Divco-Wayne Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1965

154 N.L.R.B. 974 (N.L.R.B. 1965)

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Divco-Wayne Industries , Inc. and International Brotherhood of
Firemen , Oilers, Powerhouse Operators , and Maintenance Men,
AFL-CIO. Case No. 1?-CA-3093. September 3, 1965
DECISION AND ORDER
On May 26, 1065, Trial Examiner Frederick U. Reel issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision 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 [Members Fanning, Brown, and Jenkins].
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 brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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, as modified
herein, and orders that the Respondent, Divco-Wayne Industries, Inc.,
Leesburg, Florida, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as so
modified : 1
1. Add the following immediately below the signature line at the
bottom of the notice attached to the Trial Examiner's Decision :
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 Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
'The address and telephone number for Region 12 , appearing at the bottom of the
Appendix attached to the Trial Examiner 's Decision, is amended to read: 228-7711,
Extension 257.
154 NLRB No. 81.
DIVCO-WAYNE INDUSTRIES, INC. 975
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard at Leesburg, Florida, before Trial Examiner Frederick U. Reel on
April 5 through 7, 1965, pursuant to a charge filed December 11, 1964, and a com-
plaint issued January 26, 1965,1 presents questions whether Respondent, herein called
the Company, discharged employee William Whisnant for activities on behalf of the
Charging Party, herein called the Union, and whether the Company unlawfully inter-
rogated employees as to their union activity and granted benefits for the purpose of
dissuading the employees from supporting the Union. At the conclusion of the hear-
ing counsel for the General Counsel and for the Company presented oral arguments
which I have duly considered; no briefs have been filed. Upon consideration of the
entire record,2 including my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company is a Delaware corporation, operating several plants in the United
States, including a plant at Leesburg, Florida, at which it manufactures automobile
trailers or mobile homes, and from which it annually ships to points outside Florida
goods valued in excess of $2 million. The Company admits, and I find, that it is
engaged in commerce within the meaning of the Act, and that the Union is a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
In the fall of 1964 a number of the Company's Leesburg employees, led by
employee William Whisnant, expressed interest in being represented by a labor
union. At Whisnant's suggestion, union representatives came to Leesburg and spoke
with Whisnant and three other employees. As a result of this conference and further
organizing within the plant, a meeting was held Friday, December 4, attended by a
union organizer and approximately 18 employees of the Company. At this meeting
the employees were given union authorization cards to distribute among their fellow
workers at the plant. The organizer directed the employees to circulate the cards,
get them signed, and return them to Whisnant for transmission to the Union. Cards
were circulated at the plant on Monday and Tuesday, December 7 and 8, and
Whisnant turned them over to the organizer on the latter date. Whisnant was dis-
charged 2 days later, under circumstances described below. The union activity
described above culminated in an election in January 1965, which the Union won, 75
to 4, and it was thereafter certified as the bargaining representative of the employees.
B. Interference, restraint, and coercion
1. Statements of supervisory personnel
As noted above, union cards were distributed at the plant on December 7. Early
that morning employee John Bell sought out Plant Superintendent Al Carter, and
volunteered to Carter that he (Bell) had signed a union card. A short time later
Carter returned to where Bell was at work, asked him to step outside the building,
and there inquired of Bell as to who had given him the card. Bell replied, identifying
the distributor as one David Smart, another employee. During the same conversation
Carter observed that he thought a union would not work in the plant and that an
incentive plan, which the Company had in mind, would be better than the Union.
Carter denied certain aspects of this conversation, claiming that he had but one con-
versation with Bell and that Bell volunteered the name of the employee handing out
cards and introduced the incentive plan matter into the conversation. I credit Bell's
version, as recounted above. Carter impressed me as a thoroughly unreliable witness,
with a highly selective memory and an obvious readiness to conceal, or to attempt to
'Unless otherwise indicated, all other dates herein refer to the year 1964.
2As indicated at the hearing, I am taking official notice of the record in Case No.
12-RC-2089 , involving these parties.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceal , evidence unfavorable to the Company. Bell, who is still employed by the
Company, appeared at times to be somewhat reluctant to testify against the Company.
I am satisfied that his version of the events of December 7 is far more reliable than
Carter's.
