Diversified Enterprises

National Labor Relations Board - Board Decisions

Mar 26, 2009

353 N.L.R.B. 1174 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 120
1174
Diversified Enterprises, Inc. and Mid-Atlantic Re-
gional Council of Carpenters, West Virginia Dis-
trict, United Brotherhood of Carpenters and
Joiners of America. Case 9–CA–43110
March 26, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On July 27, 2007, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed limited cross-exceptions, a supporting brief, and
a brief answering the Respondent’s exceptions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs2 and has decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the recom-
mended Order as modified below.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The General Counsel’s answering brief asserts that the Board
should not consider the Respondent’s exceptions because they fail to
comply with Sec. 102.46(b) of the Board’s Rules and Regulations. We
find that the Respondent’s exceptions are sufficient to satisfy the “sub-
stantial compliance” standard, and thus we have considered them. See,
e.g., Pennant Foods, 352 NLRB 451, 451 fn. 1 (2008).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, the Respondent argues that the judge erroneously relied
on hearsay testimony, specifically employee Robert Hornsby’s testi-
mony that Supervisor Brian McMahan told Hornsby that Jack
Whitaker, the Respondent’s president and chief executive officer, had
told Supervisor Warren Houchins to “lay off or get rid of” employees.
We disagree. The finding of an 8(a)(1) violation in this regard is based
on Hornsby’s nonhearsay testimony about a threat that a supervisor
made directly to him. See, e.g., Buckeye Electric Co., 339 NLRB 334,
334 fn. 1 (2003), affd. mem. 116 Fed.Appx. 709 (6th Cir. 2004).
Further, we reject the Respondent’s argument that the judge denied
it due process by failing to enforce its subpoena duces tecum with
regard to witness affidavits. Pursuant to Sec. 102.118(b)(1) of the
Board’s Rules and Regulations, the Respondent was provided with
witnesses’ affidavits prior to its cross-examination of those witnesses,
and it had an opportunity to cross-examine those witnesses about their
prior statements. See, e.g., Success Village Apartments, 347 NLRB
1065, 1065 (2006).
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by demoting Hornsby and removing certain benefits
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Diversi-
fied Enterprises, Inc., Mount Hope, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) Threatening employees because they engage in
activities on behalf of or in support of the Mid-Atlantic
Regional Counsel of Carpenters, West Virginia District,
United Brotherhood of Carpenters and Joiners of Amer-
ica, or any other union.”
2. Delete paragraphs 1(d), (e), and (f), and reletter the
subsequent paragraphs.
3. Substitute the attached notice for that of the admin-
istrative law judge.

from him, we disavow his reliance on Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1984), cert. denied 455 U.S. 989
(1982). Wright Line does not apply here because the Respondent con-
cedes that its actions were motivated solely by Hornsby’s protected
activities. The Respondent’s sole defense was that Hornsby was a
supervisor. As the Respondent acted on a purported, but erroneous,
belief that Hornsby was a supervisor, it violated the Act as alleged.
See, e.g., Barstow Community Hospital, 352 NLRB 1052 (2008).
In adopting the judge’s findings that the Respondent’s supervisors
made statements that violated Sec. 8(a)(1), we find it unnecessary to
pass on his finding that Houchins’ statement that employees’ union
activities had opened up a “can of worms” was an unlawful threat, as
such a finding would be cumulative of other threats found in this case.
We also find it unnecessary to pass on the judge’s finding that the
stipulated supervisors were the Respondent’s agents even if they were
not supervisors within the meaning of the Act. Further, we note that
the Respondent’s exceptions are very limited. In this regard, the Re-
spondent argues that some of the supervisors’ statements were nonco-
ercive only because the supervisors did not have the authority to actu-
ally effect the threats that they conveyed. However, the fact that they
may not have had the authority to actually make those decisions does
not render their statements noncoercive. Moreover, the judge found
that the supervisors here did have the authority to convey discipline and
discharge decisions.
4 The General Counsel’s cross-exceptions request that the Board al-
ter its current practice of awarding only simple interest on backpay and
other monetary awards and instead adopt a policy of compounding
interest on a quarterly basis. Having duly considered the matter, we are
not prepared at this time to deviate from our current practice of assess-
ing simple interest. See Sawgrass Auto Mall, 353 NLRB 436 fn. 3
(2008).
DIVERSIFIED ENTERPRISES 1175
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT threaten employees because they engage
in activities on behalf of or in support of the Mid-
Atlantic Regional Counsel of Carpenters, West Virginia
District, United Brotherhood of Carpenters and Joiners of
America, or any other union.
WE WILL NOT inform employees that employees have
been demoted because they have engaged in union activi-
ties.
WE WILL NOT inform employees that they are working
less favorable shift hours because they have engaged in
union activities.
WE WILL NOT demote employees, or take away their
company vehicles, gas cards, or their lodging expense
reimbursements because they engage in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Robert Hornsby whole for any loss of
earnings and loss of benefits, including taking away his
company truck, gas card, and lodging expense reim-
bursements, suffered as a result of the discrimination
against him in the manner set forth in the Board’s deci-
sion.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful demotion and loss of benefits, including taking away
his company truck, gas card, and lodging expense reim-
bursements, of Robert Hornsby and, within 3 days there-
after, notify him in writing that this has been done and
that the demotion and loss of benefits will not be used
against him in any way.
DIVERSIFIED ENTERPRISES, INC.
David Ness, Esq., for the General Counsel.
Robert Dunlap, Esq., of Beckley, West Virginia, for the Re-
spondent.
Brian Prim Esq., of Hurricane, West Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Beckley, West Virginia, on May 29, 2007. The charge
was filed on September 15, 2006, by the Mid-Atlantic Regional
Council of Carpenters, West Virginia District, United Brother-
hood of Carpenters and Joiners of America (the Union) against
Diversified Enterprises, Inc. (Respondent).1 The complaint
issued on March 30, 2007, as amended at the hearing, alleges
Respondent violated Section 8(a)(1) of the Act by making vari-
ous statements to employees concerning their union activities
on about August 29 and September 5 and 6; and that Respon-
dent violated Section 8(a)(1) and (3) by on August 29, demot-
ing employee Robert Hornsby, and taking away Hornsby’s use
of a company credit card, company truck, and travel benefits
because of his union activities.2 The complaint also alleges
that: Jack Whitaker, Respondent’s president and CEO; Jack
Scott, construction manager; Warren Houchins, on-site supervi-
sor; and Brian McMahan, project manager are supervisors and
agents of Respondent within the meaning of Section 2(11) and
(13) of the Act. Respondent admits that Whitaker is its supervi-
sor and agent; and that Scott, Houchins, and McMahan are
supervisors within the meaning of Section 2(11), but it denies
that the latter three are Respondent’s agents within the meaning
of Section 2(13) for the statements attributed to them in the
complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following3
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged been engaged
in providing general contracting for water and sewer develop-
ment services for private and public entities from its principal
office in Mount Hope, West Virginia. During the past 12
months, in conducting these operations, Respondent performed

