NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Diversified
Enterprises, Inc. and Mid-Atlantic Regional
Council of Carpenters, West Virginia District, United Brotherhood of Carpenters
and Joiners of
DECISION AND ORDER
March 26, 2009
By
Chairman Liebman and Member Schaumber
On
July 27, 2007, Administrative Law Judge Eric M. Fine issued the attached
decision. The Respondent filed
exceptions and a supporting brief, and the General Counsel filed limited
cross-exceptions, a supporting brief, and a brief answering the Respondent’s
exceptions.
The
National Labor Relations Board[1]
has considered the decision and the record in light of the exceptions and
briefs[2]
and has decided to affirm the judge’s rulings, findings,[3]
and conclusions and to adopt the recommended Order as modified below.[4]
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge as modified below and orders that the Respondent, Diversified
Enterprises, Inc.,
1.
Substitute the following for paragraph 1(b).
“(b)
Threatening employees because they engage in activities on behalf of or in
support of the Mid-Atlantic Regional Counsel of Carpenters, West Virginia
District, United Brotherhood of Carpenters and Joiners of America, or any other
union.”
2.
Delete paragraphs 1(d), (e), and (f), and reletter the subsequent paragraphs.
3.
Substitute the attached notice for that of the administrative law judge.
Dated,
|
Wilma
B. Liebman, |
Chairman |
|
|
|
|
|
|
|
Peter
C. Schaumber, |
Member |
|
|
|
|
|
|
(Seal) National Labor
Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and obey this notice.
federal
law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We will not threaten employees
because they engage in activities on behalf of or in support of the
Mid-Atlantic Regional Counsel of Carpenters, West Virginia District, United
Brotherhood of Carpenters and Joiners of America, or any other union.
We will not inform employees that employees
have been demoted because they have engaged in union activities.
We will not inform employees that
they are working less favorable shift hours because they have engaged in union
activities.
We will not demote employees, or
take away their company vehicles, gas cards, or their lodging expense
reimbursements because they engage in union activities.
We will not in any like or related
manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
We will make Robert Hornsby
whole for any loss of earnings and loss of benefits, including taking away his
company truck, gas card, and lodging expense reimbursements, suffered as a
result of the discrimination against him in the manner set forth in the Board’s
decision.
We will, within 14 days from
the date of the Board’s Order, remove from our files any reference to the unlawful
demotion and loss of benefits, including taking away his company truck, gas
card, and lodging expense reimbursements, of Robert Hornsby and, within 3 days
thereafter, notify him in writing that this has been done and that the demotion
and loss of benefits will not be used against him in any way.
Diversified
Enterprises, Inc.
David
Ness, Esq.,
for the General Counsel.
Robert
Dunlap, Esq., of
Brian
Prim Esq., of
Hurricane, West
DECISION
Statement of the Case
Eric M. Fine,
Administrative Law Judge. This case was
tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and Respondent, I make the
following3
Findings of Fact
i. jurisdiction
Respondent, a
corporation, has been engaged been engaged in providing general contracting for
water and sewer development services for private and public entities from its
principal office in Mount Hope, West Virginia. During the past 12 months, in
conducting these operations, Respondent performed services valued in excess of
$50,000 in States other than the State of
ii. alleged unfair
labor practices
Robert Hornsby
started working for Respondent on September 11, 2001, as a foreman, a position
he maintained until he was demoted on August 29. Hornsby quit his employment on
December 14. Hornsby was hired by
Whitaker and he was told when he was hired that, as a foreman, Hornsby was
going to receive a gas card, and one set of tires for his personal vehicle per
year. Hornsby used the gas card to purchase gas for his personal vehicle for
his commute to and from work, as well as for on the job gas expenses. Hornsby
testified that around 2-1/2 to 3 years after he was hired, he was given the use
of a company truck because he hauled tools including a generator and a vibrator
around for the Company, and he would have to unload them from his personal
vehicle when he went home over the weekend. Hornsby brought this problem to
Respondent’s then Vice President Mike Danette’s attention, and Danette gave
Hornsby the use of one of Danette’s personal trucks to use as a company
truck. The truck was a 1991 Ford
pick-up. Hornsby testified there were foremen on other jobs who received a gas
card, and tires for their personal vehicles, but Hornsby was the only foreman
who had the use of a company truck since he had to haul heavy equipment to and
from the jobsite as a requirement of his job. Hornsby testified that while he
was a foreman when he traveled out of town Respondent compensated him for a
portion of his hotel expenses. This
benefit ended when Hornsby was demoted from the foreman position on August 29,
as did his use of the company truck to drive to and from work and the gas
card. Hornsby still had the use of the
company truck to haul things on the job, but he could no longer take it home.
Hornsby testified that after Hornsby’s August 29 demotion, Hornsby no longer
gave his crew assignments on the job, that Houchins gave the crew their
assignments. Hornsby sustained a back injury on September 15, at which point he
stopped working for the Company for about 6 weeks. Hornsby returned to work and
then quit on December 14.
