Knox Homes Corp.

National Labor Relations Board - Board Decisions

May 11, 1967

164 N.L.R.B. 530 (N.L.R.B. 1967)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knox Homes Corporation and General
Teamsters Local 528. Case 10-CA-6450.
May 11, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 26, 1966, Trial Examiner Eugene
F. Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions' to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing, and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications.
This case represents a classic example of a
discriminatory discharge of a union member, Wiley,
on pretextual grounds. Wiley had been an employee
of Respondent for 10 years and, aside from one
verbal warning about a year before his discharge for
loitering in the restroom, he had never been
criticized either for his work or conduct. He was a
known union adherent and the record in the previous
' The findings and conclusions of the Trial Examiner are
founded, in part, upon credibility determinations, based upon his
observation of and the demeanor of the witnesses while testifying
Respondent has excepted to such credibility findings In
particular it alleges the Trial Examiner rejected the testimony of
Mrs Harris , secretary to Respondent 's president , and of Adams,
its superintendent , because he stated their testimony was
obviously "colored" by reason of their positions "on the
management side " However, we do not infer as alleged in the
exceptions , that the sole reason their testimony was rejected was
because they were "on the management side " Rather we infer
that the Trial Examiner , from his personal observation of the
witnesses and their demeanor while testifying and the content of
their testimony , concluded their testimony was colored by their
(to him ) obvious bias and sympathy with management. To be
noted is that Harris was specificially charged and found
responsible for two acts of interrogation and one threat to
discharge for union membership Harris was contradicted in her
testimony by a written document typed by her with conflicting
dates, contrary to her oral testimony
After a careful review of the record , we conclude the Trial
Examiner's credibility determinations based upon his observation
of the witnesses while testifying are not contrary to the clear
preponderance of all the relevant evidence Accordingly, we find
case against the Respondent' shows that three
employees testified that Wiley had solicited them to
loin the Union and obtained signed cards from them.
On the day before Wiley's discharge, while he was
eating his lunch, he was approached by
Superintendent Adams who questioned him as to
whether he had heard anything from the Union and
"when are they going to try us again?" This
questioning appears to us to be clear recognition by
Respondent that Wiley was an employee to be
reckoned with in union matters and in a possible
second election."
In the evening of the same day of Adams'
interrogation, there occurred the espisode of the
alleged insubordinate remark concerning Personnel
Manager Pannell which culminated in Wiley's
discharge the next day. We deem it unnecessary to
discuss the Trial Examiner's findings on whether
Wiley made the remark or Pannell had reason to
believe Wiley made it as we agree with the Examiner
that Respondent seized on the remark as a pretext
for discharging Wiley.'
As set forth in the Decision, Wiley had two
interviews with Pannell. At the first interview,
Pannell brought up the subject of the Union and
castigated those employees who had joined it. As the
Trial Examiner sets forth, when Pannell could not
get a confession from Wiley he switched tactics and
criticized Wiley for his general "poor attitude"
toward his fellow employees and management. Some
of the alleged instances of poor attitude were
admitted by Pannell at the hearing to be based on
hearsay and no proof was offered as to them. Nor did
Pannell offer any explanation why, if Wiley's
attitude for a year or more had been as bad or
incorrect as he claimed, Wiley had never been either
reprimanded for it or even spoken to about it. Even
in specific instances allegedly involving Wiley vis-a-
vis Pannell, Pannell had made no mention to Wiley
about his "improper attitude."
