North State Supply Co.

National Labor Relations Board - Board Decisions

Feb 22, 1980

247 N.L.R.B. 1331 (N.L.R.B. 1980)

NORTH STATE SUPPLY CO.
North State Supply Co., Inc. and Robert A. Hiltyand
Joanathan E. Jack. Cases 6-CA-11434 and 6-CA-
11846
February 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND ME MBERS JENKINS
AND TRUESDALE
On November 2, 1979, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.'
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 Administrative Law Judge, as modified
below, and hereby orders that the Respondent, North
State Supply Co., Inc., Homer City, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Robert Hilty immediate and full rein-
statement to his former job or, if such job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and any other rights or
privileges previously enjoyed, and make him whole for
any losses he suffered by reason of the discrimination
against him as set forth in the section of this Decision
entitled 'The Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent has excepted to cellain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Sandard Dry Wall Productsr. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Respondent has requested oral argument This request is hereby
denied as the record. the exceptions. and the briefs adequately present the
issues and the positions of the parties.
247 NLRB No. 181
In addition. the Administrative Law Judge's recommended Order directing
the reinstatement of employee Hilty is hereby amended to conform to the
remedial language normally used in Board Orders.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act and
has ordered us to post this notice and carry out its
provisions.
WE WILL. NOT discourage membership in any
labor organization by discriminatorily terminat-
ing employees, or in any other manner discrimi-
nate against them with regard to their hire or
tenure of employment or any term or condition of
employment.
WE WIL NOT question employees concerning
the union activities or sympathies of their fellow
employees.
WE WIll. NOT threaten employees by indicat-
ing that employees have been terminated or
otherwise discriminated against because of their
union activity.
WE WIl. NOT threaten employees with law-
suits or countersuits because they file or prose-
cute unfair labor practice charges.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to organize, to form,
join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities.
WE WILL offer Robert Hilty immediate and
full reinstatement to his former job or, if such job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights or privileges previously enjoyed, and
make him whole for losses he suffered by reason
of the discrimination against him, with interest.
All our employees are free to become, remain, or
refuse to become or remain members of any labor
organization.
NORTH STATE SUPPLY CO., INC.
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These conso-
lidated cases were heard in Indiana, Pennsylvania, on April
25 and 26, 1979. The charges were filed on July 14, 1978, by
Robert A. Hilty, an individual, and on December 4, 1978, by
Jonathan E. Jack, an individual. The consolidated com-
plaints, which issued on August 30, 1978, and January 25,
1979, respectively, allege that North State Supply Co., Inc.
(herein the Company or Respondent), violated Section
8(a)(l) and (3) of the National Labor Relations Act, as
amended. The gravamen of the complaint is that the
Company allegedly terminated Hilty and Jack because of
their union and concerted activities, and in order to
discourage membership in any labor organization, and
further violated Section 8(a)(1) by telling employees that
Hilty was terminated because of his union activities, by
interrogating employees concerning the union activities and
sympathies of their fellow employees, and by threatening
employees with countersuit if they pursued their charges
with the Board. The Company's answers deny the commis-
sion of the alleged unfair labor practices. All parties were
afforded full opportunity to participate, to present relevant
evidence, to examine and cross-examine witnesses, to argue
orally, and to file briefs.
Upon the entire record in this case' and from my
observation of the demeanor of the witnesses, and having
considered the briefs submitted by the General Counsel and
by Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a New York corporation with its principal
office located in Buffalo, New York, is engaged in the
wholesale and retail sale of construction supplies. The
Company maintains a facility at Homer City, Pennsylvania,
formerly located at Indiana, Pennsylvania, which is the
facility involved in this case. During the year immediately
preceding issuance of the complaint in Case 6-CA-11434,
the Company had a gross volume of business in excess of
$500,000 and received directly from outside the Common-
wealth of Pennsylvania for use at its Homer City, Pennsylva-
nia, facility, goods and materials valued in excess of $50,000.
The Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Termination of Robert Hilty
In June and July 19782 the Company was in the process of
relocating its Indiana facility to a larger location at Homer
City, about 5 miles away. Robert Hilty was hired on May 31,
began working at Indiana on June 1, was transferred to work
at Homer City on July 5, and was discharged on Thursday,
July 13. The Company contends that Hilty was hired only as
a temporary employee to assist in the move, and that he was
terminated when the move was substantially completed and
Hilty's services were no longer needed. The Company
further contends, in sum, that Hilty's work was substandard,
that his termination was advanced by one day because of an
incident involving his alleged use of obscene language, that
the Company had no knowledge of any union or concerted
activity at the time that Hilty was terminated, and that in
any event Hilty did not engage in such activity. As will be
discussed, the present case is somewhat unusual in that the
General Counsel does not contend that any specific labor
organization was involved. Rather, the General Counsel
contends in essence that Hilty was engaged in activity which
might be characterized as being preliminary to a convention-
al organizational campaign, and that the Company terminat-
ed Hilty in order to head off such a campaign and
subsequently terminated Jonathan Jack when it suspected
that Jack was carrying on where Hilty had left off. The
Company contends that Jack voluntarily quit his job.