1 All dates herein are in 2006, unless otherwise stated.
2 Respondent amended its answer at the outset of the hearing to raise
the defense that Hornsby was a supervisor within the meaning of Sec.
2(11) of the Act.
3 In making these findings, I have considered all the witnesses’ de-
meanor, the content of their testimony, and the inherent probabilities of
the record. In certain instances, I have credited some but not all of what
a witness said. See NLRB v. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950), reversed on other grounds 340 U.S. 474 (1951). All
testimony has been considered, if certain aspects of a witness’ testi-
mony are not mentioned it is because it was not credited, or cumulative
of the credited evidence or testimony set forth above. Further discus-
sions of the witnesses’ testimony and credibility are set forth through-
out this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1176
services valued in excess of $50,000 in States other than the
State of West Virginia. Respondent admits and I find Respon-
dent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Robert Hornsby started working for Respondent on Septem-
ber 11, 2001, as a foreman, a position he maintained until he
was demoted on August 29. Hornsby quit his employment on
December 14. Hornsby was hired by Whitaker and he was told
when he was hired that, as a foreman, Hornsby was going to
receive a gas card, and one set of tires for his personal vehicle
per year. Hornsby used the gas card to purchase gas for his
personal vehicle for his commute to and from work, as well as
for on the job gas expenses. Hornsby testified that around 2-1/2
to 3 years after he was hired, he was given the use of a com-
pany truck because he hauled tools including a generator and a
vibrator around for the Company, and he would have to unload
them from his personal vehicle when he went home over the
weekend. Hornsby brought this problem to Respondent’s then
Vice President Mike Danette’s attention, and Danette gave
Hornsby the use of one of Danette’s personal trucks to use as a
company truck. The truck was a 1991 Ford pickup. Hornsby
testified there were foremen on other jobs who received a gas
card, and tires for their personal vehicles, but Hornsby was the
only foreman who had the use of a company truck since he had
to haul heavy equipment to and from the jobsite as a require-
ment of his job. Hornsby testified that while he was a foreman
when he traveled out of town Respondent compensated him for
a portion of his hotel expenses. This benefit ended when
Hornsby was demoted from the foreman position on August 29,
as did his use of the company truck to drive to and from work
and the gas card. Hornsby still had the use of the company
truck to haul things on the job, but he could no longer take it
home. Hornsby testified that after Hornsby’s August 29 demo-
tion, Hornsby no longer gave his crew assignments on the job,
that Houchins gave the crew their assignments. Hornsby sus-
tained a back injury on September 15, at which point he
stopped working for the Company for about 6 weeks. Hornsby
returned to work and then quit on December 14.
During 2006, Hornsby worked for Respondent at the Cool
Ridge Flat Top PSD project (PSD site) near Ghent, West Vir-
ginia. Hornsby began working on that job as a foreman in
January. Respondent was a contractor at the project where it
was building a sewage treatment plant, including the concrete
tanks and office buildings. Hornsby reported to Houchins at
the PSD site, and Houchins reported to Whitaker. Hornsby
testified that Houchins met with the crew in the morning and
then “I was pretty much left in charge up there when he left.”
Hornsby testified there were days when Houchins gave crew
members specific assignments, and some days when Hornsby
gave the crew members their assignments without any input
from Houchins. Hornsby estimated that he gave the crew as-
signments by himself around 2 to 3 days a week. Hornsby
testified he could not approve time off for crew members.
Rather, they had to fill out a form to be turned into the office,
and Hornsby referred their requests to Houchins for approval.
Hornsby could not approve overtime. Hornsby attended Mon-
day morning safety meetings which were attended by every
employee of the Company. Hornsby opened the gate to the
jobsite most mornings.
Hornsby testified his work for Respondent was building
sewage plants and water treatment plants. Hornsby testified that
he was given a copy of the blueprints for the job, which he
read, and that he gave people their assignments at the site based
on what was in those blueprints. He testified that after he gave
people their assignments that Hornsby himself performed hands
on work. He testified that he laid out all the steel and forms for
the buildings. Hornsby testified he performed carpentry work
including, tying steel, pouring and finishing concrete, pulling
wire, helping electricians pull wire, setting manholes, pump
stations, and other “routine work that happens on a plant.” He
testified he spent all day working with his tools. Hornsby testi-
fied Houchins came to the job in the morning, during lunchtime
on some days and in the evenings to check on the crew to “see
how we did.” Hornsby and Houchins each had company cell
phones allowing them to communicate during the course of the
day.
Hornsby testified that a project such as working on a tank
would take 2 or 3 months, and that, “once you started it that’s
what you worked on.” Hornsby testified when Houchins arrived
in the morning he brought in blueprints and reviewed with
Hornsby what Houchins wanted the crew to do. Hornsby testi-
fied Houchins gave Hornsby’s crew its assignment. Hornsby
testified, “Then I would tell the—we would split the guys up,
because I’d worked with them and I knowed what kind of du-
ties they were qualified as, what they could do. Then we’d just
split up and do that work.” Hornsby testified in terms of the
employees assignments that “Houchins told me what he wanted
done and then I would send the guys to do the certain things.”
Hornsby testified he made his assignments based on, “Which
ones was qualified, yes, to do that kind of work.” Hornsby testi-
fied there were four or five people on his crew, each with dif-
ferent skills, and he picked the person with the best skills to do
a particular job. Hornsby testified, “I’ve been doing this type of
work for four or five years and when you work with these peo-
ple you know what they can and can’t do. If Rodney was an
operator, you needed an operator, you’d send him. You know
what I mean? Doing carpenter work or—once you work with a
person you can tell what he can and can’t do.”
Hornsby testified there were carpenters, concrete finishers,
and operators on his crew. Hornsby and Mark Treadway were
carpenters, and Treadway was also a concrete finisher. Hornsby
testified that, “Rodney Herndon was our operator and Jody
Satterfield would operate, too, if we needed him.” They oper-
ated excavators, backhoes, rollers, and dump trucks. The car-
penters were not trained to operate those pieces of equipment.
Hornsby testified operators usually operated equipment the
whole day, “unless we like were pouring concrete then every-
body worked on that.” Hornsby testified they poured 300 to
400 yards of concrete at a time, it was an all day project, and
the whole crew worked on it. He testified that everyone could
help by doing such things as handing tools to someone, or
dragging the cord around for a vibrator. He testified, “[T]hey
wouldn’t be exactly finishing the concrete, but they would
DIVERSIFIED ENTERPRISES 1177
help.” Hornsby testified carpenters and laborers had the skills
to finish concrete. He testified, “[O]nce we started pouring you
could tell who was qualified for what.” Hornsby testified that,
“Most of these guys I worked with them at the last plant and I
knowed what they could and couldn’t do.”
Hornsby testified that getting a site ready for a concrete pour,
the operators would bring in 10 steel bars at a time, and while
the carpenters were tying in the 10 bars, the operators would be
retrieving 10 more bars. In addition to the steel bars, the opera-
tors would carry forms, material, and anything else the carpen-
ters needed to the pour location. Houchins would set the time
of when the pour should be made, and then the crew would
work to prepare the site for the pour, the site preparation being
a 2- to 3-week project.
In mid-August, Hornsby contacted the Union and spoke to
Business Agent Luke Begovich. Thereafter, Hornsby spoke to
employees on his crew about the Union. Hornsby then went to
the Union’s office in August accompanied by crew members
Mike Ice, Satterfield, and Treadway. Begovich gave Hornsby a
letter, dated August 15, on the Union’s letterhead stating
Hornsby was a “volunteer organizer,” and that he planned to
exercise his “rights in regard to organizing.”
Hornsby gave the Union’s letter to Whitaker on August 29,
between 6:30 to 7 a.m. They were in Respondent’s office in
Ghent. Hornsby testified that he, Whitaker, Houchins, Brian
McMahan, a project manager for Respondent,4 and Ken
Browning, an inspector for L. A. Gates Engineering (Gates)
were in the office. Gates performed engineering work for the
PSD site. Hornsby testified when he gave Whitaker the letter
that Hornsby told him, “You need to read this.” Hornsby testi-
fied that, Whitaker “looked at it for a few minutes then he told
me that I could not do that. He said I was a supervisor.”
Hornsby replied that he was not a supervisor, that he was a
foreman and did not have the duties of a supervisor. Hornsby
testified Whitaker said that Hornsby could not do that, and that
Hornsby needed to turn in his company truck and company gas
card. Hornsby testified that Whitaker said that Hornsby
“needed to get out of his face before he went off on my ass.”
Hornsby responded that he was not in Whitaker’s face.
Hornsby asked if he could take the truck to the jobsite and
unload the tools. Whitaker agreed and Hornsby left the office.5
Hornsby estimated that he was about 4 or 5 feet apart from
Whitaker when Hornsby presented the letter to Whitaker.
Hornsby denied being in Whitaker’s face. Hornsby testified he
handed Whitaker the letter and that Hornsby stood back.
Hornsby testified, “I was nowhere near his face at the time. I
ain’t never got in his face.”
After Hornsby’s meeting with Whitaker on August 29,
Hornsby went to the PSD site. Hornsby arrived there at 7 a.m.,