During 2006,
Hornsby worked for Respondent at the Cool Ridge Flat Top PSD project (PSD site)
near
Hornsby testified
his work for Respondent was building sewage plants and water treatment plants.
Hornsby testified that he was given a copy of the blueprints for the job, which
he read, and that he gave people their assignments at the site based on what
was in those blueprints. He testified that after he gave people their
assignments that Hornsby himself performed hands on work. He testified that he
laid out all the steel and forms for the buildings. Hornsby testified he
performed carpentry work including, tying steel, pouring and finishing
concrete, pulling wire, helping electricians pull wire, setting manholes, pump
stations, and other “routine work that happens on a plant.” He testified he
spent all day working with his tools. Hornsby testified Houchins came to the
job in the morning, during lunchtime on some days and in the evenings to check
on the crew to “see how we did.” Hornsby and Houchins each had company cell
phones allowing them to communicate during the course of the day.
Hornsby testified
that a project such as working on a tank would take 2 or 3 months, and that,
“once you started it that’s what you worked on.” Hornsby testified when
Houchins arrived in the morning he brought in blueprints and reviewed with
Hornsby what Houchins wanted the crew to do. Hornsby testified Houchins gave
Hornsby’s crew its assignment. Hornsby testified, “Then I would tell the—we
would split the guys up, because I’d worked with them and I knowed what kind of
duties they were qualified as, what they could do. Then we’d just split up and
do that work.” Hornsby testified in terms of the employees assignments that,
“Houchins told me what he wanted done and then I would send the guys to do the
certain things.” Hornsby testified he made his assignments based on, “Which
ones was qualified, yes, to do that kind of work.” Hornsby testified there were
four or five people on his crew, each with different skills, and he picked the
person with the best skills to do a particular job. Hornsby testified, “I’ve
been doing this type of work for four or five years and when you work with
these people you know what they can and can’t do. If Rodney was an operator,
you needed an operator, you’d send him. You know what I mean? Doing carpenter
work or—once you work with a person you can tell what he can and can’t do.”
Hornsby testified
there were carpenters, concrete finishers, and operators on his crew. Hornsby and Mark Treadway were carpenters,
and Treadway was also a concrete finisher. Hornsby testified that, “Rodney
Herndon was our operator and Jody Satterfield would operate, too, if we needed
him.” They operated excavators,
backhoes, rollers, and dump trucks. The
carpenters were not trained to operate those pieces of equipment. Hornsby
testified operators usually operated equipment the whole day, “unless we like
were pouring concrete then everybody worked on that.” Hornsby testified they poured 300 to 400
yards of concrete at a time, it was an all day project, and the whole crew
worked on it. He testified that everyone
could help by doing such things as handing tools to someone, or dragging the
cord around for a vibrator. He testified, “[T]hey wouldn’t be exactly finishing
the concrete, but they would help.”
Hornsby testified carpenters and laborers had the skills to finish concrete.
He testified, “[O]nce we started pouring you could tell who was qualified for
what.” Hornsby testified that, “Most of these guys I worked with them at the
last plant and I knowed what they could and couldn’t do.”
Hornsby testified
that getting a site ready for a concrete pour, the operators would bring in 10
steel bars at a time, and while the carpenters were tying in the 10 bars, the operators
would be retrieving 10 more bars. In addition to the steel bars, the operators
would carry forms, material, and anything else the carpenters needed to the
pour location. Houchins would set the
time of when the pour should be made, and then the crew would work to prepare
the site for the pour, the site preparation being a 2- to 3-week project.
In mid-August,
Hornsby contacted the
Hornsby gave the
After Hornsby’s
meeting with Whitaker on August 29, Hornsby went to the PSD site. Hornsby
arrived there at 7 a.m., which was starting time, and Houchins came up behind
Hornsby as the crew was loading tools. Hornsby, Treadway, Ice, Satterfield and
Herndon were at the tool trailer. Hornsby was outside the trailer, along with
Ice and Treadway. Satterfield and Herndon were inside. Hornsby testified that
Houchins stated that, “You didn’t know what you was getting yourself into. Look
what it’s got you now, got you demoted.”
Hornsby testified Houchins stated, there was nothing wrong with the
Union, and that Houchins was in the
Hornsby testified
that around noon on August 29 McMahan drove up to where Hornsby and Treadway
were working. Hornsby testified he asked McMahan if Whitaker was in a bad mood
when Hornsby gave him the letter. McMahan said, “No, he seemed like he was in a
good mood.” McMahan said Whitaker told Houchins to lay them off or get rid of
them, and he did not care how Houchins did it.”7 Similarly, Treadway testified that McMahan
said, “Well, Jack made it
clear to Warren Houchins that he wants rid of you all.”