The question of whether Hilty was a temporary, or as the
General Counsel contends a permanent employee is, as
indicated, inextricably interwoven with the merits of the
case. Hilty filed a written application for employment with
the Company in early April. Hilty's brother-in-law, Michael
Snyder, who worked at the Indiana facility, informed Hilty
that there were no positions open at the time, but that the
Company would be hiring because they were getting busy. In
late May the Company notified Hilty, through Snyder, to
come in for an interview. Company owner Kelly Gwin,
accompanied by Facility Manager Daniel Birnley, inter-
viewed Hilty on May 31 and hired him the same day. Hilty
testified that Gwin and Birnley talked about working hours,
indicating that there would be overtime work, described
employee benefits, and assured him that the Company
wasn't a bad place to work. At no time, either in his
application or in talking to Mike Snyder or the company
officials, did Hilty indicate that he was seeking only a
temporary job. Hilty testified in sum that neither Gwin nor
Birnley told him that he was being hired as temporary help
for the move, and that with one possible exception (which
will be discussed), no other person ever said anything which
might indicate that his employment was temporary.
Gwin and Birnley were presented as company witnesses.
Company counsel questioned Gwin about Hilty's job inter-
view. The questioning was so permeated with leading
questions as to make it difficult to tell whether the testimony
being adduced was that of the witness or company counsel.
When asked by the Administrative Law Judge to describe, in
his own words, what was said at the interview, Gwin failed
to indicate that anything was said about duration of
employment. Rather, Gwin testified that he described the
work to Hilty, showed him around the facility, told him the
amount of his wages, and "[t]hat was about the size of it." In
: All dates herein are in 197X, unless otherwise indicated.
1332
ICertain errors in the transcript are hereby corrected.
NORTH STATE SUPPLY CO.
light of the testimony of Hilty and Gwin, I find that Hilty
was never told that his job was temporary, and I do not
credit the testimony of Birnley that Gwin told Hilty that he
would be hired only for the duration of the move. As will be
discussed, I have not found Birnley to be a credible witness
in other respects.
I further find, in light of the circumstances of Hilty's
employment, that Hilty was hired as a permanent employee,
and that he was never given reason to believe otherwise.
From the beginning of his employment, Hilty worked at
various facets of the Company's normal operations. Hilty
waited on customers, stocked shelves, and filled orders. In
particular, Hilty testified that warehouse Foreman Millard
Siebert and employees Randy Rugh and Theo Linde trained
him to make fittings for hydraulic hoses, and that in June
and early July he spent about 30 percent of his time
performing such work for customers. Although Siebert,
Rugh, and Linde were presented as company witnesses, none
of them denied Hilty's testimony. Siebert testified that the
Company had "innumerable" types of hoses, each of which
required adjustment of fittings. I find it unlikely that the
Company would have taken the time and effort to train
Hilty, and to assign him to such work, if he were hired only
for the duration of a move which (as testified by Manager
Birnley) was estimated to take 3 to 4 weeks. It is also
unlikely that Hilty was trained to do this work, and
performed such work as well as other work involving
waiting on customers, in contravention of company policy.
Gwin and Birnley were normally at the Indiana facility in
June and early July. If they had wanted Hilty to spend all or
most of his time working on the move, they would have so
directed him. However, they did not.
Hilty testified that when he was interviewed, either
Birnley or Siebert told him that he would receive hospitaliza-
tion benefits after the first month of his employment. Shortly
before his termination Hilty received notification of such
coverage. The Company's records indicate that as of July 1,
Hilty was placed under coverage of the Company's hospitali-
zation and medical insurance plan. Kelly Gwin testified that
any employee who is employed for 30 consecutive days is
automatically placed under coverage by the bookkeeper in
the Company's home office in Buffalo. However, as Manag-
er Birnley admitted, temporary employees, such as summer
help, are not placed under coverage, regardless of the
duration of their employment. Thus Mark Willis, who went
to school and worked summers for the Company, was not
placed under coverage, although he worked for nearly 2
months during the summer of 1978. It is undisputed that
Jonathan Jack, the second alleged discriminatee in this case,
who previously worked summers for the Company, gradu-
ated from school in 1978 and in late May became a
permanent full-time employee. The Company's records
indicate that Jack was not placed under coverage prior to the
termination of his employment of July 26. It is possible, as
Manager Birnley testified, that the Company's bookkeeper
assumed that as in 1976 and 1977, Jack was a summertime
' The General Counsel subpenaed the Company's payroll records, but the
Company did not produce any record for Albert Rugh.
employee. It is less likely that the Company inadvertently
placed Hilty under hospitalization and medical coverage, as
such a mistake would cost the Company needless expense.
Moreover, the Company's records indicate that a true
temporary employee, Albert Rugh, was not placed under
coverage. Rugh, the father of employee Randy Rugh, was
not a student working at a summertime job. He worked for
the Company during the period of the move. Manager
Birnley initially testified that Albert Rugh worked about 3
or 4 weeks in June and July, but conceded that it may have
been 5 or 6 weeks. The move itself took about 1-1/2 months.
Albert Rugh's payroll records were not presented in evi-
dence. If the Company's bookkeeper knew that Albert Rugh
was a temporary employee, then the inference is warranted
that the bookkeeper also knew that Hilty was a permanent
employee. Moreover, Hilty's wage rate of $3 per hour was
that of a beginning full-time employee. Both Hilty and Jack
were paid 3 per hour, whereas Willis, the summertime
employee, received $2.65 per hour. With the exception of
Albert Rugh, whose wage rate is not indicated in this record,
the remaining warehouse employees in June and July of 1978
had been full-time employees since 1977 or earlier, and
earned more than $3 per hour (Mike Snyder and Robert
Hoffman, who began working for the Company prior to
1978, each received an increase from $3 per hour to $3.25
per hour in April 1978).