4 McMahan is also Whitaker’s son-in-law.
5 Hornsby carried a recorder in his pocket at the time he gave
Whitaker the letter on August 29, because Hornsby thought he would
receive negative feedback at the time he tendered the letter. Respon-
dent’s counsel represented he received an inaudible CD from the Union
in response to a prehearing subpoena. Counsel for the General Counsel
represented that the CD was the tape of the conversation between
Whitaker and Hornsby and that it was not entered into evidence due to
its lack of clarity.
which was starting time, and Houchins came up behind
Hornsby as the crew was loading tools. Hornsby, Treadway,
Ice, Satterfield, and Herndon were at the tool trailer. Hornsby
was outside the trailer, along with Ice and Treadway. Satterfield
and Herndon were inside. Hornsby testified that Houchins
stated that, “You didn’t know what you was getting yourself
into. Look what it’s got you now, got you demoted.” Hornsby
testified Houchins stated, there was nothing wrong with the
Union, and that Houchins was in the Union for 13 years. Then
Houchins told the crew what needed to be done that day and
left.6
Hornsby testified that around noon on August 29 McMahan
drove up to where Hornsby and Treadway were working.
Hornsby testified he asked McMahan if Whitaker was in a bad
mood when Hornsby gave him the letter. McMahan said, “No,
he seemed like he was in a good mood.” McMahan said
Whitaker told Houchins to lay them off or get rid of them, and
he did not care how Houchins did it.”7 Similarly, Treadway
testified that McMahan said, “Well, Jack made it clear to
Warren Houchins that he wants rid of you all.”
Hornsby testified Houchins came out to the jobsite again on
the evening of August 29, while the crew was putting tools
away at the tool trailer. At that time, Treadway handed
Houchins a letter from the Union stating that Treadway was a
voluntary union organizer.8 Hornsby testified there were sev-
eral people there and that Hornsby did not hear all of the con-
versation between Houchins and Treadway. However, Hornsby
saw Treadway give the letter to Houchins, and he heard

6 Treadway testified he started working for Respondent in 2004, and
he was laid off on December 11. He started working at the PSD site in
February and was working there at the time of his layoff. Treadway
was laid off when the project had reached substantial completion.
Treadway was the last carpenter to work on the project. Treadway
testified Hornsby talked to him about going union in August 2006.
Treadway testified he saw Houchins around 7:30 to 8 a.m. at the tool
trailer on August 29. Treadway testified Hornsby was talking about
turning in his letter and Whitaker taking away the company truck and
gas card. Treadway testified Houchins made the comment, “that’s what
you get.” Treadway testified Houchins is a supervisor in that he has the
ability to fire and discipline someone.
7 Hornsby testified there were times when McMahan was Hornsby’s
supervisor. Hornsby testified, “if he comes to my job I’m to answer to
him.” Hornsby testified McMahan was not working the job where
Hornsby was working. Rather, McMahan was at the Flat Top Lake
jobsite. However, Hornsby testified McMahan is a supervisor and that
Hornsby answered to him “on any job.” Hornsby testified that if
McMahan needs something done at the Lake, “then we go do it. When
we set the pump stations on the Lake that was McMahan’s job and I
went over there to set them. They took me over there to assist.”
Hornsby testified that if McMahan came to the plant, “we answered to
him. Everybody, not just me.” Hornsby testified McMahan was visiting
the PSD jobsite every day in that McMahan needed pipe, fittings, and
tools. McMahan’s crew was building the pipeline for the sewer plant
that Hornsby’s crew was working on, which was in close proximity to
where Hornsby’s crew was working. Hornsby testified when
McMahan’s crew did not have any work they then worked along side of
Hornsby’s crew.
8 Treadway testified he met with Begovich in early August, and he
received a letter from the Union dated August 15, stating Treadway was
a voluntary organizer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
Houchins say, “You guys are opening up a can of worms.”
Similarly, Treadway testified that he gave the Union’s letter
announcing Treadway was a voluntary organizer to Houchins
on August 29 at 4:30 p.m. Treadway testified Satterfield was
there, that Ice was a couple of feet behind them, and Hornsby
was there. Treadway testified, “I told him I was waiting to give
my letter to Jack, but Jack never showed back up so I was go-
ing to give it to him. He said he’d just hoped we knowed [sic]
what can of worms we were opening up.”
Hornsby testified that on Tuesday, September 5, Hornsby
had a phone conversation in the evening with Construction
Manager Scott. Hornsby testified that he was driving his per-
sonal vehicle at the time, and Ice was with him. Scott called
Hornsby. Scott told Hornsby that Whitaker was pissed off and
that Whitaker was going to put them on a $15-an-hour job and
take them off the prevailing wage job they were on. Hornsby
asked if Whitaker could do that, and Scott replied, “He’s the
president of the company, he can pretty much do what he
wants.” Hornsby testified the prevailing wage job was paying
between $30 and $38 an hour. Hornsby testified Scott said, “He
said he was going to do us like that to make us quit.” Hornsby
testified Scott said, something like, “It got you demoted.”
Ice testified Hornsby spoke to him about the Union around
August 16 or 17.9 Ice accompanied Hornsby and Treadway to
the union hall on August 30 and spoke to Begovich. Begovich
gave Ice a letter on the Union’s letterhead, dated August 30,
announcing that Ice was a voluntary union organizer. Ice testi-
fied that he handed the Union’s letter to Houchins on Septem-
ber 5, in the morning when Ice arrived at the jobsite. Ice testi-
fied that prior to Labor Day, which was September 4; the em-
ployees on his crew were working four 10-hour shifts a week.
Ice testified he did not work on Monday, September 4. He testi-
fied he thought his scheduled changed during Labor Day week
to five 8-hour shifts a week. Ice testified that on September 6
he had a conversation with Houchins. Ice was finishing con-
crete and Houchins came by. Herndon, an operator, was help-
ing Ice. Ice testified he asked Houchins about the change in
their shift schedule. Houchins said that was the way it was go-
ing to be. Houchins said they brought it on themselves because
of the coming out letters that they handed him and it was
Whitaker’s way of showing them who was the boss.10
A. The Testimony of Andrew (Jack) Whitaker
Whitaker testified that, at the time of the hearing, Respon-
dent had 800 employees at one of its projects and 200 employ-
ees at another project, and that Respondent usually had between
600 to 800 employees. Whitaker testified Whitaker hired
Hornsby in September 10, 2001, as a foreman, and that as a