Later on December 7, employee Ester Cook asked Carter for a loan, and Carter
took him to the office of Production Superintendent Ernie Harris. While in the
latter's office Carter asked Cook what Cook had heard about the Union and whether
Whisnant had given Cook a union card . When Cook replied in the negative, Carter
asked Cook to let Carter know if Cook heard anything about it , to which Cook
agreed . Harris remembered nothing of this episode, and Carter, who recalled the
occasion , denied discussing the Union with Cook . But Cook , who is still employed
under Carter's supervision , was not only a disinterested witness, but impressed me by
his demeanor and manner of testifying as absolutely honest , in sharp distinction to
Carter, who made quite the reverse impression . I credit Cook's testimony fully.
Also on December 7, Morris Hughes, foreman of the cabinet shop, approached
Glenn Mintz , who at the time was a leadman and not a supervisor, and asked Mintz
if he had heard anything about the Union and what he thought about it. When Mintz
replied that he thought the Union might be a good thing , Hughes returned that
perhaps it might , and walked away.
On December 8 or 9, employee Bell approached Production Superintendent Harris,
asked Harris if the latter had heard about the Union , and volunteered that employee
Smart had given him (Bell) a union card . Harris asked if Bell had signed the card,
and Bell replied that he had done so in the belief that it concerned an incentive plan.
Harris also asked if Bell had read the card , and Bell replied that he had not.
On December 9 Assistant Superintendent Carter asked Mintz if the latter knew
"how many had signed up for the Union ," and Mintz replied that he thought about
86 percent had done so . Also on December 9, Carter asked Whisnant , while the latter
was at work , when the employees "were going to get the union in." When Whisnant
replied that Carter should talk to the head of the Union, Carter rejoined that he
thought Whisnant was the head . Whisnant asked Carter what he meant , and Carter
answered that "everybody in the plant can't be wrong, can they?" Whisnant advised
Carter not to start any rumors , and the latter walked away. The next day during
the lunch period Carter approached a group of employees, including Whisnant, and
pointing to him asked the group if they knew they were lunching with the union
leader . A few hours later, according to Whisnant 's testimony, Carter and Foreman
Hughes passed his work station , and Carter asked Hughes if he knew Whisnant was
the head of the Union . Whisnant replied , "That's right, sir," and the two supervisors
walked away . ( Whisnant 's discharge an hour later is discussed below.)
On December 15, after the filing of the charge in this case , employee Bell told
Superintendent Harris that a representative of the Board's Regional Office wanted to
see Bell . Harris asked if Bell had seen the man from the Board to which Bell replied
in the negative , and (according to Bell ) also asked if Bell had signed a union card.
Bell replied that he had done so , to which Harris rejoined , "Well, Bell , that's your
prerogative ." Next day Assistant Superintendent Carter asked Bell whether he had
"seen this National Labor Relations man yet ," and Bell replied that he had not.
General Counsel alleges that by the above -described episodes the Company inter-
fered with its employees in the exercise of their Section 7 right to join or assist the
Union . In my view , Carter's inquiry of Cook as to what he knew about the Union
and whether Whisnant had given him a union card , and Carter's request that Cook let
Carter know if Cook heard anything about the Union violated Section 8(a)(1), as
did Carter's inquiry of Bell into the identity of the employee who gave Bell the union
card . The other items recounted above , and particularly the inquiries directed to
Mintz and Carter's references to Whisnant as the head of the Union ,3 might not
standing alone establish violations of Section 8(a) (1), but taken in the entire context
of the case they reveal an excessive degree of company "nosing" into employee affairs
in matters of self-organization . In any event this record , in my view , establishes some
violations of Section 8(a) (1) and warrants the issuance of an order restraining
unlawful , coercive interrogation. It is therefore unnecessary to pass upon each of the
separate episodes urged by General Counsel in support of such an order. Where,
however, an employee initiates a conversation with a supervisor and tells the super-
visor that a Board representative wanted to see the employee , it is not in my judg-
s In view of Hughes ' denial, and the lack of corroboration of Whisnant concerning the
episode in which Carter is alleged to have told Hughes that Whisnant was the union head,
I make no finding with respect to that episode . I also find that Harris ' query as to
whether Bell signed a card occurred on December 8 or 9, not on December 15. In other
respects , I find the facts as set forth above.