In sum, Hilty's training, job assignments, wage rate, and
fringe benefits tended to indicate that the Company regarded
him as a permanent employee. The Company may have
hired a temporary employee to help during the move but
that employee was not Robert Hilty. Rather, the circum-
stances of Albert Rugh's employment indicate that he was
the temporary employee. Although no testimony was intro-
duced as to the reason for Albert Rugh's hiring and
termination, his period of employment coincided approxi-
mately with the move.' In addition to the facility's regular
complement, owner Gwin and his wife both assisted during
the move, with Gwin working constantly at Indiana during
June and early July. The Company also had the services of
Mark Willis, who began his summertime employment
during the week ending June 22, when as indicated by
Company overtime records, the greatest amount of extra
work took place. Moreover, there was no urgency about the
move. The Company had paid rent for the Indiana facility
through July 15 and anticipated completing the move about
2 weeks before that date. In fact, the move was substantially
completed a week before that date. In the meantime,
exclusive of Hilty, the Company had in addition to its
regular warehouse complement (Foreman Siebert and em-
ployees Randy Rugh, Jim Rugh, Theo Linde, Bob Hoffman,
and Mike Snyder), one new permanent employee (Jonathan
Jack) two temporary employees (Albert Rugh and Mark
Willis) and the assistance of Kelly Gwin and his wife. In
these circumstances, it is unlikely that the Company
anticipated that it would need another employee simply to
help with the move. However, as Manager Birnley admitted,
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company anticipated that its business would increase as
a result of the move to a larger location. In fact, the
Company's business increased by a modest extend after the
move, although the increase was not as great as anticipated.
However, this failure was due to factors which could not
have been anticipated in June 1978-in particular, the
abandonment of planned power plant projects as a result of
the Three Mile Island accident.'
Hilty testified that during the first weeks of his employ-
ment, Foreman Millard Siebert told him that he would
"work through the move." Siebert did not testify as to this
conversation. In the overall context in which Siebert made
this statement, I find that Siebert meant that Hilty (like the
other warehouse personnel), would continue to perform
normal facility business, e.g., dealing with customers, during
the move. It is unlikely that Siebert meant that Hilty's
employment would end when the move was completed. If, as
the Company contended, Hilly and Siebert both knew that
Hilty would be employed only for the duration of the move,
then Siebert's statement would have been redundant. If Hilty
did not previously know that he was a temporary employee,
then it is unlikely that the Company would have informed
him of such status through a low-level supervisor who had
no authority to hire or terminate employees. It is also
unlikely that an employee, and particularly one as outspoken
as Hilly, would not confirm such information by checking
with Gwin or Birnley. Indeed, it is undisputed that when
Hilty was terminated on July 13, he pressed Birnley for the
reason for his termination. However, Gwin was determined
that normal operations should continue during the move. It
is understandable that an employee, and particularly a new
one such as Hilty, would inquire of Siebert as to whether the
employee was expected to continue normal facility work
during the move. Therefore, I find that the Company never
informed Hilty, either expressly or impliedly, that he was a
temporary employee. In sum, I find that the Company hired
Hilty as a permanent addition to its workforce. Therefore, I
do not credit the self-serving testimony by company supervi-
sors that Hilty was a temporary employee. Therefore, also,
and for additional reasons which will be discussed, I find
that completion of the move had nothing to do with the
reason or reasons for Hilty's termination.
In 1978, July 4 fell on a Tuesday. The Indiana facility
continued to function on Saturday, July , and Monday, July
3. However, Hilty and Michael Snyder took off a 4-day
weekend. When they reported back to work on July 5,
Manager Birnley asked them why they had failed to tell
anyone that they would not report to work on Saturday.
Snyder said that they had told Foreman Siebert, but Siebert
denied that the employees so informed him. Birnley angrily
told Hilty and Snyder that from now on "we're all going to
work overtime" and "anybody that don't like it can take
their bucket and hit the road." In fact, Birnley's statement
did not represent the Company's general policy. The
Company encouraged, but did not require, employees to
' The Company's sales volume in June, July, and August 1978 was lower
than for the same period in 1977. However, this was a temporary situation
which was caused by the completion of two large construction projects,
serviced by the Company. which were completed or substantially completed
during the first half of 1978.
work overtime, and employees who declined to work
overtime were not penalized or otherwise disciplined. How-
ever, at the time Hilty and Snyder had no reason to believe
that Birnley did not mean to carry out his threat. Birnley
directed the two employees to report to the new facility at
Homer City. On the way to Homer City, Hilly told Snyder
that he would check with a lawyer to see whether the
Company could force them to work overtime. The next day
at work, Hilty told employee Jonathan Jack that Hilty's wife
would call several lawyers to see whether the employees
could prevent the Company from requiring them to work
overtime. Foreman Siebert overheard Hilty and told him:
"Don't mess with Dan, he's a man of his word and means
what he says."' I further find that Kelly Gwin learned of
Hilty's efforts, and was particularly concerned about them.
When asked what kind of worker Hilty was, Gwin testified
as follows:
THE WITNESS: He was very disruptive. He liked to
work with the Willis boy. They were inseparable. We
would put him on one job and the first thing you knew
he was back with Willis, and I think they studied the
Guinness Book of Records at night and that's all they
did all day was tell jokes or they would talk about what
they could do to people, take them to the Supreme Court.
They knew all the answers. [Emphasis supplied.]
On cross-examination, Gwin was repeatedly evasive about
what Hilty said about going to court. Gwin testified that
Hilty said something about the rights of a police dog, but
that this was not the only thing that Hilty discussed
concerning law and lawyers. As indicated, I find that Gwin
was aware of and concerned about Hilty's efforts.