no basis for disturbing his credibility findings and reject the
charge of bias and prejudice. Standard Dry Wall Products, Inc ,
91 NLRB 544, enfd 188 F.2d 362 (C A 2)
In adopting the Trial Examiner's credibibty findings, we reject
his gratuitous remark in connection with the testimony of Bennett
that Bennett might be expected to corroborate Wiley "as both
were Negroes ." Though we strongly disavow the remark , we find
it of no consequence herein as the Examiner then proceeded to
give substantial reasons for crediting Bennett
2 Knox Homes Corporation, 159 NLRB 442 (Cases 10-CA-5974,
6058, and 10-RC-6102)
3 Consolidated with the unfair labor practice cases in 159
NLRB 442 was Case 10-RC-6102 involving union objections to
the election held therein At the time of the events in the instant
case , a hearing on the consolidated cases had been held and the
Trial Examiner' s Decision was pending Subsequently, in 159
NLRB 442, the Board ordered the election set aside and a new
election held
' Though we agree with the Examiner that Bennett
corroborated Wiley in Wiley's denial of the remark, we note that
Bennett also testified that, at the crucial instant , Wiley made
some remark to him which he, Bennett , "did not understand" and
that he asked Wiley to repeat it. The remark as repeated by Wiley
to Bennett was not the remark concerning Pannell
164 NLRB No. 80
KNOX HOMES CORP. 531
As the Trial Examiner found, Wiley ostensibly
repudiated the Union at the beginning of his second
interview with Pannell. Upon examination of the
whole sequence of events and the facts and
circumstances herein, it appears Wiley knew or
suspected when he was called back for the second
time to Pannell's office that the Company intended
to discharge him. He had been questioned by Adams
the day before, he had been accused of
insubordination, and when he had refused to plead
guilty, Pannell had brought up his "general
attitude," accusing him of improper conduct while
refusing to tell him the names of his alleged
accusers. Also, Pannell that morning had launched
into a tirade against the Union. It is apparent that
Wiley at the outset of the afternoon session stated he
was sorry he had joined the Union in the vain hope
he could forestall what, by that time, was evident to
him.
The termination slip itself is telling evidence of
Respondent's intent to get rid of Wiley. According to
the notations on it, Wiley was "insubordinate," his
disposition was "troublesome," his character "not
reliable," his production "slow," his skill "poor,"
and he was not to be reemployed. This recital of
defects and faults cannot be reconciled with Wiley's
10 years of employment with no complaints except
the one verbal reprimand set forth above herein, and
plainly reveals the pretextual character of
Respondent's asserted reasons for discharging
Wiley.
For these and the reasons advanced by the Trial
Examiner, we find that Wiley was discharged by
Respondent in violation of Section 8(a)(1) and (3) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Knox Homes
Corporation, Thomson, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner : The issues in this
case are whether Respondent , Knox Homes Corporation,
(1) discharged one King C . Wiley for cause, or for activity
on behalf of the above -named Union in violation of Section
8(a)(3) of the National Labor Relations Act, as amended, 29
U.S.C 151, et seq. (herein called the Act), and (2 ) prior to
such discharge interrogated and threatened employees in
violation of Section 8(a)(1) of the Act. The issues arise on a
complaint issued March 25, 1966 , by the General Counsel
of the Board ,' and answer of Respondent denying the
commission of any unfair labor practices . The issues were
tried before me at a hearing, with all parties represented
by counsel, at Thomson, Georgia, on May 17, 1966. At the
close of the hearing all parties waived oral argument, but
General Counsel and Respondent filed written briefs
which I have carefully considered in making this Decision
Upon the entire record in the case, including my
observation of the demeanor of witnesses on the stand, I
make the following:
FINDINGS OF FACT
I THE EMPLOYER AND THE UNION
Respondent is a Delaware corporation with its principal
office and place of business located in Thomson, Georgia,
where it makes and sells mobile and prefabricated homes.
In the calendar year before issuance of the complaint
Respondent had a direct outflow of finished products from
said plant valued in excess of $50.000 I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The above-named Union is a labor organization within
the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background Events
In the summer of 1964 the Union began to organize
Respondent's employees. In September 1964 it filed a
representation petition with the Board in Case
10-RC-6102, in course of which it lost an election
conducted by the Board in November. On charges filed by
the Union early in 1965 the Board issued complaints in
Cases 10-CA-5974 and 10-CA-6058 against Respondent,
alleging violations of Section 8(a)(1). (3). and (5) of the Act.
After a hearing in June 1965 before a Trial Examiner on
these issues as well as objections of the Union to conduct
affecting the election, that Examiner issued his Decision in
March 1966 finding that Respondent had engaged in
certain coercive threats of reprisals, promises of benefits,
and interrogations in violation of Section 8(a)(1), and
recommending on the basis thereof that the election be set
aside and a new election ordered. The Board on June 15,
1966, issued its Decision and Order adopting the findings,
conclusions, and recommendations of the Trial Examiner
and directing a second election, 159 NLRB 442. I take
judicial notice of this Decision as pertinent background for
the events involved in this case.2
B. Alleged Coercive Conduct
On Sunday evening September 12, 1965, one Alton
Eugene Adkins visited the home of Respondent's plant
superintendent , Elbert Adams, in company with employee
James Beasley to seek work at the plant. Adkins gave his
name , and asked Adams if he needed a man, Adams
replied, "No, I don't want you," asking him if he was not
the Adkins who had worked 2 weeks at the plant and quit.