Hornsby testified
Houchins came out to the jobsite again on the evening of August 29, while the
crew was putting tools away at the tool trailer. At that time, Treadway handed
Houchins a letter from the
Hornsby testified
that on Tuesday, September 5, Hornsby had a phone conversation in the evening
with Construction Manager Scott. Hornsby testified that he was driving his personal
vehicle at the time, and Ice was with him. Scott called Hornsby. Scott told
Hornsby that Whitaker was pissed off and that Whitaker was going to put them on
a $15-an hour job and take them off the prevailing wage job they were on.
Hornsby asked if Whitaker could do that, and Scott replied, “He’s the president
of the company, he can pretty much do what he wants.” Hornsby testified the prevailing
wage job was paying between $30 and $38 an hour. Hornsby testified Scott said,
“He said he was going to do us like that to make us quit.” Hornsby testified
Scott said, something like, “It got you demoted.”
Ice testified
Hornsby spoke to him about the
A.
The Testimony of Andrew (Jack) Whitaker
Whitaker
testified that, at the time of the hearing, Respondent had 800 employees at one
of its projects and 200 employees at another project, and that Respondent
usually had between 600 to 800 employees. Whitaker testified Whitaker hired
Hornsby in September 10, 2001, as a foreman, and that as a foreman there was a
superintendent with Hornsby at all the times. Whitaker testified that when
Hornsby received the use of a company truck that Hornsby became an assistant
superintendent or superintendent on various jobs. Whitaker testified Hornsby
became a supervisor the day he received the company truck. Whitaker testified
he had two contracts at the Flat Top job. Whitaker testified that Hornsby’s
primary function at Flat Top was contract 1, where Hornsby was Whitaker’s
concrete superintendent. Whitaker testified that if he had a major concrete
pour, he always wanted Hornsby there. Whitaker testified Hornsby may have also
performed some work helping out at contract 2 at Flat Top.
Whitaker
testified there is no difference between a superintendent and assistant superintendent,
except the latter has someone like Whitaker or his brother coming to the
jobsite every morning. Whitaker
testified Hornsby was paid by the hour stating, most of Whitaker’s
superintendents were paid by the hour and given travel time in addition to
their hourly pay. Whitaker could not recall if Hornsby received a raise when he
was made assistant superintendent.11
Whitaker
testified that if Hornsby was a foreman he would not have received a gas card,
a company telephone, or a company truck. Whitaker also testified Hornsby is one
of the best concrete superintendents in his field.12
Whitaker
testified Hornsby had the authority to direct other laborers. Whitaker
testified Houchins would go over with Hornsby what they wanted done, and he
would make sure it got done by directing the other employees that were working
under him.
Whitaker
testified as follows:
Q. You were
pleased with his duties as a supervisor?
A. Actually,
he was - I rated him as excellent.
Judge Fine. So,
why was his truck taken away?
the witness.
Because he can’t be a supervisor and be organizing a
Whitaker
testified he took away Hornsby’s truck because Hornsby handed Whitaker a piece
of “paper saying he was going to be organizing the
I did tell Hornsby when he gave me his letter that he
could not be in the
Whitaker stated
in the affidavit that “Hornsby was the supervisor in training and he worked
with the crews.” Whitaker also stated in
his affidavit, “There are other supervisors in training at other job projects,
but Hornsby was the only supervisor in training that I gave a truck to. He had
a truck because I liked him and I was trying to improve his lifestyle.” Whitaker stated in the affidavit, “I would
not consider Hornsby a supervisor with any authority over those he worked with
because he was in training. If Hornsby
wanted someone to do a specific job, he would go to Houchins and request it and
Houchins would tell the employee what to do.” Whitaker stated in the affidavit
that, “Hornsby was like the lead guy on the crew and his experience enabled him
to tell others what needed to be done. I cannot give examples of what type of
instructions he gave. Mostly Hornsby just worked and they followed. Any type of
changes in the blueprints or the construction of the building had to be approved
and decided by the engineers.”
Whitaker
testified concerning the alleged 8(a)(1) statements attributed to Scott,
Houchins, and McMahan that:
A.
Those were their opinions and, you know, I can’t do anything about their
opinions, but they did not have the authority to make a statement for
Diversified Enterprises. They don’t have the authority to discipline anybody
without getting permission from me or my brother.[14]
Whitaker denied
their statements were reflective of his or Respondent’s views. Whitaker testified
that Houchins, Scott, and McMahan were still working for Respondent at the time
of the hearing. However, Respondent did not call them to testify.
B.
Credibility
General Counsel
witnesses Hornsby, Ice, and Treadway testified in a credible and consistent
fashion on direct and cross-examination.
Moreover, Respondent did not call admitted Supervisors Houchins, Scott,
or McMahan to refute the testimony of the General Counsel’s witnesses, although
those supervisors were still in Respondent’s employ. In fact, Whitaker in essence conceded the
statements attributed to the supervisors were made to the employees as alleged
when he testified those statements were merely the opinions of the supervisors,
but contended the supervisors did not have the authority to make the statements
on behalf of Respondent. Accordingly, I
have credited Hornsby, Treadway, and Ice, considering their demeanor, with
respect to those allegations made in the complaint concerning statements by
Whitaker, Houchins, McMahan, and Scott.