Hilty's wife learned and informed Hilty that from a legal
standpoint, the employees could not prevent the Company
from imposing mandatory overtime. Later in the week of
July 3, Hilly and Snyder were loading the truck of a
customer at the Homer facility. The driver of the truck
spoke of how much more he earned than did the Company's
employees, and advised them to consider a union. The driver
gave them the name and telephone number of a man who
could get them in touch with the Teamsters Union. Hilty
arranged to have his wife call, but she was unable to contact
the Teamsters Union. Instead, she contacted the Pittsburgh
Regional Office of the Board about establishing a union.
Hilty informed employees Snyder and Willis of these efforts.
The Regional Office apparently informed Hilty's wife that
30 percent of the employees could file a petition for a Board-
conducted election. However, Hilty or his wife interpreted
this information to mean that 30 percent of the employees
were needed to establish a union. On July 13, the morning of
his discharge, shortly before the beginning of the workday at
8 a.m., Hilly stood in the Homer City facility parking lot,
talking with employees Snyder, Willis, and Jack. (Together,
the four employees comprised more than 30 percent of the
employee complement). Hilty reported the information
' Michael Snyder testified that he heard Siebert tell Hilty to "go ahead and
see a lawyer or not, but it won't hold up in court." Siebert., in his testimony,
did not deny either of the statements attributed to him by Hilty and Snyder.
1334
NORTH STATE SUPPLY CO.
which he received from the Board office. He said he would
contact a union, and asked the other employees if they
would back him up. Snyder and Jack agreed. Willis, as a
temporary employee, was uncertain whether he could be a
union member. At this point Manager Birnley's secretary,
Margaret Cox, arrived for work. Cox, who was presented as
a General Counsel witness, testified that she jokingly told
the men that it looked as though they were picketing the
Company, whereupon Hilty answered: "Well, we just
might.", Cox testified that she thereupon went into the
facility, saw Manager Birnley and reported exactly what had
transpired; namely, that "I told those boys, they were all
standing around there and I said that it looked like they
were picketing North State and Bob Hilty turned to me and
he said well we just might." Birnley said nothing, and Cox
did not indicate that she spoke to Birnley in a joking
manner. Cox was still employed by the Company at the time
of this hearing, and her prompt reporting of Hilty's remark
suggests that she identified herself with management. It is
unlikely that Cox would knowingly testify falsely against the
Company. I credit Cox, and I do not credit the testimony of
Birnley that Cox laughingly reported that it looked like the
boys were picketing, and said nothing else.
Owner Gwin and Manager Birnley testified in sum that on
the morning of July 13, Birnley made a special long distance
telephone call to Gwin in Buffalo concerning Hilty, and that
on the basis of the information Birnley gave him, Gwin
instructed Birnley to discharge Hilty that same day. Birnley
intended to discharge Hilty at the end of the workday, as
Hilty usually drove to and from work with Mike Snyder.
However, in early afternoon Hilty approached Birnley and
asked permission to leave work early because he was not
feeling well. Birnley was with Foreman Siebert. Birnley told
Hilty not to bother coming back. Hilty asked for an
explanation, and Birnley offered to talk to him privately.
Birnley led Hilty into the parking lot and told Hilty that he
was going to have to let him go. At this point the respective
versions of Hilty and Birnley concerning the termination
interview differ sharply. According to Hilty, Birnley told
him that he shouldn't say things that he didn't want people
to overhear, like talking to lawyers and trying to start a
union. Birnley added that Hilty was "a good worker and
above average intelligence but you cause dissension." Birnley
complained that Hilty was a bad influence on Mike Snyder,
because since Hilty began Snyder had missed several days
from work. Hilty answered that it was not his fault that
Snyder's car broke down.' Birnley observed that Kelly Gwin
paid the employees "whatever it is he pays them," and
"that's between Kelly and the employees." Birnley added
that Gwin did the employees favors like loaning them money
and tolerating their tardiness, and "that's just the way things
are." Birnley concluded that "you cause dissension and I'm
going to have to let you go, you're not working out."
According to Hilty, Birnley gave no other reason for his
termination. Birnley testified that he told Hilty that he was
' In their respective testimony. Hilty and Snyder gave slightly varying
versions of this exchange. Jack was uncertain as to Cox' exact words, and
Willis said that Cox just gave them a dirty look (Willis had taken Cox'
parking space). I find the testimony of Cox to be the most reliable indication
of what was said.
hired for the move, and that "we've moved now and your
work's not high quality so that's why you needn't come
back." According to Birnley, Hilty asked if his termination
had anything to do with his and Snyder's talking about a
union, and Birnley simply answered, "[n]o, it doesn't."
Birnley testified that he was surprised when Hilty mentioned
a union, but he did not indicate that he expressed such
surprise to Hilty. At another point in his testimony Birnley
indicated that he knew at this time that Willis was involved
in the union talk, although, according to his version of the
conversation, Hilty mentioned only Snyder. Birnley also
testified that he agreed to let Hilty use the Company as a
reference. Mike Snyder testified that later that afternoon,
Birnley asked to talk to him privately. According to Snyder,
Birnley said that he hoped there were no hard feelings
between them, but that he heard that Bob was trying to start
a union and had to fire him. Birnley added that other small
businesses had tried with a union but went out of business,
and that unions were always on strike and that some of
Hilty's stories were "unbelievable." Birnley testified that he
told Snyder that Hilty's discharge had nothing to do with
the union talk, but that Hilty was a temporary employee.