DIVCO-WAYNE INDUSTRIES, INC. 977
ment an unfair labor practice for the supervisor to put the natural query as to whether
the employee had seen the Board agent. Further inquiry into their conversation might
well be unlawful, but this record reveals none.
2. The incentive plan
As noted above, the employees' interest in organizing became open and notorious
on December 7, and on Friday morning, December 11, Union Representative Bartlett
telephoned the head of the Leesburg plant, William Rowe, to advise him that the
Union represented a majority of the employees. That same afternoon the Company
distributed to each of its employees, together with the regular paycheck due at that
time, a two-page mimeographed or lithographed notice announcing a new incentive
plan effective the following Monday, December 14, under which the employees'
hourly earnings would be increased by 30 cents per hour. General Counsel alleges
that the announcement of the incentive plan at this time violated Section 8(a) (1) of
the Act in that the Company intended thereby to use its economic power to interfere
with the employees' exercise of their right to select a bargaining representative.
According to Rowe, he had had in mind for several weeks the institution of some
bonus plan, and on December 2, before any overt union activity occurred, he sub-
mitted in writing to his superiors at the Company's main office in Michigan certain
particulars justifying the inauguration of the plan. Rowe testified that he drafted
the plan in its ultimate form on December 9 and 10, and sent it to a local stenciling
firm the morning of December 11. Rowe admitted that by December 10 he was
aware of the union activity in the plant, and testified that he spoke with his out-of-
State superiors on that date to discuss "whether or not in view of the union activity
it was a good idea whether or not to go ahead and institute the plan as we intended to
do, or wait and see what happened with the union business." Rowe further testified
that "we decided that we wouldn't just because we had union activity, that we wouldn't
change our plans, at this point it wouldn't have mattered."
General Counsel contends that the timing of the announcement betrays the Com-
pany's intent to use the plan to discourage union activity. Of course, if the plan was
conceived, or if its institution was accelerated, to counteract the organizing campaign,
the Company's conduct violated Section 8(a)(1). See N.L.R.B. v. Exchange Parts
Company, 375 U.S. 405. On the other hand, if the plan was not so conceived or
accelerated, and its institution at the time of the union drive was purely coincidental,
the Company did not violate the Act by instituting the plan. See T. L. Lay Packing
Company, 152 NLRB 342, and the Derby and True Temper cases cited by Trial
Examiner Vose therein.
In the light of the December 2 correspondence (which in turn refers to a still earlier
telephone conversation), I cannot find that the bonus plan was conceived as a means
of thwarting the employees' interest in a union. And, while Rowe's testimony is
highly self-serving, and as noted below I do not find him credible in all respects, the
record contains no evidence that the plan was accelerated because of the Union.
(Carter's statement to Bell on December 7 that an incentive plan would be better than
the Union is an insufficient basis for finding that the plan was unlawfully motivated or
accelerated.) I am, therefore, constrained to find that the plan's appearance at the
height of the union drive was, in fact, a coincidence and not a company design. It
may also be noted that as the Union has been certified, the Company may not now
institute any similar changes in working conditions without bargaining with the
Union, so that the entire issue of the bonus plan takes on somewhat academic aspects,
although the issue is not technically moot
C. The discharge of Whisnant
Employee William Whisnant was discharged December 10, 1964, after approxi-
mately 31/2 months' employment as a partition maker in the cabinet department, The
issue, of course, is whether General Counsel has established by a preponderance of
the evidence that Whisnant's union activity was a motivating cause for his discharge.
The Company contends that he was discharged for poor workmanship, particularly
for "sloppy" stapling of material on to frames.
The evidence establishes that Whisnant was the employee responsible for bringing
the Union into the plant, and that at the employee meeting with union representatives
on Friday, December 4, Whisnant was named as the "contact man" between the
employees and the Union. I further find that the Company was aware that Whisnant
was the leader of the union movement. As early as December 7, Assistant Plant
Superintendent Carter asked employee Cook whether Whisnant had given Cook a
union card, and asked Cook to let Carter know if Cook heard anything about it. On
206-446-66-vol. 154-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day before Whisnant's discharge Carter indicated that Whisnant's leadership of
the union drive was general knowledge within the plant, and the next day, shortly
before Whisnant's discharge, Carter openly referred to him as the head of the Union.