Beasley explained this was the brother of Billie Adkins
who had worked at the plant and quit Adams asked
Adkins what he thought about the Union. Adkins replied
he knew nothing about it, that he never worked under a
union. Adams said that "if you get out there and I find you
' The complaint issued after Board investigation of a charge
filed by the Union on February 1, 1966
2 West Point Manufacturing Company, 142 NLRB 1161, 1163
298-668 0-69-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are for the Union, you are fired." He said to Beasley,
"James, I know you are for the Union," and Beasley
replied "yes, I was, but if it was to go over again, I
wouldn't be for the Union." Adams then hired Adkins,
arranging for him to report on September 20. As the two
employees were leaving, Adams said to Adkins "don't
forget, if I find out you're for the Union, you're fired."
Adkins worked for Respondent until May 1966, when he
and Beasley were fired for alleged stealing of scrap copper
wire and piping from the plant, for which they were
charged with a crime in a local court under Georgia law,
and at the hearing herein were out on bond pending trial
The Union has since filed charges with the Board alleging
their discharges were illegal, which charges are still
pending.3
C. The Discharge of King C. Wiley
Wiley was hired by Respondent in 1956, and worked at
the plant until his discharge in January 1966. He had
joined in the Union in 1964, was active in the organizing
campaign, and testified as a witness for General Counsel
in the prior case in June 1965 that he signed a union
authorization card. I find that from June 1965 onward
Respondent knew he was a union adherent.
Wiley testified that: On Monday, January 24, while
eating lunch at the plant, Superintendent Adams
approached him, said "Things are mighty quiet" and
asked Wiley if he had heard anything from the Union.
Wiley said he had not. Adams asked "When are they going
to try us again?" to which Wiley said he did not know 4
Knowing that Wiley was a union adherent, and in light of
Respondent's union animus indicated by its unlawful
interrogation, threats, and other types of coercion found by
the Board in the prior case, I find that Adams'
interrogation was coercive and violated Section 8(a)(1) of
the Act.
Early Tuesday morning Foreman Julian Newsome told
Wiley that Assistant Manager R A. Pannell wanted to see
him sometime that day about a remark of Wiley. Wiley did
not seek out Pannell, but at the morning breaktime Adams
took Wiley to Pannell's office where the latter asked Wiley
if he would care to repeat what he said about Pannell.
Wiley asked what he meant, and Pannell said, "you know
what you said last night," and asked him to "look me in the
eye" and repeat it. Wiley asked Pannell what he thought
Wiley had said, saying he did not remember what he had
said. Pannell then said Wiley had called him a "damn
white s-o-b" in talking to Bennett. Wiley denied this.
Pannell said he knew he said it because "I read your lips."
Wiley still denied he said it, and asked if Pannell had any
way of proving it. Pannell said he would not ask Bennett,
because he had "lost confidence in him a while back."
Wiley asked what other proof he had, saying "I'll go just as
far on it as you will." Pannell then said, "You all got the
union stuck in your craw, what you ought to do is get
educated on the union, find out what a union will do; what
you are going to do [is] mess up this plant and the whole
damn county." He then said workers had daily come to
him asking what was wrong with Wiley, that he never
1 These findings are based on credited and mutually
corroborative testimony of Adkins and Beasley Adams admitted
the discussion, but was vague about whether he queried Adkins
about the Union, finally making formal denials of any talk about it,
hence his testimony is not impressive, and I do not credit him on
this point
I find these facts on credited testimony of Wiley, which was
spoke to anyone. Wiley asked who said this, "if he was
doing somebody wrong out there in the plant," that he
punched in daily and did his work and left everyone else
alone. Pannell did not tell him, but accused Wiley of
"dodging" or "avoiding" Pannell. He also said Wiley had
bragged in the plant about spending an afternoon in
Pannell's office in 1964 before the election. Wiley denied
this. After some other remarks, Pannell then had to take a
telephone call, so he sent Wiley back to work, saying "we
are going to try to be fair about this, we are not going to
fight about it," that he would "think about it."
