Diversified Enterprises, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 27, 2007

09-CA-043110 (N.L.R.B. Jul. 27, 2007)

JD–52–07
Mount Hope, WV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIVERSIFIED ENTERPRISES, INC.
and Case 9-CA-43110
MID-ATLANTIC REGIONAL COUNCIL OF CARPENTERS,
WEST VIRGINIA DISTRICT, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA
David Ness, esq.,
for the General Counsel
Brian Prim, esq.,
of Hurricane, West Virginia
for the Charging Party
Robert Dunlap, esq., of
Beckley, West Virginia
for the Respondent
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 Brotherhood 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 various statements to employees concerning their union activities on about
August 29, September 5, September 6; and that Respondent violated Section 8(a)(1) and (3) of
the Act by on August 29, demoting 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 supervisor; 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 supervisor and agent; and that Scott,
Houchins, and McMahan are supervisors within the meaning of Section 2(11) of the Act, but it
denies that the latter three are Respondent’s agents within the meaning of Section 2(13) of the
Act for the statements attributed to them in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and

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 Section 2(11) of the Act.
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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 development 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 services valued in excess of $50,000 in states other than the
state of West Virginia. Respondent admits and I find Respondent 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 September 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 and ½
to 3 years after he was hired, he was given the use of a company 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
pick-up. 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 requirement 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 demotion, Hornsby no longer gave his crew assignments on the job, that Houchins
gave the crew their assignments. Hornsby sustained a back injury on September 15, at which
point he stopped working for the company for about six 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 Virginia. 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

3 In making the findings herein, I have considered all the witnesses’ demeanor, 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 Corporation,
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951). All testimony has
been considered, if certain aspects of a witness’ testimony are not mentioned it is because it
was not credited, or cumulative of the credited evidence or testimony set forth above. Further
discussions of the witnesses’ testimony and credibility are set forth throughout this decision.
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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 assignments by himself around two to
three 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 Monday
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 upon 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 testified Houchins came to the job in the morning, during lunch time 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 two or three
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 testified 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 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
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 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, “I've been doing this type of work for four or five years and when you
work with these people you know what they can and can't do. If Rodney was a 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 operated 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.” 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, “they wouldn't be exactly finishing the concrete, but they would help.”
Hornsby testified carpenters and laborers had the skills to finish concrete. He testified, “once
we started pouring you could tell who was qualified for what.” Hornsby testified that, “Most of
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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 operators would carry forms,
material, and anything else the carpenters 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 the middle of 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 testified 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 four or five 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., 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

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. Respondent’s counsel represented he received an inaudible CD from the Union in
response to a pre-hearing 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.
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
Continued
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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 Treadway was a voluntary union organizer. 8 Hornsby
testified there were several people there and that Hornsby did not hear all of the conversation
between Houchins and Treadway. However, Hornsby saw Treadway give the letter to
Houchins, and he 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 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 going to give it to
him. He said he'd just hoped we knowed 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 personal
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."
_________________________
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.
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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 testified that he handed the Union’s letter to Houchins on
September 5, in the morning when Ice arrived at the jobsite. 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 testified he did not work on Monday, September 4. He testified he thought his
scheduled changed during Labor Day week to five eight hour shifts a week. Ice testified that on
September 6, he had a conversation with Houchins. Ice was finishing concrete and Houchins
came by. Herndon, an operator, was helping Ice. Ice testified he asked Houchins about the
change in their shift schedule. Houchins said that was the way it was going 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, Respondent had 800 employees at one
of its projects and 200 employees 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 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 superintendent 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 concrete 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 superintendent 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 if Hornsby was a foreman, he would not have received a
gas card, a company telephone, or a company truck. Whitaker testified Hornsby is one of the

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 five 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.
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.
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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 project.
Whitaker testified he took away Hornsby’s truck because Hornsby handed Whitaker a piece of
“paper saying he was going to be organizing the Union. He can't be a supervisor and a Union
organizer.” Whitaker testified he told Hornsby, “you 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 pre-hearing 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
promised 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 getting him a job, but he never
did quit in September 2006. Hornsby was not a supervisor when he told me he was
involved 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 supervisor 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 training 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

12 Whitaker’s claim that Hornsby was a superintendent is not supported 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 one of 17 supervisors. Hornsby is listed as one of eight foremen.
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 two 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.”
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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 approved and decided by the engineers."
Whitaker testified concerning the alleged Section 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 without getting
permission from me or my brother.14
Whitaker denied their statements were reflective of his or Respondent’s views. Whitaker
testified that Houchins, Scott, and 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 testified in a credible and
consistent fashion on direct and cross-examination. Moreover, Respondent did not call
admitted supervisors 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 demeanor, 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 pre-hearing 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 superintendent 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 superintendent 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.