9 Ice worked for Respondent as a laborer from September 2005 until
he quit on September 7, 2006. Ice started working at PSD site around
April 2006, at which time Hornsby was the foreman on Ice’s crew. At
the time he quit, Ice was finishing concrete at the PSD site.
10 Ice testified that he thought the change in schedule was due to his
union letter, because when the letter came out everything changed. Ice
testified that he had worked construction for about 5 years and that
hours can shift at the end of the summer for day light purposes. There
was no allegation before me that the shift change was violative of the
Act.
foreman there was a superintendent with Hornsby at all the
times. Whitaker testified that when Hornsby received the use of
a company truck that Hornsby became an assistant superinten-
dent or superintendent on various jobs. Whitaker testified
Hornsby became a supervisor the day he received the company
truck. Whitaker testified he had two contracts at the Flat Top
job. Whitaker testified that Hornsby’s primary function at Flat
Top was contract 1, where Hornsby was Whitaker’s concrete
superintendent. Whitaker testified that if he had a major con-
crete pour, he always wanted Hornsby there. Whitaker testified
Hornsby may have also performed some work helping out at
contract 2 at Flat Top.
Whitaker testified there is no difference between a superin-
tendent and assistant superintendent, except the latter has
someone like Whitaker or his brother coming to the jobsite
every morning. Whitaker testified Hornsby was paid by the
hour stating, most of Whitaker’s superintendents were paid by
the hour and given travel time in addition to their hourly pay.
Whitaker could not recall if Hornsby received a raise when he
was made assistant superintendent.11 Whitaker testified that if
Hornsby was a foreman he would not have received a gas card,
a company telephone, or a company truck. Whitaker also testi-
fied Hornsby is one of the best concrete superintendents in his
field.12
Whitaker testified Hornsby had the authority to direct other
laborers. Whitaker testified Houchins would go over with
Hornsby what they wanted done, and he would make sure it got
done by directing the other employees that were working under
him.
Whitaker testified as follows:
Q. You were pleased with his duties as a supervisor?
A. Actually, he was—I rated him as excellent.
JUDGE FINE. So, why was his truck taken away?
THE WITNESS. Because he can’t be a supervisor and be
organizing a Union. He can’t wear both hats on my pro-
ject.
Whitaker testified he took away Hornsby’s truck because
Hornsby handed Whitaker a piece of “paper saying he was

11 While he initially testified in a somewhat ambiguous fashion about
Hornsby’s rate of pay, Whitaker later testified that, prior to the hearing,
Whitaker had reviewed Respondent’s financial records which disclosed
Respondent was paying Hornsby at a carpenter’s rate of pay during the
course of Hornsby’s employment. Whitaker testified that while
Hornsby was being paid at a carpenter’s rate the other carpenters only
received that rate for doing carpenter’s work. Yet, Hornsby received
carpenter’s pay no matter what he was doing, including shoveling
snow. Whitaker claimed that Hornsby earned more than Scott,
Houchins, and McMahan.
12 Whitaker’s claim that Hornsby was a superintendent is not sup-
ported by Respondent’s records. Hornsby’s written performance
evaluation for the period September 10, 2001, to October 1, 2005, lists
him as a carpenter foreman. Hornsby signed the document on October
19, 2005, next to the designation marked, “Employee’s Signature.”
Respondent published an employee phone list dated January 13, 2006.
On the list, Whittaker is listed as president and his brother Bill is listed
as vice president. McMahan and Scott are listed as project managers,
and Houchins is listed as 1 of 17 supervisors. Hornsby is listed as one
of eight foremen.
DIVERSIFIED ENTERPRISES 1179
going to be organizing the Union. He can’t be a supervisor and
a Union organizer.” Whitaker testified he told Hornsby, “[Y]ou
cannot be a supervisor and organize a Union at the same time.
You can’t do that.”13 Whitaker testified Hornsby’s job title
when Whitaker took away his company truck and gas card was
superintendent, not foreman. However, Whitaker testified in a
contrary fashion in his prehearing affidavit taken in February
2007, where he stated the following:
I did tell Hornsby when he gave me his letter that he could not
be in the Union and be a supervisor. When I told him this
Hornsby got mad and he told me that the Union guys prom-
ised me that if I got the men organized he would be able to get
a job with them. Because he was mad over not being able to
be involved with the Union when he became a supervisor I
decided to take his truck and gas card from him. I actually
thought he was quitting by what he said about the Union get-
ting him a job, but he never did quit in September 2006.
Hornsby was not a supervisor when he told me he was in-
volved with the Union. I was telling him that he could not be
a supervisor and involved in the Union. I did not take the
truck away because he was involved with the Union, but only
because he was mad at me.
Whitaker stated in the affidavit that “Hornsby was the supervi-
sor in training and he worked with the crews.” Whitaker also
stated in his affidavit, “There are other supervisors in training at
other job projects, but Hornsby was the only supervisor in train-
ing that I gave a truck to. He had a truck because I liked him
and I was trying to improve his lifestyle.” Whitaker stated in
the affidavit, “I would not consider Hornsby a supervisor with
any authority over those he worked with because he was in
training. If Hornsby wanted someone to do a specific job, he
would go to Houchins and request it and Houchins would tell
the employee what to do.” Whitaker stated in the affidavit that,
“Hornsby was like the lead guy on the crew and his experience
enabled him to tell others what needed to be done. I cannot give
examples of what type of instructions he gave. Mostly Hornsby
just worked and they followed. Any type of changes in the
blueprints or the construction of the building had to be ap-
proved and decided by the engineers.”
Whitaker testified concerning the alleged 8(a)(1) statements
attributed to Scott, Houchins, and McMahan that:
A. Those were their opinions and, you know, I can’t do
anything about their opinions, but they did not have the
authority to make a statement for Diversified Enterprises.
They don’t have the authority to discipline anybody with-
out getting permission from me or my brother.[14]
Whitaker denied their statements were reflective of his or Re-
spondent’s views. Whitaker testified that Houchins, Scott, and