Wiley worked until 4 p.m., when Adams sent him to
Pannell's office, where the latter asked if Wiley had
reconsidered and would repeat what he said the night
before. Wiley denied it, and then started to talk about the
Union. Pannell said he was not interested in that, only in
what he said last night. Wiley then said he wished he had
not become "tangled" with the Union, it cost him a lot of
friends. Pannell again said he was not interested in that,
he was in the office only because he had called Pannell a
"white s-o-b," and Pannell wanted the truth, and that
Wiley should look him in the eye when he said it. Wiley
again denied saying it. Pannell said that a condition of his
employment was a "correct attitude," and that he had
deliberately avoided speaking to Pannell, or even meeting
him in the plant, and had avoided Adams and even
President Hutchinson in the same way. Wiley denied that
there was anything wrong with his attitude, that he came
in and did his job, and if he did not want to "speak to those
bastards" that was his business, that he did not want
"anybody messing around" with him, that he did his job
which was a lot more than some of "these other s-o-bs
around." Pannell then said this was a broad statement,
cursing everybody in the plant as well as Pannell, that it
was clear his attitude would not change, that "it would be
better for you and the Company to separate," and gave
him the choice of quitting or being terminated. Wiley
made no reply, so Pannell said he was terminated as of
that moment. Wiley asked if this meant "fired," Pannell
said, yes, and Wiley thanked him and said he
"appreciated" it. Pannell then sent him to Adams to turn
in his tools. When he reported to Adams, the latter asked if
he wanted to continue to work until 5 p.m., but Wiley
declined, saying Pannell had fired him. He left the plant at
4 p.m. Pannell at once made up a handwritten
memorandum of both interviews, had it typed Wednesday
and put in Wiley's personnel file, and at the same time had
Adams make out the usual discharge slip, on which Adams
noted the reason for discharge and other data told to him
by Pannell, then signed it and had it initialed by Panne 11.5
The incident on which Respondent relies for discharge
occurred on a Monday evening, when Pannell, inspecting
the plant about 7 p.m., saw Wiley and Davis Bennett
together while they were working overtime. Pannell
testified that it occurred the evening of January 17, 1965,
when he saw Wiley and Bennett come out of the restroom
and, while standing and looking at Wiley about 15-20 feet
away, heard Wiley say "I wonder what that white s-o-b is
doing out here tonight." Pannell at once told Foreman
Julian Newsome that he wanted to see Wiley at his office
not denied by Adams
5 These findings are based on a composite of credible testimony
of Wiley and Pannell, which is mutually corroborative to some
extent, and documentary proof. Based in large part on the
demeanor of both witnesses while testifying about the two crucial
interviews on Tuesday, I do not credit denials or other testimony
of each which conflicts with these findings
KNOX HOMES CORP.
the next morning. Pannell says he did not discharge Wiley
on the spot, although he was infuriated by what Wiley had
said , because he did not want to make an issue of it in front
of other employees.
The clear coercive threat in September 1965 to a new
employee of discharge for possible union activity, with the
simultaneous remark to an employee that Respondent knew
he favored the Union, in light of Respondent's similar
threats and other coercive conduct toward employees in
the same period found by the Board in the earlier case,
shows Respondent's union animus and propensity
toward definite reprisal, including discharge, toward
employees for prounion activity. Respondent knew since
1965 of Wiley's, active union adherence, and Adams'
coercive query of Wiley the day before discharge about the
Union shows that Respondent was still aware of it and
watching for any further union activity by the workers.
Pannell's discharge of Wiley after reference to his union
activity (as testified by Wiley), in conjunction with the
above circumstances, presents a strong prima facie case
of discriminatory discharge which required Respondent to
adduce cogent evidence of discharge for cause in rebuttal.
Wiley and Bennett, both Negroes, admitted that on that
Monday night they noticed Pannell about 15-20 feet away
when they emerged from the restroom, that Wiley was
making joking remarks about women to Bennett at the
time, but both denied that Wiley used the words attributed
to him by Pannell or that he made any remark at all about
that official. They also testified without contradiction that
Pannell shortly after passed within a few feet of their
workplace while both were working on the roof of a mobile
unit about 10 feet off the floor, but said nothing to either.
It is well settled that Respondent had the right to
discharge Wiley for a disparaging and insubordinate
remark of the type in question, because union activity of a
worker does not give him any immunity from discharge for
cause. However, the crucial issue is whether the
disparaging remark was in fact made and, if made, was
actually heard by Pannell and was a motivating reason for
the discharge.