I credit the testimony of Hilty and Snyder. As heretofore
found, Hilty was a permanent employee, and therefore I do
not credit the testimony of Birnley that Hilty was terminated
because he was a temporary employee. Moreover, Birnley's
testimony concerning the discharge interview and the reason
or reasons for Hilty's discharge were both internally incon-
sistent and inconsistent with the investigative affidavit which
Birnley furnished to the Board's Regional Office. Birnley
testified that on Saturday, July 8, he and Gwin concluded
that the move was substantially completed but that there
was some cleanup work, so they would keep Hilty on until
Friday, July 14. Birnley testified that Hilty was terminated
because the move was complete, and for no other reason.
Birnley subsequently testified that completion of the move
was the "basic reason" for Hilty's termination, adding that
Hilty "had been disruptive." Birnley further testified that
the alleged use of obscene language by Hilty was not the
reason for his termination, but merely a reason for terminat-
ing him one day earlier. According to Birnley, on the
morning of the day that Hilty was discharged, i.e., Thurs-
day, July 13, employee Randy Rugh told him about an
incident which had occurred several weeks earlier at the
Indiana facility, in which Hilty allegedly made obscene
remarks to the daughters of the Company's landlord.
Birnley testified, in sum, that without checking further into
the matter, he promptly made a long distance call to Kelly
Gwin and reported the spicy information, whereupon Gwin
instructed him to discharge Hilty that day. However, in his
affidavit Birnley categorically stated that during the week of
July 10 he decided to terminate Hilty on Friday, July 14,
"because Hilty was disruptive among the other employees."
This admission tends to corroborate Hilty's version of the
discharge interview. If Birnley were terminating Hilty solely
In fact. during Hilty's tenure Snyder was absent from work only on the
July 4 weekend previously mentioned.
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or primarily because he was a temporary employee, and
Hilty already knew that he was a temporary employee, then
it is difficult to see why Birnley would have to talk privately
to Hilty, and later privately to Snyder. It is also difficult to
see why Birnley would have to add that Hilty's work was not
high quality, and then almost in the same breath assure him
that the Company would give him a reference. Rather, it is
evident that Birnley wished to convey to the employees the
message that Hilty was discharged because of union activity,
in order to discourage any continuation of such activity, but
in such a manner as to enable him to deny any such
incriminating statements in the event that the discharge
resulted in an unfair labor practice proceeding. Birnley also
stated in his affidavit that he "explained to [Hilty] that we
were not satisfied with his work, that he had been hired
temporarily and that he had been disruptive on the job and
turned down overtime." However in his testimony Birnley
never claimed to have said anything to Hilty about turning
down overtime. In fact, as indicated, the Company had no
policy of requiring employees to work overtime. Thus the
Company permitted its personnel, including Foreman Sie-
bert, who went to school at night, to regularly or frequently
leave work at the end of the 8-hour day, even if work
remained to be done. Birnley further stated in his affidavit
that on "Wednesday, July 13" (Wednesday being July 12),
Randy Rugh and Mark Willis told him of the alleged
incident involving obscene language. In fact, Birnley did not
speak to Willis about the matter until after Hilty was
discharged, and, as indicated by the affidavit, he learned
about the matter from Rugh at least a day before Hilty was
discharged. Thus Rugh, who was presented as a company
witness (and whom Birnley vouched to be a truthful person)
testified that he was not sure how long before Hilty's
discharge he reported the matter to Birnley, but that he did
recall that Hilty was still working for the Company the next
day. In sum, Birnley learned of the matter before July 13 but
attached no significance to it and took no action at that time.
The only thing that Birnley learned about Hilty on the
morning of July 13 was that Hilty, in apparent seriousness,
had suggested that the employees might picket or strike the
Company. The inference is warranted, and I so find, that
Birnley promptly reported this information to Gwin, that
they concluded that Hilty's efforts had reached the point
where the employees were about to undertake a union
organizational campaign, and that Gwin thereupon instruct-
ed Birnley to discharge Hilty.
In fact, the whole matter of obscene language was a trivial
incident which no one involved took seriously until Birnley
found that it might be useful as an additional pretext for
discharging Hilty. One day in June, Hilty and Mark Willis
were having lunch on the loading dock at Indiana. Employ-
ees Randy Rugh and Robert Hoffman (who was hard of
hearing) were having lunch inside the building, within
earshot (in the case of Rugh) of Hilty and Willis, but not in a
position to see outside the building. At the time, two of the
· Marcella Pierce testified that Tim Barber told her that Mark Willis said
that he wanted to take out one of the girls. In light of the testimony of Carlton
Pierce. I find that Marcella was simply being polite. Company counsel
addressed Carlton Pierce as "Reverend," although Pierce did not identify
daughters of Carlton Pierce, who operated an adjacent
nursing home, were tending to the grounds of the home. One
of them, Marcella Pierce, was operating a power mower.
Hilty casually remarked to Willis, in language which by
contemporary standards would probably be considered
obscene, that he would like to have intercourse with the
girls. The girls did not and could not possibly have heard
Hilty's comment. Nothing more was said about the subject
at the time. However, Willis or Rugh apparently reported
the comment to other persons. Later, one Tim Barber (not a
company employee) mentioned the comment to the Pierce
sisters, and Carlton Pierce subsequently overheard his
daughters talking about it. However, none of the Pierces
took the matter seriously, and nothing more was said or
done about it until Randy Rugh decided to repeat the matter
to Birnley, telling Birnley that Hilty had shouted obscenities
at the Pierce girls. After Hilty was terminated and filed an
unfair labor practice charge, Kelly Gwin approached Carl-
ton Pierce and apologized to him for the language used
about his daughters, although Birnley had determined from
repeated questioning of Willis that the girls could not have
heard Hilty's remark.' Birnley attached so little significance
to the matter that he did not even bother to mention it when
he discharge Hilty.