In this regard, I
did not find Whitaker to be a very credible witness. He claimed at the hearing
that Hornsby was given the job title of assistant superintendent or superintendent
when Hornsby received the use of a company truck and that Hornsby was a
supervisor. This testimony is contradicted
in Whitaker’s prehearing affidavit in which he repeated several times that
Hornsby was not a supervisor, but just a supervisor in training, and that the
reason he gave Hornsby the use of a truck was not because he was a supervisor,
but because Whitaker felt sorry for Hornsby and wanted to improve his life
style. Whitaker’s claim that Hornsby was
given the job title of assistant superintendent or superintendent when Hornsby
received the use of a company truck is also contradicted by documentary
evidence. By Hornsby’s uncontradicted testimony, Hornsby received the company
truck some time in 2004. Yet, Hornsby’s
evaluation issued in October 2005 lists Hornsby as a foreman, and a phone list
published in January 2006 by Respondent lists Hornsby as a foreman. Thus, I have credited Hornsby over Whitaker
and have concluded that Hornsby was never made assistant superintendent or
superintendent. Rather, Hornsby had the
title of foreman during the course of his employment with Respondent, until Hornsby
was demoted from that position on August 29.
I credit
Hornsby’s version of their August 29 conversation over Whitaker’s. Hornsby
testified when he presented the
C.
Analysis
1. Hornsby’s alleged supervisory status
Respondent argued
at the hearing that Hornsby was a statutory supervisor because he responsibly
directed employees. Respondent maintained this argument in its posthearing
brief, and additionally argued that Hornsby exercised independent judgment in
the assignment of employees. The burden of proving an individual is a statutory
supervisor rests with the party asserting it.
See NLRB v. Kentucky River Community Care, 532 U.S. 706, 711 (2001). Section 2(11) of the Act defines “supervisor”
as
[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
In NLRB v.
Kentucky River Community Care, supra at 713, the Court stated Section 2(11)
of the Act:
sets forth a three-part test for determining supervisory
status. Employees are statutory
supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their “exercise
of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment,” and (3) their authority is held “[i]n the interest of
the employer.” [NLRB v. Health
Care & Retirement Corp. of
In September
2006, the Board issued its decisions in Oakwood Healthcare Center, 348 NLRB 686; Croft Metals, Inc., 348 NLRB 717, and Golden
Crest Healthcare, 348 NLRB 727, which specifically address the
meaning of “assign,” “responsibly to direct,” and “independent judgment,” as
those terms are used in Section 2(11) of the Act. The Board in Croft Metals, Inc., supra
at 721, in discussing Oakwood Healthcare, supra, stated the following:
The authority
to “assign” refers to “the act of designating an employee to a place (such as a
location, department, or wing), appointing an employee to a time (such as a
shift or overtime period), or giving significant overall duties, i.e., tasks,
to an employee. . . . In sum, to ‘assign’ for purposes of Section 2(11) refers
to the . . . designation of significant overall duties to an employee, not to
the . . . ad hoc instruction that the employee perform a discrete task.” [
The authority
“responsibly to direct” is “not limited to department heads,” but instead
arises “[i]f a person on the shop floor has ‘men under him,’ and if that person
decides ‘what job shall be undertaken next or who shall do it,’ . . . provided
that the direction is both ‘responsible’ . . . and carried out with independent
judgment.” [
“[T]o exercise
‘independent judgment,’ an individual must at minimum act, or effectively
recommend action, free of the control of others and form an opinion or evaluation
by discerning and comparing data.” [
In the instant
case, Hornsby had the title of carpenter’s foreman during the course of his
employment with Respondent until his August 29 demotion. Hornsby was paid on an
hourly basis at a carpenter’s pay rate, regardless of whether Hornsby was
actually performing carpenter’s work. Hornsby, until his demotion, was given
the use of a company gas card and he was allowed to charge gasoline for his
commute to work on the card. Hornsby, as a foreman, was provided a portion of
his lodging costs when he traveled for Respondent. Hornsby was also given a
free set of tires for his personal vehicle until he received the use of a
company truck. Hornsby was eventually given the use of a company truck because
he was being required to haul heavy equipment to and from the jobsite, and to
his home on a nightly basis. As a foreman, Hornsby did not attend management
meetings, and he could not approve leave requests or overtime. There is no contention that Hornsby could
discipline employees or effectively recommend such action. There is
no contention that Hornsby was involved in the evaluation of employees. In
fact, the only evaluation placed into evidence was one for Hornsby covering a
4-year period ending on October 1, 2005.