13 Whitaker testified that when he spoke to Hornsby, Hornsby was
mad at him and that “he got up in my face.” Whitaker testified
Hornsby was about 2 feet away. However, Whitaker also testified that
Hornsby was a good employee and that Hornsby “was mindful of his
job and he wanted to move up in the company.”
14 Whitaker testified they had to get approval from Whitaker and his
brother to fire someone. Whitaker testified after they get authorization
from him they will tell someone they are disciplined or fired.
McMahan were still working for Respondent at the time of the
hearing. However, Respondent did not call them to testify.
B. Credibility
General Counsel witnesses Hornsby, Ice, and Treadway tes-
tified in a credible and consistent fashion on direct and cross-
examination. Moreover, Respondent did not call admitted Su-
pervisors Houchins, Scott, or McMahan to refute the testimony
of the General Counsel’s witnesses, although those supervisors
were still in Respondent’s employ. In fact, Whitaker in essence
conceded the statements attributed to the supervisors were
made to the employees as alleged when he testified those
statements were merely the opinions of the supervisors, but
contended the supervisors did not have the authority to make
the statements on behalf of Respondent. Accordingly, I have
credited Hornsby, Treadway, and Ice, considering their de-
meanor, with respect to those allegations made in the complaint
concerning statements by Whitaker, Houchins, McMahan, and
Scott.
In this regard, I did not find Whitaker to be a very credible
witness. He claimed at the hearing that Hornsby was given the
job title of assistant superintendent or superintendent when
Hornsby received the use of a company truck and that Hornsby
was a supervisor. This testimony is contradicted in Whitaker’s
prehearing affidavit in which he repeated several times that
Hornsby was not a supervisor, but just a supervisor in training,
and that the reason he gave Hornsby the use of a truck was not
because he was a supervisor, but because Whitaker felt sorry
for Hornsby and wanted to improve his life style. Whitaker’s
claim that Hornsby was given the job title of assistant superin-
tendent or superintendent when Hornsby received the use of a
company truck is also contradicted by documentary evidence.
By Hornsby’s uncontradicted testimony, Hornsby received the
company truck some time in 2004. Yet, Hornsby’s evaluation
issued in October 2005 lists Hornsby as a foreman, and a phone
list published in January 2006 by Respondent lists Hornsby as a
foreman. Thus, I have credited Hornsby over Whitaker and
have concluded that Hornsby was never made assistant superin-
tendent or superintendent. Rather, Hornsby had the title of
foreman during the course of his employment with Respondent,
until Hornsby was demoted from that position on August 29.
I credit Hornsby’s version of their August 29 conversation
over Whitaker’s. Hornsby testified when he presented the Un-
ion’s letter to Whitaker they were two arms’ lengths apart and
after he gave the letter to Whitaker that Hornsby stood back.
Hornsby denied getting in Whitaker’s face. On the other hand,
Whitaker testified Hornsby stood within 2 feet of him and was
in his face. I find Whitaker’s testimony extremely unlikely.
Whitaker’s claim as to Hornsby’s behavior would have been
out of character for Hornsby who Whitaker otherwise described
as a good employee, “mindful of his job,” and who wanted to
move up in the Company. Moreover, Whitaker impressed me
as an individual who in running a large operation was used to
getting his way and who would have no problem of forcefully
letting a subordinate know his opinion. Whitaker’s testimony at
the hearing also contradicted his testimony in his affidavit as to
the reason Hornsby was demoted. Whitaker testified at the
hearing that Hornsby was demoted because he could not be a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
supervisor and organize for the Union at the same time. How-
ever, in his prehearing affidavit, Whitaker denied that Hornsby
was a supervisor or that Hornsby’s demotion had anything to
do with Hornsby’s union activity. Rather, Whitaker claimed he
demoted Hornsby because during the conversation in which
Hornsby presented Whitaker with the letter from the Union that
Hornsby was “mad at me.” Accordingly, I have credited
Hornsby’s testimony in full and in particular over Whitaker’s
description of the August 29 incident leading to Hornsby’s
demotion.
C. Analysis
1. Hornsby’s alleged supervisory status
Respondent argued at the hearing that Hornsby was a statu-
tory supervisor because he responsibly directed employees.
Respondent maintained this argument in its posthearing brief,
and additionally argued that Hornsby exercised independent
judgment in the assignment of employees. The burden of prov-
ing an individual is a statutory supervisor rests with the party
asserting it. See NLRB v. Kentucky River Community Care,
532 U.S. 706, 711 (2001). Section 2(11) of the Act defines
“supervisor” as
[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
In NLRB v. Kentucky River Community Care, supra at 713, the
Court stated Section 2(11) of the Act:
sets forth a three-part test for determining supervisory status.
Employees are statutory supervisors if (1) they hold the au-
thority to engage in any 1 of the 12 listed supervisory func-
tions, (2) their “exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment,” and (3) their authority is held “[i]n the interest of
the employer.” [NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 574 (1994).]
In September 2006, the Board issued its decisions in
Oakwood Healthcare Center, 348 NLRB 686; Croft Metals,
Inc., 348 NLRB 717, and Golden Crest Healthcare, 348 NLRB
727, which specifically address the meaning of “assign,” “re-
sponsibly to direct,” and “independent judgment,” as those
terms are used in Section 2(11) of the Act. The Board in Croft
Metals, Inc., supra at 721, in discussing Oakwood Healthcare,
supra, stated the following:
The authority to “assign” refers to “the act of designat-
ing an employee to a place (such as a location, department,
or wing), appointing an employee to a time (such as a shift
or overtime period), or giving significant overall duties,
i.e., tasks, to an employee. . . . In sum, to ‘assign’ for pur-
poses of Section 2(11) refers to the . . . designation of sig-
nificant overall duties to an employee, not to the . . . ad
hoc instruction that the employee perform a discrete task.”
[Id. at 689.]
The authority “responsibly to direct” is “not limited to
department heads,” but instead arises “[i]f a person on the
shop floor has ‘men under him,’ and if that person decides
‘what job shall be undertaken next or who shall do it,’ . . .
provided that the direction is both ‘responsible’ . . . and
carried out with independent judgment.” [Id. at 691.]
“[F]or direction to be ‘responsible,’ the person performing
the oversight must be accountable for the performance of
the task by the other, such that some adverse consequence
may befall the one providing the oversight if the tasks per-
formed are not performed properly.” [Id. at 691–692.]
“Thus, to establish accountability for purposes of respon-
sible direction, it must be shown that the employer dele-
gated to the putative supervisor the authority to direct the
work and the authority to take corrective action, if neces-
sary. It also must be shown that there is a prospect of ad-
verse consequences for the putative supervisor if he/she
does not take these steps.” [Id. at 692.]
“[T]o exercise ‘independent judgment,’ an individual
must at minimum act, or effectively recommend action,
free of the control of others and form an opinion or evalua-
tion by discerning and comparing data.” [Id. at 692, 693.]
“[A] judgment is not independent if it is dictated or con-
trolled by detailed instructions, whether set forth in com-
pany policies or rules, the verbal instructions of a higher
authority, or in the provisions of a collective-bargaining
agreement.” [Id. at 693.] “On the other hand, the mere ex-
istence of company policies does not eliminate independ-
ent judgment from decision-making if the policies allow
for discretionary choices.” [Id. at 693.] (citations omitted).
Explaining the definition of independent judgment in rela-
tion to the authority to assign, the Board stated that “[t]he
authority to effect an assignment . . . must be independent
[free of the control of others], it must involve a judgment
[forming an opinion or evaluation by discerning and com-
paring data], and the judgment must involve a degree of
discretion that rises above the ‘routine or clerical.” [Id. at
693; citations omitted.]
In the instant case, Hornsby had the title of carpenter’s fore-
man during the course of his employment with Respondent
until his August 29 demotion. Hornsby was paid on an hourly
basis at a carpenter’s pay rate, regardless of whether Hornsby
was actually performing carpenter’s work. Hornsby, until his
demotion, was given the use of a company gas card and he was
allowed to charge gasoline for his commute to work on the
card. Hornsby, as a foreman, was provided a portion of his
lodging costs when he traveled for Respondent. Hornsby was
also given a free set of tires for his personal vehicle until he
received the use of a company truck. Hornsby was eventually
given the use of a company truck because he was being re-
quired to haul heavy equipment to and from the jobsite, and to
his home on a nightly basis. As a foreman, Hornsby did not
attend management meetings, and he could not approve leave
requests or overtime. There is no contention that Hornsby
could discipline employees or effectively recommend such
DIVERSIFIED ENTERPRISES 1181
action. There is no contention that Hornsby was involved in
the evaluation of employees. In fact, the only evaluation placed
into evidence was one for Hornsby covering a 4-year period
ending on October 1, 2005. Hornsby’s title on the evaluation is
carpenter foreman. Item 10 on the evaluation evaluates com-
munication skills with “other employees.” Item 11 on the
evaluation, discusses leadership concerning “the ability to mo-
tivate coworkers to accept and complete assignments in a
timely and satisfactory” manner. There is no item in the evalua-
tion showing that Hornsby had authority over or was responsi-
ble for the work of others. There is no claim that the evaluation
impacted on Hornsby’s pay, or ability to retain his job as car-
penter’s foreman. Hornsby was not listed as one of Respon-
dent’s 17 supervisors in its January 2006 phone list. Rather,
Hornsby was included in a separate category noted as foreman.
During 2006, Hornsby worked for Respondent at the PSD
site where Respondent was a contractor building a sewage
treatment plant. Hornsby reported to Houchins who reported to
Whitaker. Houchins met with Hornsby’s crew during the
morning, at lunch, and sometimes at the end of the day to check
on how the crew performed. In Houchins absence, Hornsby
was left in charge of the crew. However, Hornsby and
Houchins were provided company cell phones to allow them to
communicate during the day. Hornsby testified there were days
when Houchins gave crew members specific assignments, and
some days when Hornsby gave the crew members their assign-
ments without Houchins input. Hornsby was given a copy of
the blueprints for the job and he gave people their assignments
based on the blueprints. After he gave his crew their assign-
ments, Hornsby himself performed hands on work including
laying the steel and forms for the buildings. Hornsby per-
formed carpentry work including, tying steel, pouring and fin-
ishing concrete, pulling wire, helping electricians pull wire,
setting manholes, and other “routine work that happens on a
plant.” He spent all day working with his tools.
Hornsby testified that a project such as working on a tank
would take 2 or 3 months, and that “once you started it that’s
what you worked on.” When Houchins arrived in the morning,
he brought blueprints and Houchins reviewed with Hornsby
what Houchins wanted the crew to do. Hornsby testified
Houchins gave Hornsby’s crew its assignment. Hornsby testi-
fied, “[T]hen we would split the guys up, because I’d worked
with them and I knowed [sic] what kind of duties they were
qualified as, what they could do. Then we’d just split up and do
that work.” Hornsby testified in terms of the employees as-
signments that, “Houchins told me what he wanted done and
then I would send the guys to do the certain things.” Hornsby
testified he made his assignments based on, “[w]hich ones was
qualified, yes, to do that kind of work.” Hornsby testified there
were four or five people on his crew, each with different skills,
and he picked the person with the best skills to do a particular
job. Hornsby testified there were carpenters, concrete finishers,
and operators on his crew. Hornsby and Treadway were carpen-
ters, and Treadway was also a concrete finisher. Herndon and
Satterfield could operate equipment, including excavators,
backhoes, rollers, and dump trucks. The carpenters were not
trained to operate those pieces of equipment. Hornsby testified
operators usually operated equipment the whole day “unless we
like were pouring concrete then everybody worked on that.”
Pouring concrete was a whole day project and the whole crew
worked on it. Everyone could help by doing such things as
handing tools to someone, or dragging the cord around for a
vibrator. He testified, “[T]hey wouldn’t be exactly finishing
the concrete, but they would help.” Hornsby testified carpen-
ters and laborers had the skills to finish concrete. Hornsby
testified that getting a site ready for a concrete pour the opera-
tors would bring in 10 steel bars at a time, and while the car-
penters were tying in the 10 bars the operators would be retriev-
ing 10 more bars. In addition to the steel bars, the operators
would carry forms, material, and anything else the carpenters
needed to the pour location. Houchins would set the time when
the pour should be made, and then the crew would work to
prepare the site for the pour, the site preparation being a 2- to 3-
week project.
Whitaker stated the following in his prehearing affidavit, “I
would not consider Hornsby a supervisor with any authority
over those he worked with because he was in training. If
Hornsby wanted someone to do a specific job, he would go to
Houchins and request it and Houchins would tell the employee
what to do.” Whitaker stated in the affidavit that,
Hornsby was like the lead guy on the crew and his ex-
perience enabled him to tell others what needed to be
done. I cannot give examples of what type of instructions
he gave. Mostly Hornsby just worked and they followed.
Any type of changes in the blueprints or the construction
of the building had to be approved and decided by the en-
gineers.
I find that Respondent failed to meet its burden of establish-
ing that Hornsby was a supervisor within the meaning of Sec-
tion 2(11) of the Act. While Hornsby gave his crew members
individual tasks those assignments were repetitive in nature and
based on skills sets largely defined by the crew member’s job
classification, i.e., carpenters versus operators. Houchins met
with the crew and Hornsby in the morning and informed the
crew of its actual assignment. Houchins met the crew multiple
times on a daily basis and was in phone contact with Hornsby.
Houchins used his judgment for when it was necessary for him
to step in and assign the crew members individual tasks which
he did during the course of the week. Thus, I find that the level
of judgment Hornsby used in assigning tasks did not rise above
the level of routine. See Iron Workers Local 28 (Virginia Assn.
of Contractors), 219 NLRB 957, 961 (1975), where a group of
working foremen and a general foreman were found not to be
statutory supervisors when they acted “within a very limited
sphere in giving instructions to employees, bounded by the
blueprints and instructions from the contractor or his supervi-
sor.” Their authority was found to be routine not requiring the
use of independent judgment. See also Electrical Workers
IBEW Local 3 (Cablevision), 312 NLRB 487, 488–489 (1993)
(Monopoli); George C. Foss Co., 270 NLRB 232, 234–235
(1984) (Merrow), enfd. 752 F.2d 1407 (9th Cir. 1985); and
Ogden Allied Maintenance Corp., 306 NLRB 545, 546 (1992)
(Michot), enfd. 998 F.2d 1004 (3d Cir. 1993).
I also find Respondent failed to establish Hornsby responsi-
bly directed he crew members. There was no showing that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
Hornsby’s directions to employees were anything other than
repetitive and routine in nature. There was also no showing
Hornsby was vested with the authority to take corrective action
if his directives were not followed, or that Hornsby was aware
of or subject to any adverse consequences based on the lack of
performance by his crew members. Respondent has not shown
any discipline or reward to Hornsby or any of its foremen for
the performance or lack thereof of their crew members. In fact,
there was no suggestion that Hornsby had the authority to dis-
cipline, effectively recommend such, or evaluate their perform-
ance. Hornsby was only evaluated once in 4 years, none of the
criteria in the evaluation were tied to the performance of his
crew, and there was no showing that the evaluation impacted on
Hornsby’s rate of pay. See Golden Crest Healthcare Center,
supra at 732–733.
2. Hornsby was demoted in violation of Section 8(a)(1)
and (3)
Hornsby was hired by Whitaker as a foreman in 2001. On
the morning of August 29, Hornsby presented Whitaker, in the
presence of Respondent officials Houchins and McMahan, a
letter from the Union designating Hornsby as a voluntary or-
ganizer. Upon reading the letter, Whitaker told Hornsby that
Hornsby could not do that because Hornsby was a supervisor.
Hornsby replied that he was not a supervisor, that he was a
foreman and did not have the duties of a supervisor. Whitaker
repeated that Hornsby could not do that, and that Hornsby
needed to turn in his company truck and company gas card.
While Hornsby was standing a safe distance away, Whitaker
said that Hornsby needed to get out of his face before he went
off on Hornsby’s ass. Hornsby responded that he was not in
Whitaker’s face. Thereafter, Hornsby was demoted from his
foreman’s position losing the use of the company truck, gas
card, and he was no longer compensated for a portion of his
hotel costs when he traveled for Respondent. Hornsby also
ceased to give assignments to his crew members. The record
revealed Hornsby’s union activities, knowledge of those union
activities, animus towards those union activities by Whitaker’s
threat to go off on Hornsby’s ass, and that Hornsby was de-
moted because of his union activities as Whitaker admitted that
he rated Hornsby as excellent in his foreman’s position but
testified that he was demoted because as a supervisor he could
not be organizing a union on Whitaker’s project.15 Since I have
found that Hornsby was an employee and not a supervisor
within the meaning of Section 2(11), Hornsby’s demotion for
engaging in union activity was violative of Section 8(a)(1) and
(3).
3. Respondent’s officials made coercive statements to employ-
ees in violation of Section 8(a)(1)
Respondent admitted that Whitaker was its statutory supervi-
sor and agent, and that Houchins, McMahan, and Scott were
statutory supervisors, but denied they were agents within the
meaning of Section 2(13). The Board has held that under Sec-
tion 2(13) of the Act and employer is bound by the acts and