Pannell placed the date of the remark as Monday,
January 17, the discharge as the 18th, and the paperwork
connected with it as being performed on the 19th. If his
story on the dates is believed, it would throw doubt on
Wiley's version of the events of both dates. However,
Pannell's testimony on the dates is corroborated only by
that of the plant secretary, Mrs. Harris, whose testimony is
obviously colored by her position on the management side.
Pannell is not corroborated on the dates or any other facts
relating to Wiley's presence and movements on Monday
night by Newsome, who was not called to testify. While
Pannell is corroborated on the fact and date of preparation
of the discharge slip by Adams, the testimony of that
official is also colored by his management position. The
slip itself could easily have been backdated, as could the
typed memorandum of Pannell's version of the events on
Monday and Tuesday; and there is an indication that the
memorandum may have been made after January 25, from
the fact that its last page is dated February 3, which the
secretary ascribed to a typing error. On the other side,
Wiley's placement of the crucial events on January 24 and
25 is corroborated by Bennett; while the latter might be
6 Immediate discharge would also have served in proper
fashion to put Bennett and any other employees within sight or
hearing on notice that Respondent would not tolerate such
insubordinate remarks about management The Act does not
prohibit prompt disciplinary action or notice thereof to other
533
expected to support his fellow-worker, as both were
Negroes, Bennett's memory of the evening encounter is
more persuasive because he ties it to an illness of his wife
which required him to take off on the next day, January 25;
and Respondent produces no timecard or other proof to
dispute this absence or Bennett's testimony otherwise. On
balance, I find that the night encounter occurred on
January 24 and the two interviews and discharge on the
25th.
Further, Pannell's testimony of his delayed reaction to
the alleged vulgar remark does not inspire credibility. If he
was close enough to hear the remark, and it infuriated him,
as he testified, it would seem that his normal and
instinctive response to the spoken affront, in righteous
and furious indignation, would have been to charge Wiley
with it and discharge him on the spot.6 The fact that he
held off and did not act until after two interviews with
Wiley the next day, in both of which he did not directly
charge Wiley with the remark until after he could not
persuade Wiley to admit making it, is potent indication
that he was not sure in his own mind about what he heard
on the 24th. Another indication of this is his remark to
Wiley in the first interview that he got the remark by
reading Wiley's lips; and Pannell's own testimony at one
point indicated that he gathered the remark from watching
Wiley, not hearing him. As both agree that they were
15-20 feet apart at the time, and there is no proof that
Pannell was experienced, much less expert, at lipreading,
I must conclude on all the circumstances that Pannell did
not hear the alleged remark, but only suspected that Wiley
said it from watching his lips, yet he was so uncertain of
what he saw that he forbore disciplinary action until after
he tried unsuccessfully to get an admission from Wiley the
next day.
Another circumstance rendering Pannell's story and
alleged motive suspect is that, when Wiley steadfastly
refused to admit making the remark, Pannell then brought
up his general "attitude" in the plant, which consisted
mainly of not talking to others, or even passing the time of
day with company officials by normal greetings. This
"attitude" is not confirmed by testimony from any
coworkers of Wiley, his immediate supervisors or any
other company officials whom he allegedly avoided; and
since there is no proof that this unusual hermit-like
attitude had ever been brought to his attention before, or
that it had ever affected his work, I must conclude that
Pannell brought it up as an afterthought or make-weight to
build up a picture of Wiley as an uncooperative worker of
"improper attitude" who thus merited discharge; and this
conclusion is supported by the fact that Pannell made sure
to have the discharge slip list Wiley as "troublesome" in
disposition, "not reliable" in character, "slow" in
production, and "poor" in skill, although there is not an
iota of proof to support these traits, or to show that any of
them had been cited to Wiley at time of discharge (aside
from the vague "attitude") or at any time before,7 although
the record shows that Wiley was an employee of 10 years'
service and Pannell said his alleged avoidance of others
had been going on for the last 2 years. Hence, I must infer
that, although Pannell seized on the Monday encounter to
take action against Wiley on the basis of some lip
movement which he had suspected were disparaging
employees, even when they are known union adherents
r Wiley testified without contradiction that, aside from one
verbal warning by his foreman in June 1965, about loitering in the
restroom, he had never been criticized about his work or his
conduct previously during his long employment
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks, he was so unsure of this that he tried in the
discharge interviews hastily to build up a picture of
general improper "attitude" as the basis of discharge to
fortify that action by adding specific charges of poor
character and performance in the discharge slip." These
circumstances greatly detract from the potency and
persuasiveness of Pannell's testimony that the disparaging
remark was in fact made, and militate against an inference
that he even had good reason to believe that Wiley made it.