Hornsby’s title on the evaluation is carpenter foreman. Item 10 on the
evaluation evaluates communication skills with “other employees.” Item 11 on the evaluation, discusses
leadership concerning “the ability to motivate coworkers to accept and complete
assignments in a timely and satisfactory” manner. There is no item in the evaluation
showing that Hornsby had authority over or was responsible for the work of
others. There is no claim that the evaluation impacted on Hornsby’s pay, or
ability to retain his job as carpenter’s foreman. Hornsby was not listed as one
of Respondent’s 17 supervisors in its January 2006 phone list. Rather, Hornsby was included in a separate
category noted as foreman.
During 2006,
Hornsby worked for Respondent at the PSD site where Respondent was a contractor
building a sewage treatment plant. Hornsby reported to Houchins who reported to
Whitaker. Houchins met with Hornsby’s
crew during the morning, at lunch, and sometimes at the end of the day to check
on how the crew performed. In Houchins
absence, Hornsby was left in charge of the crew. However, Hornsby and Houchins were provided
company cell phones to allow them to communicate during the day. Hornsby
testified there were days when Houchins gave crew members specific assignments,
and some days when Hornsby gave the crew members their assignments without
Houchins input. Hornsby was given a copy
of the blueprints for the job and he gave people their assignments based on the
blueprints. After he gave his crew their
assignments, Hornsby himself performed hands on work including laying the steel
and forms for the buildings. Hornsby performed
carpentry work including, tying steel, pouring and finishing concrete, pulling
wire, helping electricians pull wire, setting manholes, and other “routine work
that happens on a plant.” He spent all
day working with his tools.
Hornsby testified
that a project such as working on a tank would take 2 or 3 months, and that
“once you started it that’s what you worked on.” When Houchins arrived in the
morning, he brought blueprints and Houchins reviewed with Hornsby what Houchins
wanted the crew to do. Hornsby testified
Houchins gave Hornsby’s crew its assignment. Hornsby testified, “[T]hen we
would split the guys up, because I’d worked with them and I knowed [sic] what
kind of duties they were qualified as, what they could do. Then we’d just split
up and do that work.” Hornsby testified in terms of the employees assignments
that, “Houchins told me what he wanted done and then I would send the guys to
do the certain things.” Hornsby testified he made his assignments based on,
“[w]hich ones was qualified, yes, to do that kind of work.” Hornsby testified
there were four or five people on his crew, each with different skills, and he
picked the person with the best skills to do a particular job. Hornsby testified there were carpenters,
concrete finishers, and operators on his crew. Hornsby and Treadway were carpenters,
and Treadway was also a concrete finisher.
Herndon and Satterfield could operate equipment, including excavators,
backhoes, rollers, and dump trucks. The
carpenters were not trained to operate those pieces of equipment. Hornsby
testified operators usually operated equipment the whole day “unless we like
were pouring concrete then everybody worked on that.” Pouring concrete was a
whole day project and the whole crew worked on it. Everyone could help by doing
such things as handing tools to someone, or dragging the cord around for a
vibrator. He testified, “[T]hey wouldn’t
be exactly finishing the concrete, but they would help.” Hornsby testified carpenters and laborers had
the skills to finish concrete. Hornsby
testified that getting a site ready for a concrete pour the operators would
bring in 10 steel bars at a time, and while the carpenters were tying in the 10
bars the operators would be retrieving 10 more bars. In addition to the steel bars, the operators
would carry forms, material, and anything else the carpenters needed to the
pour location. Houchins would set the
time when the pour should be made, and then the crew would work to prepare the
site for the pour, the site preparation being a 2- to 3-week project.
Whitaker stated
the following in his prehearing affidavit, “I would not consider Hornsby a
supervisor with any authority over those he worked with because he was in training.
If Hornsby wanted someone to do a specific job, he would go to Houchins and
request it and Houchins would tell the employee what to do.” Whitaker stated in
the affidavit that,
Hornsby was like
the lead guy on the crew and his experience enabled him to tell others what
needed to be done. I cannot give examples of what type of instructions he gave.
Mostly Hornsby just worked and they followed. Any type of changes in the blueprints or the
construction of the building had to be approved and decided by the engineers.”
I find that
Respondent failed to meet its burden of establishing that Hornsby was a
supervisor within the meaning of Section 2(11) of the Act. While Hornsby gave his crew members individual
tasks those assignments were repetitive in nature and based on skills sets
largely defined by the crew member’s job classification, i.e., carpenters
versus operators. Houchins met with the crew and Hornsby in the morning and informed
the crew of its actual assignment. Houchins met the crew multiple times on a
daily basis and was in phone contact with Hornsby. Houchins used his judgment
for when it was necessary for him to step in and assign the crew members
individual tasks which he did during the course of the week. Thus, I find that the level of judgment
Hornsby used in assigning tasks did not rise above the level of routine. See Iron
Workers Local 28 (Virginia Assn. of Contractors), 219 NLRB
957, 961 (1975), where a group of working foremen and a general
foreman were found not to be statutory supervisors when they acted “within a
very limited sphere in giving instructions to employees, bounded by the
blueprints and instructions from the contractor or his supervisor.” Their authority was found to be routine not
requiring the use of independent judgment.