15 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
statements of its supervisors whether specifically authorized or
not. See Sysco Food Services of Cleveland, 347 NLRB 1024,
1034 fn. 23 (2006); Ideal Elevator Corp., 295 NLRB 347 fn. 2
(1989); and Dorothy Shamrock Coal Co., 279 NLRB 1298,
1299 (1986), enfd. 833 F.2d 1263 (7th Cir. 1987).16 Respon-
dent admitted in its answer to the complaint that Scott had the
title of construction manager; Houchins the title of onsite su-
pervisor; and McMahan the title project manager. Scott and
McMahan were listed as project managers and Houchins as a
supervisor in Respondent’s January 2006, employee phone list.
In addition McMahan is Whitaker’s son-in-law. Hornsby’s
testimony revealed that Houchins gave his crew assignments on
a daily basis. Treadway testified it was his view that Houchins
is a supervisor and that he had the ability to discipline someone.
Hornsby testified that McMahan was in charge of a neighboring
project to the one Hornsby’s crew was working on, that
McMahan had directly supervised Hornsby in the past, and that
if McMahan gave an order the employees on Hornsby’s crew
had to comply. Hornsby testified that Scott, along with
Houchins, gave employees on his crew assignments towards the
end of 2006. Whitaker testified that Scott, Houchins, and
McMahan had the authority, upon Whitaker’s approval, to con-
vey disciplinary decisions including discharge to employees. In
addition to their supervisory status, in the circumstances here,
Respondent clothed Scott, McMahan, and Houchins with ap-
parent authority to make statements on its behalf to its employ-
ees. See Zimmerman Plumbing Co., 325 NLRB 106 (1997),
enfd. in pertinent part mem. 188 F.3d 508 (6th Cir. 1999).
Moreover, the statements by Respondent’s supervisors at issue
herein are similar in nature to the acts and statements of
Whitaker, Respondent’s president and CEO, concerning
Whitaker’s statements to and demotion of Hornsby. Accord-
ingly, I find that Houchins, McMahan, and Scott, admitted
supervisors, are also agents of Respondent within the meaning
of Section 2(13) of the Act.
Section 8(a)(1) of the Act provides: “It shall be an unfair la-
bor practice for an employer (1) to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in Sec-
tion 7.” The test of a violation of Section 8(a)(1) is whether an
employer engaged in statements or conduct, which it may be
reasonably said, tends to interfere with the free exercise of em-
ployee rights under the Act. Rosdev Hospitality, Secaucus, LP,
349 NLRB 202, 211 (2007); and American Freightways Co.,
124 NLRB 146, 147 (1959). The test of whether a statement
would reasonably tend to coerce is an objective one. It requires
an assessment of whether, under all the circumstances, the
statement reasonably tends to restrain, coerce, or interfere with
employees’ rights guaranteed under the Act. El Paso Electric
Co., 350 NLRB 151 (2007); and Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992). Statements that an employee’s
union activities were the cause of an adverse action taken
against them are coercive and clearly violative of Section
8(a)(1). Heck’s Inc., 273 NLRB 202, 204 (1984).
In the instant case, on August 29, Hornsby, a carpenter fore-