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.
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I credit Hornsby’s version of their August 29, conversation over Whitaker’s. Hornsby
testified when he presented the Union’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 two 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 supervisor and organize for the Union at the same time. However, in
his pre-hearing 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 statutory supervisor because he
responsibly directed employees. Respondent maintained this argument in its post-hearing brief,
and additionally argued that Hornsby exercised independent judgment in the assignment of
employees. The burden of proving an individual is a statutory supervisor rests with the party
asserting it. See, NLRB v. Kentucky River Community Care, 121 S.Ct. 1861(2001). Section
2(11) of the Act defines "supervisor" as
any individual having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or effectively 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 1867 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 authority to engage in any 1 of the 12 listed
supervisory functions, (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 'In the interest of the employer.' NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 574, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994).
In September 2006, the Board issued its decisions in Oakwood Healthcare, 348 NLRB
No. 37; Croft Metals, Inc., 348 NLRB No. 38, and Goldencrest Healthcare, 348 NLRB No. 39,
which specifically address the meaning of “assign,” “responsibly to direct,” and “independent
judgment,” as those terms are used in Section 2(11) of the Act. The Board in Croft Metals, Inc.,
supra, slip op. at 5, in discussing Oakwood Healthcare, supra, stated the following:
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The authority to “assign” refers to “the act of designating 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 purposes of Section 2(11) refers to the … designation of significant overall
duties to an employee, not to the … ad hoc instruction that the employee perform a
discrete task.” Id. slip op. at 4.
*7 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. slip op. at 6. “[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 performed are not performed properly.” Id. slip
op. at 7. “Thus, to establish accountability for purposes of responsible direction, it must be
shown that the employer delegated to the putative supervisor the authority to direct the
work and the authority to take corrective action, if necessary. It also must be shown that
there is a prospect of adverse consequences for the putative supervisor if he/she does not
take these steps.” Id. slip op. at 7.
“[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 evaluation by
discerning and comparing data.” Id. at 8. “[A] judgment is not independent if it is dictated or
controlled by detailed instructions, whether set forth in company policies or rules, the
verbal instructions of a higher authority, or in the provisions of a collective-bargaining
agreement.” Id. slip op. at 8. “On the other hand, the mere existence of company policies
does not eliminate independent judgment from decision-making if the policies allow for
discretionary choices.” Id. slip op. at 8 (citations omitted). Explaining the definition of
independent judgment in relation 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 comparing
data], and the judgment must involve a degree of discretion that rises above the ‘routine or
clerical.”’ Id. slip op. at 8 (citations omitted).
In the instant case, Hornsby had the title of carpenter’s foreman 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
required 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 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 four year period ending on October 1, 2005. Hornsby’s title on the evaluation is
carpenter foreman. Item 10 on the evaluation evaluates communication skills with “other
employees.” Item 11 on the evaluation, discusses leadership concerning “the ability to motivate
co-workers to accept and complete assignments in a timely and satisfactory” manner. There is
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no item in the evaluation showing that Hornsby had authority over or was responsible for the
work of others. There is no claim that the evaluation impacted on Hornsby’s pay, or ability to
retain his job as carpenter’s foreman. Hornsby was not listed as one of Respondent’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 assignments without Houchins input. Hornsby was given a copy of the blueprints
for the job and he gave people their assignments based upon the blueprints. After he gave his
crew their assignments, Hornsby himself performed hands on work including laying the steel
and forms for the buildings. Hornsby performed carpentry work including, tying steel, pouring
and finishing 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 two or three
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
testified that then “we would split the guys up, because I'd worked with them and I knowed 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 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 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
carpenters, 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, “they wouldn't be exactly finishing the concrete, but they would help.”
Hornsby testified carpenters and laborers had the skills to finish concrete. 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 operators would carry forms, material, and anything else the
carpenters 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.
Whitaker stated the following in his pre-hearing 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
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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 engineers."
I find that Respondent failed to meet its burden of establishing that Hornsby was a
supervisor within the meaning of Section 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, Intl. Assn. of Bridge, Etc., Loc. Un. No. 28, 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 supervisor." 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 (3rd Cir. 1993).
I also find Respondent failed to establish Hornsby responsibly directed he crew
members. There was no showing that 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 discipline, effectively recommend such, or evaluate their
performance. Hornsby, himself, was only evaluated once in four 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 slip
op. at 5-6.
2. Hornsby was demoted in violation of
Section 8(a)(1) and (3) of the Act
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 organizer. 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 demoted because of his
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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) of the Act, Hornsby’s demotion for engaging in
union activity was violative of Section 8(a)(1) and (3) of the Act.
3. Respondent’s officials made coercive statements
to employees in violation of Section 8(a)(1) of the Act
Respondent admitted that Whitaker was its statutory supervisor and agent, and that
Houchins, McMahan, and Scott were statutory supervisors, but denied they were agents within
the meaning of Section 2(13) of the Act. The Board has held that under Section 2(13) of the Act
and employer is bound by the acts and statements of its supervisors whether specifically
authorized or not. See Sysco Food Services of Cleveland, 347 NLRB No. 98, JD. slip op. at 11
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 Respondent admitted
in its answer to the complaint that Scott had the title of construction manager; Houchins the title
of on-site supervisor; 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
convey disciplinary decisions including discharge to employees. In addition to their supervisory
status, in the circumstances here, Respondent clothed Scott, McMahan, and Houchins with
apparent authority to make statements on its behalf to its employees. See, Zimmerman
Plumbing Co., 325 NLRB 106 (1997), enfd. in pertinent part (unpublished decision) 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. Accordingly, 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 labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in
Section 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 employee rights under the Act. Rosdev Hospitality, Secaucus, LP, 349 NLRB No.20, JD slip
op. at 10 (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 Company,