I further find that Hilty's alledged failure to perform
"high quality" work was also a pretext. As heretofore
indicated, Birnley admitted both in his testimony and
affidavit that Hilty's discharge had nothing to do with poor
quality work. In fact, as Birnley admitted to Hilty at the
time of his discharge, Hilty was a good worker. Mike Snyder
testified that Kelly Gwin once complimented Hilty on his
work, saying that Hilty dug in and didn't waste any time.
Gwin, in his testimony, did not deny making this statement.
I credit Snyder. Mark Willis, who often worked with Hilty,
and who was presented as a company witness, testified that
although they talked on the job, their talking did not
interfere with their work. If, as asserted by other company
witnesses, their talking did interfere with their work, then it
is probable that the Company would have separated them.
However they were permitted to continue working as a
team. Therefore, I do not credit such testimony, or testimo-
ny by Birnley and Siebert that they were not satisfied with
Hilty's work. What did concern the Company was that Hilty
was "disruptive" in that he was encouraging other employ-
ees to act together in order to improve their wages and
working conditions. As indicated, the Company knew that
Hilty, in consultation with other employees, was seeking
ways to prevent the Company from imposing mandatory
overtime, and learned shortly before his discharge that the
employees were considering union or other concerted action.
The testimony of Gwin and Birnley further indicates that
the Company was substantially aware all along of Hilty's
activities. Both Gwin and Birnley implisitly admitted that
they knew that Hilty was talking to Mark Willis about a
union and they were concerned that Hilty might influence
himself as a clergyman. So far as the present record is concerned. Pierce is
identified only as the owner of the premises where the Company's Indiana
facility was located, and the operator of an adjacent nursing home.
1336
NORTH STATE SUPPLY CO.
Willis in that direction. It would not have been difficult for
the Company to learn of Hilty's activities. Hilty was an
outspoken individual who made no secret of what he was
doing, and the company had almost as many potential
sources of information as it had employees. Gwin, Birnley,
and Siebert were working alongside the rank-and-file em-
ployees in June and early July; Theo Linde, although not
then a supervisor, regularly kept management informed as to
what other employees were doing; and, as indicated, both
Margaret Cox and Randy Rugh reported to management
about Hilty. In sum, the Company learned of and monitored
Hilty's activities, and Foreman Siebert warned him against
continuing those activities. When the Company had reason
to believe, and correctly so, that Hilty was about to lead a
union organizational campaign, Gwin and Birnley promptly
decided to fire Hilty. I find that Hilty was discharged for this
reason, and in order to put a stop to the budding organiza-
tional campaign. Therefore, the Company violated Section
8(a)(1) and (3) of the Act by terminating Hilty. The fact that
Hilty's actions were nipped in the bud by his precipitate
termination does not remove those actions from the category
of protected concerted activity. See Hugh H. Wilson v.
N.L.R.B., 414 F.2d 1345, 1347 (3d Cir. 1969), cert. denied
397 U.S. 935 (1970).
B. Alleged Unlawful Statements. Threats, and
Interrogation
As indicated, I have credited the testimony of Mike
Snyder that Birnley told him that Hilty was discharged
because he was trying to start a union. The Company
thereby violated Section 8(a)(1) of the Act by implicitly
threatening that other employees would meet the same fate if
they engaged in union activity. Kranco, Inc., 228 NLRB 319
(1977), enfd. 572 F.2d 318 (5th Cir. 1978); Razco, Inc.,
d/b/a Hit 'N Run Food Stores, 231 NLRB 660, 662 (1977).
Mike Snyder testified that about a week after Hilty's
discharge Kelly Gwin told Snyder, in the presence of Dan
Birnley, that he couldn't believe that Hilty was filing charges
with the Board, and that if Hilty pursued the matter he
(Gwin) would "countersue." Hilty further testified that
Gwin told him that anyone who said what Hilty had said
about the Pierce girls should be "sent up the river," but that
Gwin made this remark in a later conversation on the same
day. Gwin and Birnley, in their testimony did not deny that
these conversations took place. I credit Snyder. I find that
Gwin's threat to countersue Hilty was calculated to intimi-
date employees in the exercise of their right to file charges
under the Act, and was therefore violative of Section 8(a)(1)
of the Act. Wolverine World Wild, Inc., 242 NLRB (1979),
ALJD, sec. III, C, and cases cited therein.
The consolidated complaints allege that on July 15 (the
day after Hilty filed his charge), the Company, by Birnley,
interrogated employees concerning the union activities
and/or sympathies of their fellow employees. None of
General Counsel's witnesses testified as to such interroga-
tion. However, Manager Birnley testified on direct examina-
tion as a company witness that after Hilty filed the charge,
he (Birnley) questioned every employee in the shop as to
whether they had been approached about forming a union.
However, Snyder, Jack, and Willis, the three employees who
were involved with Hilty, each testified that Birnley admit-
ted that he had no reason to question Snyder, because he
already knew of his involvement. At the close of the hearing,
the General Counsel requested and was granted leave to
amend the complaint to allege, as unlawful interrogation, the
questioning which was admitted by Birnley. The amendemnt
was redundant, as the complaint already alleged such
unlawful interrogation.
I credit Snyder, Jack, and Willis, and I find on the basis of
Birnley's adminissions that he questioned all of the other
employees about forming a union. Birnley had no need to
question Snyder, Willis, and Jack because he already knew
that there was union activity, and that they were involved in
that activity. I do not credit Birnley's testimony that he was
surprised to hear of union activity, or the inference that
Birnley was simply investigating whether Hilty's charge had
merit. Birnley knew that there was union activity and that at
least three employees in addition to Hilty were involved in
that activity. However, Gwin and Birnley were concerned
that more employees might have been involved. Therefore,
Birnley proceeded to interrogate the remaining employees.