To be sure Carter testified that on this last occasion he was merely jesting, that he
had no idea who was the head of the Union, and that he had no more reason for
singling out Whisnant at that moment than any other man then present. Indeed, if
Carter is to be believed, the entire episode was so inconsequential that in a sworn
affidavit given on January 4, 1965, he stated that he did not "remember walking up
to a group of employees during lunch period on or about December 9 or 10 in which
Whisnant was present and stating to them, `Did you guys know you were eating with
the head guy of the Union' or words to that effect." But, although Carter recanted
the affidavit and admitted the episode, the simple fact is that Carter is not generally
to be believed, for I found him to be a completely unreliable witness whose testimony
cannot be credited except where it finds specific corroboration from other reliable
witnesses.
The testimony is in sharp conflict over the quality of Whisnant's work. I am some-
what inclined to discount his testimony that he was praised "several times" by his
shop foreman, Morris Hughes, and also "several times-once every couple of weeks
anyway" by Carter. On the other hand the record does establish that his hourly rate
of pay was increased from $1.60 to $1.70 about 21/z months before his discharge and
Hughes admitted recommending him for that increase as his work was satisfactory.
To some extent employee Hunnewell, who worked with Whisnant, corroborated the
latter's testimony as to praise from their supervisors. Hunnewell, however, had quit
his job with the Company and was a friend of Whisnant; I therefore weigh his testi-
mony as well as that of Whisnant with some skepticism. Foreman Hughes testified
that he never praised anyone. On consideration of the entire record, I find the evi-
dence preponderates in favor of a finding that Hughes at some time expressed satis-
faction with Whisnant's work, but not that he did so in the period immediately pre-
ceding Whisnant's discharge.
According to several witnesses called by the Company, the chief fault they found
with Whisnant was in his stapling. His job was to make the frames for the parti-
tions, put the proper paneling on the frame, and staple the panels on to the frames.
The Company alleged that his horizontal staples at the top were often too low, show-
ing beneath the molding which was thereafter applied, and that when he had to staple
adjacent panels vertically he did not place the staples neatly side by side. The poor
stapling had to be covered by a special vertical molding, or otherwise disguised by
countersinking and puttying, all at some cost to the Company. Company witnesses
admitted that improper stapling was a constant problem in their product, but claimed
that it reached a peak under Whisnant and had declined since he left.
Much space in the record is devoted to the Company's change, or alleged change,
from 1/2-inch to 3/ -inch molding, a matter which bears on the credibility of the wit-
nesses as well as on the quality of Whisnant's work According to both Whisnant and
Hunnewell, the first comment they heard about their stapling was on December 9
when Foreman Hughes told them that the molding on the living room partitions was
being changed from three-quarter inch to one-half inch, necessitating that they keep
the staples within one-half inch of the top. The next morning, according to Whisnant
and Hunnewell, Hughes told them that all the moldings would thereafter be one-half
inch. Hughes denied both episodes except that he remembered criticizing Whisnant
on both days; according to Hughes, 1/2-inch molding was normally used except on a
few occasions, one of which occurred in late October or early November, when the
larger molding "hid some of the problems." Other company witnesses testified that
1/2-inch molding was used except for 3 days in December (according to General
Manager Rowe, the head of the Leesburg plant), or for 2 weeks in early November
(according to Quality Inspector Sheppard). The Company's purchasing agent testi-
fied that early in September the Company received approximately 35,000 feet of
1/2-inch molding from its regular supplier, but that in the latter part of October it
received approximately 25,000 feet of 3/4-inch molding from a substitute supplier.
Then in mid-November it received 20,000 feet of one-half inch from the regular
supplier, and in mid-December it received 72.000 feet more of the one-half inch. In
the light of these figures, it is quite clear that Rowe erred in stating that the Company
used 3/ -inch molding for only 3 days but it also appears that Whisnant and Hunne-
well, both of whom were employed before the 3/4-inch molding was ordered, erred in
testifying that the latter size was the one normally used. The record is reasonably
clear that the larger size was in use for a substantial period in November, and the
supply then on hand may well have lasted into early December when ( according to
Hunnewell and Whisnant) Hughes announced that 1/2-inch molding would thereafter
be used.
