent, for there is evidence that he acted out of concern
over abuses of the sick leave policy and for purely business
reasons.
The Act requires that, for the General Counsel to prevail, an
allegation of discriminatory discharge must be supported by a
preponderance of the testimony in the record In the light of
the foregoing findings, and the record herein, it is the
conclusion of the Trial Examiner that the General Counsel has
not established by a preponderance of the evidence that
Huffaker's termination was discriminatory. Accordingly, it will
be recommended that the complaint be dismissed insofar as it
alleges that Huffaker's discharge violated Section 8(a)(3) of the
Act. Martel Mill Corporation, 118 NLRB 618, 621.25
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act
2. By discriminating in regard to the hire and tenure of
Don Dills, thereby discouraging membership in the Union, the
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
3 By interfering with, restraining, and coercing its employ-
ees in the exercise of the rights guaranteed in Section 7 of the
Act, the Respondent has engaged, and is engaging, in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5 The discharge of Jerry Huffaker was not a violation of
Section 8(a)(3) of the Act, as alleged by the General Counsel
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, the Trial Examiner will recommend that
the Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily dis-
charged Don Dills, the Trial Examiner will recommend that the
Respondent be ordered to offer Dills immediate and full
reinstatement without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings
that he may have suffered from the time of his suspension and
24 As found earlier herein , in the summer of 1966, the onset of an
organizational drive had led to a company sponsored meeting which
resulted in the airing of employee discontent with Plant Manager
Williams and Foreman Hickman . In the fall of 1967, when the next
union campaign began , Hickman may have considered that he was again
on trial
25 In his brief the General Counsel relies on the close relationship in
time between the discharges of Huffaker and Dills to establish that both
terminations were part of an antiunion plan which the Company
executed Apart from the fact that both employees were dismissed
within a 24 -hour period, there are numerous differences as to the facts
surrounding these terminations Whereas Dills' union activity was well
known for several weeks , there is no evidence that the Company had
any such knowledge of Huffaker 's activities until shortly before his
discharge , when the employee himself volunteered to Foreman Jenkins
his prounion sympathies After the management learned of Dills'
interest in the Union, the plant officials conducted a determined and
extended effort to discourage him from remaining in the Respondent's
employ, whereas as to Huffaker no such parallel action was taken by the
Company. Until Dills became interested in the Union , the Company had
no objection to either his work, or keeping him and his wife on the
rolls, whereas in Huffaker's case , the asserted basis for discharge, albeit
harsh , standing by itself constituted good cause. As the Board recently
stated as to a somewhat similar situation:
While we agree that Wilson was discriminatonly discharged
[whereas another employee named Stanton was not], the circum-
stances of the two discharges were different. The two discharges
are not connected by any objective facts. While one violation may
raise a suspicion that others also occurred , each violation must be
proven by " the preponderance of the testimony." The General
Counsel has not met this burden of proof as to Stanton. [Hopkins
Ready-Mix Concrete, Inc, 161 NLRB No. 132 1
CEILHEAT, INC. 861
discharge to the date of the Respondent's offer of reinstate-
ment The backpay for the foregoing employee shall be
computed in accordance with the formula approved in F. W
Woolworth Company, 90 NLRB 289, with interest computed
in the manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721 It will also be
recommended that the said Respondent be required to
preserve and make available to the Board or its agents, on
request, payroll and other records to facilitate the computa-
tion of backpay due
As the unfair labor practices committed by the Respondent
are of a character striking at the root of employee rights
safeguarded by the Act, it will be recommended that the said
Respondent be ordered to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the
Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A.
4).
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, the Trial
Examiner hereby issues the following
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20
days from the date of this Recommended Order, as to what
steps have been taken to comply herewith 27
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges any unfair labor practice, other than
as herein specifically found.
26 In the event that this Recommended Order is adopted by the
Board, the words, "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice. In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
27 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read : "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
RECOMMENDED ORDER
Ceilheat, Inc , its officers agents, successors, and assigns,
shall.
1. Cease and desist from-
(a) Discharging, or otherwise discriminating against any
employee because of membership in, or activity on behalf of,
International Brotherhood of Electrical Workers, AFL-CIO,
Local Union No 760, or any other labor organization.
(b) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the purpose
of collective bargaining or other mutual aid, or to refrain from
any or all such activities.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Offer to Don Dills immediate and full reinstatement to
his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make
him whole in the manner set forth in the section of this
decision entitled "The Remedy."
(b) Notify the above-named employee, if presently serving
in the Armed Forces of the United States, of his right to full
reinstatement upon application, in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary or
appropriate to analyze the amount of backpay due
(d) Post at its plant in Concord, Tennessee, copies of the
attached notice marked "Appendix".' 6 Copies of said notice,
on forms provided by the Regional Director for Region 10,
after being duly signed by an authorized representative of the
Respondent, shall be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International
Brotherhood of Electrical Workers, AFL-CIO, Local Union
No. 760, or any other union , by discharging or otherwise
discriminating against our employees because of their union
or concerted activities
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their right to
self-organization , to form, join, or assist the above-named
Union, or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
WE WILL offer Don Dills immediate and full reinstate-
ment to his former or substantially equivalent position
without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of pay suffered
as a result of discrimination against him.
CEILHEAT INC
(Employer)
Dated By
(Representative ) (Title)
NOTE We will notify the above-named employee if
presently serving in the Armed Forces of the United States of
his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered by any other material. rectly with the Board's Regional Office, 730 Peachtree Street,
If employees have any question concerning this notice of NE , Room 701, Atlanta, Georgia 30308, Telephone
compliance with its provisions, they may communicate di- 526-5741