Birnley's questioning served no legitimate purpose, was not
accompanied by any assurances against reprisal, and oc-
curred on the heels of a discriminatory discharge and an
implied threat of further discharges for union activity.
Therefore Birnley's questioning of employees was coercive
and violative of Section 8(a)(1) of the Act.
C. The Termination of Jonathan Jack
Jonathan Jack worked for the Company during the
summers of 1976 and 1977. Upon his graduation from
school in June 1978, he became a full-time, permanent
employee. As indicated, Jack was involved with the abortive
union organizational campaign. The campaign ceased with
Hilty's discharge. Jack testified that on one occasion after
Hilty's discharge, when Jack was eating lunch at the Homer
City facility, Manager Birnley told him that his time was up
and he should get back to work, adding, "If you want to be
treated like a union, I'm going to treat you like a union."
Birnley, in his testimony, denied that he spoke to Jack about
a union, other than to question him about whether he had
been contacted about a union. At this point, I shall reserve
passing upon the credibility issue thus posed, pending
discussion of the facts leading to and surrounding Jack's
separation from employment.
During the brief period between Hilty's discharge and
Jack's termination, Jack complained to other employees that
he was getting "nigger wages," and that some of his assigned
tasks which involved hard physical labor, such as unloading
ladders, was "nigger work." Jack did not address these
remarks to any supervisor or other representative of man-
agement. However, Manager Birnley was either informed of
those remarks or overheard them. On July 26, at the close of
the working day, Birnley summoned Jack into the facility
lunchroom, where they spoke alone. According to Jack,
Birnley began by saying, "You think Bob's a hero don't
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you?" Jack answered that he did not. Birnley said, "He's not
going to win the case," and went on to ask if Jack had been
saying that the work was "nigger work." Birnley refused to
tell Jack who told him this, other than to say that "five
people" told him. According to Jack, Birnley then said that
Jack had no future there and he could go look for another
job. Jack then got up and walked out. As he was leaving,
Birnley asked if he had gotten his car fixed. According to
Jack, he answered: "No. I think I lost five houndred
dollars." Jack did not thereafter return to work. Birnley
testified that he summoned Jack because he heard about and
overhead, Jack's talk about "nigger wages" and "nigger
work." According to Birnley, he told Jack that when he was
hired he was told that he would make 3 dollars an hour, that
raises were given on merit, that there was no seniority, and
that until his work improved and warranted a raise, he
would receive none. When Jack said that it was hard to live
on his income, Birnley assertedly said, "If you feel that you
are worth so much more money, perhaps a job elsewhere
would pay better." Birnley testified that as Jack was leaving,
Birneley asked about Jack's car situation, but that he could
not recall Jack's response.
Jack's mother, Helen Jack, testified that the next day she
asked her son why he was not going to work, and he did not
answer, whereupon she called the Company. According to
Mrs. Jack, she asked Birnley whether her son had been fired,
laid off, or told to look for another job, and Birnley
answered "yes." Birnley testified that he told Mrs. Jack that
her son was not fired, that there was work available and that
he could come in. A few days later, Jack applied for
unemployment compensation. Jack stated in his application
as the reason for his separation: "He didn't fire me, just told
me to look for another job." The Company's written
response, dated August I and signed by Birnley, was: "We
did not terminate his employment, he quit because he didn't
feel he was being paid a high enough wage." On July 31,
Jack was interviewed by a hearing examiner of the Pennsyl-
vania Bureau of Employment Security (PBES). Jack signed
and approved a "summary of interview" which stated in
pertinent part as follows:
. . . My last day of work was 7-26-78. I was asked by
Dan Birney manager on 7-26-78 if I had said I was
getting "nigger" pay. I had said it but not to him. He
told me I should look for another job. I did not report
to work the following day 7-27-78 but I went looking
for another job. My mother called Mr. Birney on 7-27-
78 and asked why I hadn't reported to work. He said he
didn't fire me but told me to look for another job. I felt
the job was alright but I wasn't satisfied with the pay. I
understood from Birney statement to look for other
work that he didn't want me working there and didn't
want to see me again.
On October 11, the local office of the Bureau of Employ-
ment Security issued a written notice of determination,
disapproving Jack's claim. The local office ruled that Jack
' Conversely. if Jack did not know that Hilty filed a charge. then his version
of the conversation with Birnley could not he correct.
voluntarily quit his job because he felt his wage was too low.
Jack did not appeal that determination, which became final.
Jack did not file the instant unfair labor practice charge until
after he was contacted and and interviewed by the Board's
field attorney in connection with the pending hearing in
Hilty's case. Jack testified that prior to this time he did not
know that Hilty had filed an unfair labor practice charge
and had never heard of the Board.
I credit the testimony of Birnley. As indicated, I have
reservations with respect to the credibility of Birnley's
testimony regarding the Hilty matter. I have no comparable
reservations with regard to his testimony on the Jack case.
However, evidence in support of Jack presents serious
contradictions and inherently improbable testimony. First, I
do not credit Jack's implied assertion that he did not file an
unfair labor practice charge until some 4 months after his
separation because he had never heard of the Board and was
unaware that Hilty had filed a charge over his discharge.
According to Jacks own testimony, Birnley told him that
Hilty would not "win the case."" Prior to his termination,
Hilty told the employees that he had learned from the Board
that 30 percent of the employees could organize a union.