DIVCO-WAYNE INDUSTRIES, INC. 979
The Company 's witnesses were quite unanimous in their castigation of Whisnant's
stapling . Rowe , who testified that he personally inspects two to three finished coaches
per day and that about five or six per day was average total production , remembered
three occasions during November and early December 1964 when he called Quality
Inspector Sheppard 's attention to faulty stapling . Sheppard testified that the stapling
was bad "on the majority of coaches," and that "it would straighten out maybe for
one or two coaches." Sheppard testified that the corrections had been made prior to
Rowe's inspections but that the latter pointed out bad stapling "roughly half a dozen
times" in November and early December , and that Sheppard reported bad stapling to
Foreman Hughes about twice a week in this period . Hughes at first corroborated
Sheppard in this regard, and added that he had criticized Whisnant " several times."
According to Hughes, the quality of Whisnant's work would fluctuate in that it would
be good for a few days and then it would revert . Hughes admitted , however, that
during the November period of larger molding , Whisnant's work was more satis-
factory, and that he (Hughes) "wasn't bothered too much along in there." Hughes
further testified that in December Whisnant's work deteriorated, and that every one
of the 48 coaches produced between December 1 and 10 was badly stapled. Hughes
also testified that about December 1 he recommended Whisnant's discharge to Plant
Superintendent Harris, but Harris at that time demurred. Harris' testimony is that he
spoke to Hughes 10 or 12 times in 3 or 4 weeks, beginning early in November, about
the bad stapling. According to Harris, he decided to discharge Whisnant on Decem-
ber 10 when Harris allegedly found Whisnant "laying down on the job," a matter
discussed below.
The impact of the testimony of the company witnesses, in short, is that Whisnant's
work was poor and that he had been warned about it; the testimony of Whisnant and
Hunnewell is directly to the contrary on both points. Data supplied by the Company
establishes that from the time Rowe took charge of the plant in the late spring of 1964
until Whisnant's discharge on December 10, the Company had discharged only 15
other employees of whom only 4 had been employed as long as Whisnant. Of those,
two were discharged because "attendance and attitude bad," a third was let go after 3
years for reasons which do not appear, and the fourth because he "installed furnaces
crooked-would make no effort to correct problem." At this time the Company had
approximately 100 employees in the plant, and it was concerned over the high rate of
employee turnover, particularly in the winter months when other employment in the
area was relatively easy to obtain. Among the men discharged was one Prevatt, who
was let go on September 25, 1964, after 3 weeks of employment. The company
exhibit recites as to the reasons for his discharge:
Worked at exactly the same job as Whisnant. Discharged for
A. Would not use correct staple pattern.
B. Failed to apply glue.
C. "Ran Wild" w/staple gun.
This was the third job we tried the man on. Hughes states that he would not
try to do the job properly.
The company-furnished data casts some doubt on the Company's explanation of
Whisnant's discharge. The Company did not try Whisnant on any other job, as it had
Prevatt and some others on its list of dischargees. Yet Whisnant "was a good
worker" who "had great possibilities," according to Foreman Hughes, who also
admitted that he was apt to transfer, rather than discharge, employees with "potential
ability." His somewhat unilluminating observation as to the failure to transfer
Whisnant was "We just didn't," although he had "thought about it." Another peculiar
circumstance is that Prevatt's mistakes were tolerated only briefly, whereas Whisnant
was retained from August to December and given a raise in September. To be sure,
the attack on Whisnant centered on his work in November and December, a period
in which (if Sheppard is to be credited) Whisnant rarely turned out a single satis-
factory job. The Company suggests that it is mere coincidence that this continued
poor work culminated in his discharge within the same week in which he was identified
as the leader of the union movement just getting under way at the plant.
A further problem in the disposition of the Whisnant matter arises from the conflict
in the record concerning the respective jobs of Whisnant and Hunnewell. The record
is clear that Hunnewell was not reproved and that his work was satisfactory. But
according to both Whisnant and Hunnewell, they worked together, frequently on the
identical partition, and it was impossible at the conclusion of a job to tell which of
them was responsible for any particular stapling. Several company witnesses, on the
other hand , testified that Hunnewell did the smaller, and Whisnant the larger, parti
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, and that the faulty workmanship was in the latter group. The record shows
that Hunnewell was hired in September, and that Prevatt, who was discharged in
September, worked (in the Company's words) "at exactly the same job as Whisnant."