16 Respondent did not address this issue in its posthearing brief, and
has provided no case support for its contention that it is not bound by
the statements of its supervisors.
DIVERSIFIED ENTERPRISES 1183
man, prior to the start of his shift handed Whitaker a letter stat-
ing that Hornsby was a voluntary organizer. Hornsby presented
the letter to Whitaker in the presence of Respondent supervisors
Houchins and McMahan. Whitaker responded to the letter that
Hornsby could not do that because Hornsby was a supervisor,
an assertion which Hornsby denied. Whitaker stated that
Hornsby needed to turn in his company truck and gas card re-
sulting in Hornsby’s demotion from his foreman’s position.
Hornsby’s credited testimony reveals that Whitaker added that
Hornsby “needed to get out of his face before he went off on
my ass.” Since I have credited Hornsby that he was not in
Whitaker’s face, but rather Hornsby stood back in a non-
threatening posture, I have concluded Whitaker’s remarks con-
stituted a threat of physical harm to Hornsby solely resulting
from Hornsby’s union activity and that Whitaker’s statement
coming in the context of Hornsby’s demotion was coercive and
violative of Section 8(a)(1).17
After Hornsby’s meeting with Whitaker on August 29,
Hornsby went to the PSD site. Hornsby arrived there at 7 a.m.,
and Houchins came up behind Hornsby as the crew was loading
tools. Hornsby testified that Houchins stated that, “You didn’t
know what you was getting yourself into. Look what it’s got
you now, got you demoted.” Treadway corroborated Hornsby’s
account. I find Houchins attributing Hornsby’s demotion, in the
presence of a group of employees, to Hornsby’s union activities
was coercive and violative of Section 8(a)(1). Heck’s Inc.,
supra at 204.
Hornsby’s credited testimony reveals that around noon on
August 29 McMahan drove up to where Hornsby and Treadway
were working. Hornsby asked McMahan if Whitaker was in a
bad mood when Hornsby gave him the letter. McMahan said,
“No, he seemed like he was in a good mood.” McMahan said
Whitaker told Houchins to lay them off or get rid of them, and
he did not care how Houchins did it. Similarly, Treadway testi-
fied that McMahan said, “Well, Jack made it clear to Warren
Houchins that he wants rid of you all.” I find McMahan’s re-
marks, based on Hornsby’s credited testimony, constitute a
threat of layoff or termination in response to employees’ union
activity in violation of Section 8(a)(1).
Hornsby testified Houchins came out to the jobsite again on
the evening of August 29. At that time, Treadway handed
Houchins a letter from the Union stating Treadway was a vol-
untary union organizer. Hornsby did not hear all of the conver-
sation between Houchins and Treadway. However, Hornsby
heard Houchins say, “You guys are opening up a can of
worms.” Similarly, Treadway testified that he gave the Union’s
letter announcing Treadway was a voluntary organizer to
Houchins on August 29 at 4:30 p.m. Treadway testified
Houchins said in response that, “he’d just hoped we knowed
what can of worms we were opening up.” I find Houchins re-