After Hilty was terminated, Birnley spoke to or questioned
virtually every employee at the facility, except Jack, about
Hilty's union statements or other statements or activities. It
is unlikely that Jack was unaware of what was going on, or
unaware that Hilty had filed a charge against the Company.
I find that Jack did not file a charge after his separation
because, as he candidly admitted to PBES, he was not fired
and so understood. (Jack testified that he filed a claim for
unemployment compensation on the advice of a state
senator.) Jack's version of his separation, which he gave to
PBES, is closer to Birnley's testimony in the present case
than it is to Jack's. Jack told PBES that he "understood"
from Birnley's statement to look for another job that Birnley
didn't want him working there. However, Jack did not
indicate that Birnley told him, in so many words, that he
was not wanted, or more specifically, that he was told that
he had no future with the Company. Jack's statement that
"he didn't fire me, just told me to look for another job,"
tends to indicate that Birnley suggested that he look for
another job, but did not convey to Jack that he had no
alternative. Jack also did not indicate that Birnley said or
implied anything about union activity, or that Jack believed
that his separation had anything to do with union activity.
Jack also confirmed that Birnley told his mother that he had
not been fired. Therefore, I do not credit Mrs. Jack's
testimony concerning her conversation with Birnley. Jack's
statements to PBES, made shortly after the events, are a
more reliable indicator of the truth than his later statements
to the Board, made after he learned that Hilty's case would
be coming on for hearing. I further find that no unlawful
inference is warranted from Birnley's decision to speak to
Jack about his complaints, rather than to ignore them.
Birnley told Jack, in nondiscriminatory language, that he
could not expect a pay raise in the near future. I find that
1338
NORTH STATE SUPPLY CO.
Birnley's remark about another job was a suggestion, not a
command, based on Jack's own complaints, and that Jack
voluntarily quit his job because he was not satisfied with the
pay and the kind of work he was performing. I credit Jack's
testimony that he told Birnley that he thought he lost $500.
However, in context, this remark does not likely indicate
that Jack understood that he was being fired, or that he
conveyed that impression to Birnley. Jack may have meant
that he was fired. However his remark could also have been
taken to mean that he was quitting his job, or simply that he
had failed to get a pay raise (company raises, which
normally amounted to 25 cents per hour, would normally
come out to somewhat over $500 per year). In sum, I find
that Jack voluntarily quit his job, and therefore that the
Company did not violate the Act with respect to Jack.'"'
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discriminating in regard to the tenure of employ-
ment of Robert Hilty, thereby discouraging membership in
any labor organization, the Company has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section
7 of the Act, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The allegations of the complaint that the Company
discriminatorily terminated Jonathan Jack have not been
sustained by the evidence.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(aX)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom and from like or
related conduct, and take certain affirmative action designed
to effectuate the policies of the Act."
Having found that the Company discriminatorily termi-
nated Robert Hilty, I will recommend that the Company be
ordered to offer him immediate and full reinstatement to his
former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
" However. I find without merit the Company's alternative argument that if
Jack did not voluntarily quit, the Company could or would have terminated
him because of his "poor work record which was known by North State prior
to their knowledge of Jack's union activity" (Br, 30). If the Company was not
satisfied with Jack's work. hased on his demonstrated performance over a
period of nearly 2 years, it is unlikely that he would have been made a full-
time permanent employee. Moreover. Birnley never testified that he had any
intention of terminating Jack. On the contrary, he admitted telling Jack's
mother that there was work available for him.
" The General Counsel's request for a board prohibitive order is denied. See
lickrnotl Vd4s. Inc. 242 NLRB 1357( 1979).
of earnings that he may have suffered from the time of his
discharge to the date of the Company's offer of reinstate-
ment. The backpay for said employee shall be computed in
accordance with the formula approved in F. W. Woolworth
Co.. 90 NLRB 289 (1950). with interest computed in the
manner and amount prescribed in Florida Steel Corporation.
231 NLRB 651 (1977).': It will also be recommended that
the Company be required to preserve and make available to
the Board or its agents, on request, payroll and other records
to facilitate the computation of backpay due.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recommended:
ORDER"
The Respondent. North State Supply Co., Inc., Homer
City, Pennsylvania its officers, agents, successors and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization
by discriminatorily terminating employees, or in any other
manner discriminating against them with regard to their hire
or tenure of employment or any term or condition of
employment.
(b) Interrogating employees concerning the union activi-
ties or sympathies of their fellow employees.
(c) Threatening employees by indicating that employees
have been terminated or otherwise discriminated against
because of their union activity.
(d) Threatening employees with lawsuits or countersuits
because they file or prosecute unfair labor practice charges.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to organize, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Offer Robert Hilty immediate and full reinstatement to
his former job, or if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights, and make him whole for losses he
suffered by reason of the discrimination against him as set
forth in the section of this Decision entitled "The Remedy."
(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, person-
' See. generally. Iis Plumbing A Ieoitng Co.. 13X NLRB 71l. 717-721
(1962).
'In the event no exceptions are filed as provided by Sec It)2.4t of the Rules
and Regulations of the National Labor Relations Board. the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall hex deemed
waived for all purposes.
1339
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nel records and reports, and all other records necessary to all places where notices to employees are customarily posted.
analyze the amount of backpay due.
(c) Post at its Homer City, Pennsylvania, facility copies of
the attached notice marked "Appendix."' Copies of said
notice on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, including
" In event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
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 6, in writing,
within 20 days from the date of the receipt of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 6-
CA-I 1846 be dismissed.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."