See also Electrical Workers IBEW Local 3 (Cablevision), 312 NLRB
487, 488–489 (1993) (Monopoli); George C. Foss Co., 270 NLRB 232, 234–235 (1984) (Merrow),
enfd. 752 F.2d 1407 (9th Cir. 1985); and Ogden Allied Maintenance Corp., 306 NLRB 545, 546 (1992)
(Michot), enfd 998 F.2d 1004 (3d Cir. 1993).
I also find
Respondent failed to establish Hornsby responsibly directed he crew members.
There was no showing that Hornsby’s directions to employees were anything other
than repetitive and routine in nature. There was also no showing Hornsby was
vested with the authority to take corrective action if his directives were not
followed, or that Hornsby was aware of or subject to any adverse consequences
based on the lack of performance by his crew members. Respondent has not shown any discipline or
reward to Hornsby or any of its foremen for the performance or lack thereof of
their crew members. In fact, there was no suggestion that Hornsby had the
authority to discipline, effectively recommend such, or evaluate their performance.
Hornsby was only evaluated once in 4 years, none of the criteria in the
evaluation were tied to the performance of his crew, and there was no showing
that the evaluation impacted on Hornsby’s rate of pay.
2. Hornsby was demoted in violation of Section 8(a)(1)
and (3)
Hornsby was hired
by Whitaker as a foreman in 2001. On the
morning of August 29, Hornsby presented Whitaker, in the presence of Respondent
officials Houchins and McMahan, a letter from the
3. Respondent’s officials made coercive statements to employees
in violation of Section 8(a)(1)
Respondent
admitted that Whitaker was its statutory supervisor and agent, and that
Houchins, McMahan, and Scott were statutory supervisors, but denied they were
agents within the meaning of Section 2(13). The Board has held that under Section
2(13) of the Act and employer is bound by the acts and statements of its
supervisors whether specifically authorized or not. See Sysco Food Services of Cleveland, 347 NLRB
1024, 1034 fn. 23 (2006); Ideal Elevator Corp., 295 NLRB 347
fn. 2 (1989); and Dorothy Shamrock Coal Co., 279 NLRB
1298, 1299 (1986), enfd. 833 F.2d 1263 (7th Cir. 1987).16 Respondent admitted in its answer to the
complaint that Scott had the title of construction manager; Houchins the title
of onsite supervisor; and McMahan the title project manager. Scott and McMahan
were listed as project managers and Houchins as a supervisor in Respondent’s
January 2006, employee phone list. In addition McMahan is Whitaker’s
son-in-law. Hornsby’s testimony revealed that Houchins gave his crew
assignments on a daily basis. Treadway testified it was his view that Houchins
is a supervisor and that he had the ability to discipline someone. Hornsby
testified that McMahan was in charge of a neighboring project to the one
Hornsby’s crew was working on, that McMahan had directly supervised Hornsby in
the past, and that if McMahan gave an order the employees on Hornsby’s crew had
to comply. Hornsby testified that Scott, along with Houchins, gave employees on
his crew assignments towards the end of 2006. Whitaker testified that Scott,
Houchins, and McMahan had the authority, upon Whitaker’s approval, to convey
disciplinary decisions including discharge to employees. In addition to their
supervisory status, in the circumstances here, Respondent clothed Scott,
McMahan, and Houchins with apparent authority to make statements on its behalf
to its employees. See Zimmerman Plumbing Co., 325 NLRB 106
(1997), enfd. in pertinent part mem. 188 F.3d 508 (6th Cir. 1999). Moreover, the statements by
Respondent’s supervisors at issue herein are similar in nature to the acts and
statements of Whitaker, Respondent’s president and CEO, concerning Whitaker’s
statements to and demotion of Hornsby. Accordingly, I find that Houchins,
McMahan, and Scott, admitted supervisors, are also agents of Respondent within
the meaning of Section 2(13) of the Act.
Section 8(a)(1)
of the Act provides: “It shall be an unfair labor practice for an employer (1)
to interfere with, restrain, or coerce employees in the exercise of rights
guaranteed in Section 7.” The test of a
violation of Section 8(a)(1) is whether an employer engaged in statements or
conduct, which it may be reasonably said, tends to interfere with the free
exercise of employee rights under the Act. Rosdev Hospitality, Secaucus, LP, 349 NLRB
202, 211 (2007); and American Freightways Co., 124 NLRB
146, 147 (1959). The test of whether a statement would reasonably
tend to coerce is an objective one. It requires an assessment of whether, under
all the circumstances, the statement reasonably tends to restrain, coerce, or
interfere with employees’ rights guaranteed under the Act. El Paso Electric Co., 350 NLRB 151
(2007); and Sunnyside Home Care Project, 308 NLRB 346
fn. 1 (1992). Statements that
an employee’s union activities were the cause of an adverse action taken
against them are coercive and clearly violative of Section 8(a)(1). Heck’s Inc., 273 NLRB 202, 204 (1984).