From this, it might be reasonable to infer that Hunnewell replaced Prevatt. Even if
this be true, however, the Company's reference to "the same job as Whisnant" need
not be taken so literally as to imply that their work was interchangeable, as it could as
as easily mean that their work was of the same type.
The foregoing discussion illuminates , I trust, the difficulties in this case. General
Counsel's contention that Whisnant was discharged for union activities draws support
from the timing of the discharge in relation to the union drive and the Company's
knowledge of Whisnant's role therein, the Company' s need for experienced men, its
failure to try Whisnant at some other work despite its admission of his ability, and
the testimony of Whisnant and Hunnewell that they had been praised, not criticized
for their work, which they regarded as fungible . Arrayed against that is the testimony
of company witnesses that Whisnant's stapling was poor and had been the subject of
repeated complaints which had been relayed to him.
To some extent I regard Whisnant and Hunnewell as overstating Whisnant's case,
and I also find the company testimony just referred to as inherently somewhat self-
contradictory. Whisnant's self-interest is apparent , and Hunnewell's support, although
less suspect, is not altogether credible. For example, I find that the 3/4-inch molding
was not the molding in use in September and October 1964. I also doubt that Hughes
was as frequent in his praise of their work as their testimony would indicate. But the
company witnesses, too, cannot be accepted at full value. Rowe, who testified that
he saw 3/4-inch molding on only 3 days was grossly understating the facts; it was in
use for several weeks. Rowe also testified that he first heard rumors of the Union on
December 10, but other company witnesses declared that Rowe discussed the Union
with them, counseling them to stay out of the matter, at a meeting held prior to that
date. Sheppard, whose demeanor was that of a witness eager to support his employ-
er's case and to blacken Whisnant, patently exaggerated the extent of Whisnant's
defective work, for Sheppard's report of uniformly bad work and of biweekly com-
plaints to Hughes cannot be squared with the latter's admission that during the
November period of larger molding Whisnant's work "wasn 't so awful bad."
With the record in this state , it might be concluded that General Counsel, on whom
the burden of proof rests, had established suspicious circumstances but no prepon-
derance of proof that Whisnant's discharge was unlawfully motivated. But the
testimony of Glenn Mintz is not to be overlooked and in my judgment it tilts the
scale heavily in favor of the General Counsel.
Mintz was a leadman at the time of Whisnant's discharge, but he was a supervisor
at the time he testified, having succeeded to Hughes' position in the cabinet shop.
Although called by General Counsel, Mintz showed no tendency in his testimony
to favor the position of the prosecution, and on the contrary might be characterized
as a somewhat reluctant witness while on direct examination. In any event I regard
him as a credible witness and credit his testimony which, as we shall see, seriously
damaged the Company's case. According to Mintz, he was a leadman over 15
employees including Whisnant, but did not closely observe the work of Whisnant and
three others. He regarded Whisnant as a hard worker, and found no fault with
him. Mintz was "curious" and "surprised" when Whisnant was discharged. And
Mintz categorically stated that prior to Whisnant's discharge he (Mintz) had never
received any complaints from his supervisors about Whisnant's work. Now, Mintz'
own comments about Whisnant's work need not be given particular weight, as Mintz
did not closely supervise it. But he was the leadman over the group, and it would
be incredible if Sheppard, Harris, and Hughes had complained regularly for weeks
about Whisnant's poor work that the leadman would not have heard of it. Indeed,
Hughes testified that he was "sure" he mentioned to Mintz the difficulties with
Whisnant "several times." I have no doubt that Mintz was testifying truthfully when
he denied ever hearing criticisms of Whisnant. His testimony not only gives the lie
to Hughes in this regard , but effectively corroborates Whisnant that the latter had
not in fact been under the attack which the company witnesses said had been levelled
against him. This is not to say that Whisnant's work was above reproach. It is to
say, however, that the shortcomings urged at the hearing were not the motivating
ground for his discharge, and that Mintz' testimony establishes that Whisnant's work
had not been the subject of any adverse comment to his leadman.