17 Counsel for the General Counsel argues in his brief, as set forth in
the complaint, that Whitaker’s statement constituted a threat of unspeci-
fied reprisals. To the contrary, I find that Whitaker’s threat was spe-
cific, and did not leave much to the imagination. Rather, it is a clear
threat of physical harm. Indeed, Whitaker tried to justify the remark by
claiming Hornsby was in his face and angry. As set forth above, I have
not credited Whitaker’s assertions as to Hornsby’s conduct.
mark, coming on the same day as Hornsby’s demotion and the
other statements by Respondent’s officials, to be coercive. I
find it constituted a threat of unspecified reprisals to employees
for their engaging in union activities in violation of Section
8(a)(1) of the Act.
Hornsby testified that on Tuesday, September 5, Hornsby
had a phone conversation in the evening with Construction
Manager Scott. During the call, Scott told Hornsby that
Whitaker was pissed off and that Whitaker was going to put
them on a $15-an-hour job and take them off the prevailing
wage job they were on. Hornsby asked if Whitaker could do
that, and Scott replied, “He’s the president of the company, he
can pretty much do what he wants.” Hornsby testified the pre-
vailing wage job was paying between $30 and $38 an hour.
Hornsby testified Scott said, “He said he was going to do us
like that to make us quit.” Hornsby testified Scott said some-
thing like, “It got you demoted.” Scott’s reference to Hornsby’s
demotion is a clear reference to Hornsby’s union activities.
Accordingly, I find Scott threatened the transfer of employees
to lower paying jobs in order to make them quit because they
engaged in union activities and that Scott’s remarks were viola-
tive of Section 8(a)(1).
Ice testified that prior to Labor Day, which was September 4,
the employees on his crew were working four 10-hour shifts a
week. Ice handed Houchins a letter on September 5, stating
that Ice was a voluntary organizer for the Union. Ice testified
he thought his scheduled changed during Labor Day week to
five 8-hour days. Ice testified that on September 6 he had a
conversation with Houchins in the afternoon, in employee
Herndon’s presence. Ice was finishing concrete and Houchins
came by. Ice credibly testified he asked Houchins about the
change in their schedule. Houchins said they brought it on
themselves because of the coming out letters that they handed
him and it was Whitaker’s way of showing them who was the
boss. I find Houchins informing employees that their shift
change was due to their union activities was coercive and viola-
tive of Section 8(a)(1).
CONCLUSIONS OF LAW
1. Jack Scott, Warren Houchins, and Brian McMahan are su-
pervisors and agents of Diversified Enterprises, Inc. (Respon-
dent) within the meaning of Section 2(11) and (13) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act by:
(a) Threatening employees with physical harm because they
engaged in union activities.
(b) Informing employees that employees have been demoted
because they have engaged in union activities.
(c) Threatening employees with layoff or termination be-
cause they have engaged in union activities.
(d) Threatening employees with unspecified reprisals by tell-
ing them they have opened up a can of worms by their engag-
ing in union activities.
(e) Threatening employees with transfer to lower paying jobs
in order to make them quit because they engaged in union ac-
tivities.
(f) Informing employees that they are working less favorable
shift hours because they have engaged in union activities.
3. Respondent has violated 8(a)(1) and (3) of the Act by de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
moting Robert Hornsby, taking away his use of a company
truck, company gas card, and ceasing to contribute for his lodg-
ing expenses for company travel because he engaged in union
activities.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found Respondent has engaged in certain unfair la-
bor practices, I find Respondent must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondents having unlawfully
demoted and taken away certain benefits including his com-
pany truck, gas card, and lodging expense reimbursements from
Robert Hornsby must make him whole for any losses, com-
puted on a quarterly basis from the date of his demotion until
he quit, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).18
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, Diversified Enterprises, Inc., located at
Mount Hope, West Virginia, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Demoting employees, taking away their company vehi-
cles, gas cards, and their lodging expense reimbursements be-
cause they engage in activities on behalf or in support of the
Mid-Atlantic Regional Counsel of Carpenters, West Virginia
District, United Brotherhood of Carpenters and Joiners of
America, or any other union.
(b) Threatening employees with physical harm because they
engage in union activities.
(c) Informing employees that employees have been demoted
because they have engaged in union activities.
(d) Threatening employees with layoff or termination be-
cause they have engaged in union activities.
(e) Threatening employees with unspecified reprisals by tell-
ing them they have opened up a can of worms by their engag-
ing in union activities.
(f) Threatening employees with transfer to lower paying jobs
in order to make them quit because they engaged in union ac-
tivities.
(g) Informing employees that they are working less favor-

18 Counsel for the General Counsel urges for the first time in its brief
that the remedy include payment of compound rather than simple inter-
est. Thus, Respondent has not had an opportunity to address the re-
quest. Moreover, since this is a request for a change in current Board
policy I am leaving this request as an issue to be considered by the
Board.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
able shift hours because they have engaged in union activities.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Robert Hornsby whole for any loss of earnings and
other benefits suffered as a result of his demotion, including
taking away his company truck, gas card, and lodging expense
reimbursements because of the discrimination against him in
the manner set forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful demotion of Robert
Hornsby and loss of benefits including taking away his com-
pany truck, gas card, and lodging expense reimbursements, and
within 3 days thereafter notify Hornsby in writing that this has
been done and that the demotion and loss of benefits will not be
used against him in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place to be designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
and benefits due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Mount Hope, West Virginia, at all of its jobsites copies
of the attached notice marked “Appendix.”20 Copies of the
notice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. A copy of the notice shall be
duplicated and mailed at Respondent’s expense to all employ-
ees who worked at any of Respondent’s Cool Ridge Flat Top
locations and who have left Respondent’s employ since August
29, 2006.21 In the event that, during the pendency of these

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
21 The General Counsel requests in its brief that Respondent mail the
notice to any employees who have left Respondent’s employ since its
commission of unfair labor practices. Whitaker’s testimony revealed
that Respondent’s staff varied in size from 600 to 1000 employees.
Hornsby only had about five employees on his crew, and there was
testimony that Hornsby’s crew on occasion worked beside the other
Cool Ridge Flat Top crew and attended weekly safety meetings with
that crew and its supervisor. As a result, I have concluded that all em-
ployees on those crews became aware of Respondent’s unfair labor
practices. Given the conduct found violative of the Act herein, and the
size of Respondent’s work force, I do not find it appropriate to require
Respondent to mail the notice to all of the employees who have left its
employ since August 29, 2006, save for the employees in the crews at
DIVERSIFIED ENTERPRISES 1185
proceedings, the Respondent has gone out of business or closed
its operations at Mount Hope, West Virginia, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-

issue as described above. Otherwise, I find that a posting of the notice
at Respondent’s offices and all of its jobsites will be sufficient to rem-
edy the unfair labor practices found herein.
tice to all employees employed by the Respondent at any time
since August 29, 2006.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.