In the instant
case, on August 29, Hornsby, a carpenter foreman, prior to the start of his
shift handed Whitaker a letter stating that Hornsby was a voluntary
organizer. Hornsby presented the letter
to Whitaker in the presence of Respondent supervisors Houchins and McMahan.
Whitaker responded to the letter that Hornsby could not do that because Hornsby
was a supervisor, an assertion which Hornsby denied. Whitaker stated that
Hornsby needed to turn in his company truck and gas card resulting in Hornsby’s
demotion from his foreman’s position. Hornsby’s credited testimony reveals that
Whitaker added that Hornsby “needed to get out of his face before he went off
on my ass.” Since I have credited Hornsby that he was not in Whitaker’s face,
but rather Hornsby stood back in a non-threatening posture, I have concluded
Whitaker’s remarks constituted a threat of physical harm to Hornsby solely resulting
from Hornsby’s union activity and that Whitaker’s statement coming in the
context of Hornsby’s demotion was coercive and violative of Section 8(a)(1).17
After Hornsby’s
meeting with Whitaker on August 29, Hornsby went to the PSD site. Hornsby
arrived there at 7 a.m., and Houchins came up behind Hornsby as the crew was
loading tools. Hornsby testified that Houchins stated that, “You didn’t know
what you was getting yourself into. Look what it’s got you now, got you demoted.”
Treadway corroborated Hornsby’s account. I find Houchins attributing Hornsby’s
demotion, in the presence of a group of employees, to Hornsby’s union
activities was coercive and violative of Section 8(a)(1). Heck’s Inc., supra at 204.
Hornsby’s
credited testimony reveals that around noon on August 29 McMahan drove up to
where Hornsby and Treadway were working. Hornsby asked McMahan if Whitaker was
in a bad mood when Hornsby gave him the letter. McMahan said, “No, he seemed
like he was in a good mood.” McMahan said Whitaker told Houchins to lay them
off or get rid of them, and he did not care how Houchins did it. Similarly,
Treadway testified that McMahan said, “Well, Jack made it clear to Warren
Houchins that he wants rid of you all.” I find McMahan’s remarks, based on
Hornsby’s credited testimony, constitute a threat of layoff or termination in response
to employees’ union activity in violation of Section 8(a)(1).
Hornsby testified
Houchins came out to the jobsite again on the evening of August 29. At that time, Treadway handed Houchins a
letter from the
Hornsby testified
that on Tuesday, September 5, Hornsby had a phone conversation in the evening
with Construction Manager Scott. During the call, Scott told Hornsby that
Whitaker was pissed off and that Whitaker was going to put them on a
$15-an-hour job and take them off the prevailing wage job they were on. Hornsby asked if Whitaker could do that, and
Scott replied, “He’s the president of the company, he can pretty much do what
he wants.” Hornsby testified the prevailing wage job was paying between $30 and
$38 an hour. Hornsby testified Scott said, “He said he was going to do us like
that to make us quit.” Hornsby testified Scott said something like, “It got you
demoted.” Scott’s reference to Hornsby’s demotion is a clear reference to
Hornsby’s Union activities. Accordingly, I find Scott threatened the transfer
of employees to lower paying jobs in order to make them quit because they
engaged in union activities and that Scott’s remarks were violative of Section
8(a)(1).
Ice testified
that prior to Labor Day, which was September 4, the employees on his crew were
working four 10-hour shifts a week. Ice
handed Houchins a letter on September 5, stating that Ice was a voluntary
organizer for the
Conclusions of Law
1. Jack Scott,
Warren Houchins, and Brian McMahan are supervisors and agents of Diversified
Enterprises, Inc. (Respondent) within the meaning of Section 2(11) and (13) of
the Act.
2. Respondent has
violated Section 8(a)(1) of the Act by:
(a) Threatening
employees with physical harm because they engaged in union activities.
(b) Informing
employees that employees have been demoted because they have engaged in union
activities.
(c) Threatening
employees with layoff or termination because they have engaged in union activities.
(d) Threatening
employees with unspecified reprisals by telling them they have opened up a can
of worms by their engaging in union activities.
(e) Threatening
employees with transfer to lower paying jobs in order to make them quit because
they engaged in union activities.
(f) Informing
employees that they are working less favorable shift hours because they have
engaged in union activities.
3. Respondent has
violated 8(a)(1) and (3) of the Act by demoting Robert Hornsby, taking away his
use of a company truck, company gas card, and ceasing to contribute for his lodging
expenses for company travel because he engaged in union activities.