Harris testified that he finally decided to discharge Whisnant when he found
Whisnant being nonproductive on the afternoon of December 10. This ground, less
strenuously urged by the Company than the "faulty stapling" ground , is dispelled
by the testimony, which I credit , that both Whisnant and Hunnewell were short of
tasks of a less necessary nature than their usual work, a fact of which they had made
their foreman aware. Hughes' denial of this is discredited; his credibility generally
DIVCQ-WAYNE INDUSTRIES, INC. 981
is weak in view of the Mintz contradiction discussed above, and he admitted being
aware that both Whisnant and Hunnewell were engaged in putting frames together,
a task they normally did more rapidly than they did that day.
The Company's giving of a false explanation for Whisnant's discharge lends
further support to General Counsel's case , already strong in circumstantial evidence.
The Company urges that the record discloses no union animus on its part. It is
true that Rowe urged neutrality upon his supervisors, but likewise true that they
disobeyed instructions. Without repeating here the violations of Section 8(a)(1)
recounted above, it suffices to say that they disclose something less than neutrality
on the subject of the Union. In any event, where within a week of the opening
of the union campaign the known union leader is discharged, although the Company
admits his potential is great, it needs employees and is concerned about turnover,
and a false reason is given for the action, it seems fair to conclude, as I do, that
the preponderance of the evidence leads to the finding that his union leadership was
a motivating factor in his discharge.
II. THE REMEDY
I shall recommend that the Company cease and desist from its unfair labor prac-
tices, that it reinstate Whisnant with backpay computed in accordance with the
formulas set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing
& Heating Co., 138 NLRB 716, and that it post appropriate notices. The instant
case is like N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4), in that it
concerns a discriminatory discharge and other violations of Section 8(a)(1). For
reasons there stated by the court, I am recommending the issuance of a broad
cease-and-desist order.
CONCLUSIONS OF LAW
1. By inquiring of employees as to the names of those circulating union cards, by
requesting an employee to advise management if he was given a union card, and by
repeatedly indicating to employees that management was aware of the identity of
the union leader, the Company engaged in unfair labor practices affecting commerce
within the meaning of Sections 2(6) and (7) and 8(a)(1) of the Act.
2. By discharging William Whisnant because of his union activity the Company
engaged in an unfair labor practice affecting commerce within the meaning of Section
8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case, and pursuant to Section 10(c) of the Act, it is hereby ordered
that the Respondent, Divco-Wayne Industries, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its Leesburg, Florida, employees as to their own or
their fellow employees' activities in or on behalf of International Brotherhood of
Firemen, Oilers, Powerhouse Operators, and Maintenance Men, AFL-CIO, or any
other labor organization.
(b) Discharging or otherwise discriminating against any employee because of
membership or activity in the above-named or any other labor organization.
(c) In any other manner interfering with, restraining, or coercing any employee
in the exercise of his right to join or assist the above-named or any other labor
organization.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer to reinstate William Whisnant to his former or a substantially equivalent
position , without prejudice to his seniority or other rights and privileges, and make
him whole in the manner described in the portion of the Trial Examiner's Decision
entitled "The Remedy" for any loss of earnings suffered by reason of the discrim-
ination against him.
(b) Notify William Whisnant 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 of
1948, 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 payments records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant at Leesburg, Florida, copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by an authorized representative of the
'Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith .5
* In the event that this Recommended Order be 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 be 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".
5In the event that this 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 the Respondent has taken to comply herewith."
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer William Whisnant his former job and pay him for wages he
lost since December 10, 1964.
All our employees have the right to join or assist International Brother-
hood of Firemen, Oilers, Powerhouse Operators, and Maintenance Men,
AFL-CIO, or any other union. They also have the right not to join or assist
any union.
WE WILL NOT question them as to their union activities or the union activities
of their fellow employees, take any action against them for engaging in union
activity, or in any other manner interfere with, restrain, or coerce them in
their exercise of those rights.
DIVCO-WAYNE INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) , (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 706
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
Alton-Wood River Building and Construction Trades Council,
AFL-CIO; Local 553, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO; and Frank Harrelson
and Alton District Independent Contractors and Associates.
Case No. 14-CC-276. September 3,1965
DECISION AND ORDER
On June 4, 1965, Trial Examiner A. Bruce Hunt issued his Decision
in the above-entitled proceeding, finding that the Respondents had
154 NLRB No. 78.