15 See, Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
16 Respondent did not address this issue in its post-hearing brief, and has provided no case
support for its contention that it is not bound by the statements of its supervisors.
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350 NLRB No. 14 (1007); 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) of the Act. Heck’s Inc., 273
NLRB 202, 204 (1984).
In the instant case, on August 29, Hornsby, a carpenter foreman, prior to the start of his
shift handed Whitaker a letter stating 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 resulting 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 constituted 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) of the Act.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) of the
Act. 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 testified that McMahan said, "Well, Jack
made it clear to Warren Houchins that he wants rid of you all." I find McMahan’s remarks,
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) of the Act.
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
voluntary union organizer. Hornsby did not hear all of the conversation 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 remark, 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

17 Counsel for General Counsel argues in his brief, as set forth in the complaint, that
Whitaker’s statement constituted a threat of unspecified reprisals. To the contrary, I find that
Whitaker’s threat was specific, 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.
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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 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." 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 violative of Section 8(a)(1) of the Act.
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 eight 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 violative of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Jack Scott, Warren Houchins, and Brian McMahan are supervisors and agents of
Diversified Enterprises, Inc., (Respondent) within the meaning of Section 2(11) and 2(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 because they have engaged in
union activities.
(d) Threatening employees with unspecified reprisals by telling them they have opened
up a can of worms by their engaging in union activities.
(e) Threatening employees with transfer to lower paying jobs in order to make them
quit because they engaged in union activities.
(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 demoting Robert Hornsby,
taking away his use of a company truck, company gas card, and ceasing to contribute for his
lodging expenses for company travel because he engaged in union activities.
4. The unfair labor practices described above affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I find
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Respondent must be ordered to cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Respondents having unlawfully demoted and taken away
certain benefits including his company truck, gas card, and lodging expense reimbursements
from Robert Hornsby must make him whole for any losses, computed 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 Retarded, 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 vehicles, gas cards, and their lodging
expense reimbursements because 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 because they have engaged in union
activities.
(e) Threatening employees with unspecified reprisals by telling them they have opened up a
can of worms by their engaging in union activities.
(f) Threatening employees with transfer to lower paying jobs in order to make them quit
because they engaged in union activities.
(g) Informing employees that they are working less favorable 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 effectuate 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 company
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.

18 Counsel for the General Counsel urges for the first time in its brief that the remedy include
payment of compound rather than simple interest. Thus, Respondent has not had an
opportunity to address the request. 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 recommended 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.
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(c) Preserve and, within 14 days of a request, or such additional 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 facility 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 representative, 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 customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. A copy of
said notice shall be duplicated and mailed at Respondent’s expense to all employees 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 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 notice 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.
Dated, Washington, D.C. July 27, 2007
_______________________
Eric M. Fine
Administrative Law Judge

20 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT 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
employees 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 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 remedy the unfair labor practices found herein.
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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 any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten employees with physical harm 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 activities.
WE WILL NOT threaten employees with layoff or termination because they have
engaged in union activities.
WE WILL NOT threaten employees with unspecified reprisals by telling them they have
opened up a can of worms by their engaging in union activities.
WE WILL NOT threaten employees with transfer to lower paying jobs in order to make
them quit because they engaged in union activities.
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 employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
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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 reimbursements,
suffered as a result of the discrimination against him in the manner set forth in the Board’s
decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful demotion and loss of benefits including taking away his company
truck, gas card, and lodging expense reimbursements of Robert Hornsby, and within 3 days
thereafter 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.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
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. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3750.