Hence, on all the pertinent circumstances, including the
fact that Pannell adverted before discharge to Wiley's
union adherence, although trying to deny its significance
at the actual discharge, I am constrained to conclude that
Respondent has not adduced cogent proof either that the
disparaging remark was in fact made, or that Pannell had
good reason to believe that it was made, which is adequate
to rebut the prima facie case of discriminatory discharge
made by General Counsel. While the issue is a close one,"
on all the pertinent testimony and circumstances, pro and
con, I conclude that General Counsel has sustained the
ultimate burden of proving by the requisite preponderance
of credible testimony in the record as a whole that
Respondent discharged Wiley on January 25, 1965,
because of his known union adherence, while concealing
that motive by the pretext of an alleged but doubtful act of
insubordination and a general vague "improper attitude,"
all in violation of Section 8(a)(3) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
King C. Wiley on January 25, 1966, I recommend that
Respondent offer him immediate and full reinstatement to
his former or a substantially equivalent position without
prejudice to seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him, by
payment to him of a sum of money equal to the amount he
would have earned from the date of his discriminatory
discharge to the date of a proper offer of reinstatement,
less net earnings during said period, to be computed in the
manner established in F.W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
"Another indication that Pannell was exaggerating Wiley's
"attitude," both in the discussion at discharge and in testimony.
into a matter far beyond its real importance, lies in Pannell's
testimony that it is an acceptable greeting if workers nod their
heads to him without speaking, but they must still "keep their eye
contact, never drop their eyes " This in my view is a reliance upon
minutiae of action and appearance which further shows the lack
of real substance in the claim of "improper attitude "
9 I have also considered carefully (1) the lack of any proof of
union or concerted activity by Wiley between his June 1965
per annum, as required by Isis Plumbing & Heating Co.,
138 NLRB 716. The illegal discharge also warrants a broad
order and notice.
CONCLUSIONS OF LAW
1. The Union is a labor organization, and Respondent is
engaged in commerce, within the meaning of the Act.
2. By unlawfully discharging King C. Wiley as found
above, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
3. By interfering with, restraining, and coercing its
employees by said discharge and other conduct found
above, in the exercise of their rights guaranteed them by
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Teamsters
Local 528, or in any other labor organization of its
employees, by discharging any of its employees or
discriminating in any other manner in respect to their hire
or tenure of employment, or any term or condition of
employment.
(b) Interrogating employees about their protected,
concerted activities on behalf of the above Union,
threatening them with discharge because of such
activities, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer King C. Wiley immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to seniority and other rights
and privileges, and make him whole for any loss of pay
suffered by reason of Respondent's discrimination against
him, in the manner set forth in the section of this Decision
entitled "The Remedy", and notify him, if he is presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
testimony in the prior case and his discharge, almost 7 months
later, and (2) the fact that Wiley had more than a year before
testified before a Federal Civil Rights Commission about alleged
discrimination against Negroes in Respondent's plant and
elsewhere in the county, but these circumstances in my view do
not detract enough from the case of General Counsel, or add
enough to the other proof adduced by Respondent, to
counterbalance the persuasiveness of the case of General
Counsel, particularly in light of past and contemporaneous
union animus and unfair labor practices of Respondent
KNOX HOMES CORP.
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its Thomson, Georgia, plant, copies of the
attached notice marked "Appendix.""' Copies of said
notice, to be furnished by the Regional Director for Region
10, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
10 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
11 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate our employees about
their protected concerted activities on behalf of
535
General Teamsters Local 528, threaten them with
discharge because of such activities , or in any other
manner interfere with , restrain , or coerce our
employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
WE WILL NOT discourage membership in the above-
named Union , or any other labor organization of our
employees, by discharging any of our employees or
discriminating in any other manner in respect to their
hire or tenure of employment or any term or condition
of employment.
WE WILL offer to King C. Wiley immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his seniority
or other rights and privileges, and make him whole for
any loss of earnings suffered as a result of our
discrimination against him.
All our employees are free to become or remain or to
refrain from becoming or remaining members of General
Teamsters Local 528 or any other labor organization.
Dated By
KNOX HOMES CORPORATION
(Employer)
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh St. N.E., Atlanta, Georgia,
Telephone 526-5741.