4. The unfair
labor practices described above affect commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Remedy
Having found
Respondent has engaged in certain unfair labor practices, I find Respondent
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Respondents having unlawfully
demoted and taken away certain benefits including his company truck, gas card,
and lodging expense reimbursements from Robert Hornsby must make him whole for
any losses, computed on a quarterly basis from the date of his demotion until
he quit, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).18
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended.19
ORDER
The Respondent,
Diversified Enterprises, Inc., located at Mount Hope, West
1. Cease and desist
from
(a) Demoting
employees, taking away their company vehicles, gas cards, and their lodging
expense reimbursements because they engage in activities on behalf or in
support of the Mid-Atlantic Regional Counsel of Carpenters, West Virginia
District, United Brotherhood of Carpenters and Joiners of America or any other
union.
(b) Threatening
employees with physical harm because they engage in union activities.
(c) Informing
employees that employees have been demoted because they have engaged in union
activities.
(d) Threatening
employees with layoff or termination because they have engaged in union activities.
(e) Threatening
employees with unspecified reprisals by telling them they have opened up a can
of worms by their engaging in union activities.
(f) Threatening
employees with transfer to lower paying jobs in order to make them quit because
they engaged in union activities.
(g) Informing employees that they are working
less favorable shift hours because they have engaged in union activities.
(h) In any like or
related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Robert Hornsby whole for any loss of earnings and other benefits suffered as a result of his demotion, including taking away his company truck, gas card, and lodging expense reimbursements because of the discrimination against him in the manner set forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful demotion of Robert Hornsby and loss of benefits including taking away his company truck, gas card, and lodging expense reimbursements, and within 3 days thereafter notify Hornsby in writing that this has been done and that the demotion and loss of benefits will not be used against him in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place to be designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of back pay and benefits due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Mount Hope, West
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
federal law gives you
the right to
Form,
join, or assist a union
Choose
representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities.
We will not threaten employees with physical harm because
they engage in activities on behalf of or in support of the Mid-Atlantic
Regional Counsel of Carpenters, West Virginia District, United Brotherhood of
Carpenters and Joiners of America or any other union.
We will not inform employees that employees have been
demoted because they have engaged in union activities.
We will not threaten employees with layoff or termination
because they have engaged in union activities.
We will not threaten employees with unspecified reprisals
by telling them they have opened up a can of worms by their engaging in union
activities.
We will not threaten employees with transfer to lower
paying jobs in order to make them quit because they engaged in union
activities.
We will not inform employees that they are working
less favorable shift hours because they have engaged in union activities.
We will not demote employees, or take away their company
vehicles, gas cards, or their lodging expense reimbursements because they
engage in union activities.
We will not in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
We will make Robert
Hornsby whole for any loss of earnings and loss of benefits including taking
away his company truck, gas card, and lodging expense reimbursements, suffered
as a result of the discrimination against him in the manner set forth in the
Board’s decision.
We will, within 14 days from the date of the
Board’s Order, remove from our files any reference to the unlawful demotion and
loss of benefits including taking away his company truck, gas card, and lodging
expense reimbursements of Robert Hornsby, and within 3 days thereafter notify
him in writing that this has been done and that the demotion and loss of
benefits will not be used against him in any way.
Diversified Enterprises, Inc.
[1] Effective
midnight December 28, 2007, Members Liebman,
[2] The General
Counsel’s answering brief asserts that the Board should not consider the Respondent’s
exceptions because they fail to comply with Sec. 102.46(b) of the Board’s Rules
and Regulations. We find that the
Respondent’s exceptions are sufficient to satisfy the “substantial compliance”
standard, and thus we have considered them.
See, e.g.,
[3] The Respondent
has excepted to some of the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are incorrect.
In
addition, the Respondent argues that the judge erroneously relied on hearsay
testimony, specifically employee Robert Hornsby’s testimony that Supervisor
Brian McMahan told Hornsby that Jack Whitaker, the Respondent’s president and
chief executive officer, had told Supervisor Warren Houchins to “lay off or get
rid of” employees. We disagree. The finding of an 8(a)(1) violation in this
regard is based on Hornsby’s nonhearsay testimony about a threat that a supervisor
made directly to him. See, e.g.,
Further,
we reject the Respondent’s argument that the judge denied it due process by
failing to enforce its subpoena duces tecum with regard to witness
affidavits. Pursuant to Sec.
102.118(b)(1) of the Board’s Rules and Regulations, the Respondent was provided
with witnesses’ affidavits prior to its cross-examination of those witnesses,
and it had an opportunity to cross-examine those witnesses about their prior
statements. See, e.g.,
In
adopting the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1)
by demoting Hornsby and removing certain benefits from him, we disavow his
reliance on
In
adopting the judge’s findings that the Respondent’s supervisors made statements
that violated Sec. 8(a)(1), we find it unnecessary to pass on his finding that
Houchins’ statement that employees’ union activities had opened up a “can of
worms” was an unlawful threat, as such a finding would be cumulative of other
threats found in this case. We also find
it unnecessary to pass on the judge’s finding that the stipulated supervisors
were the Respondent’s agents even if they were not supervisors within the
meaning of the Act. Further, we note
that the Respondent’s exceptions are very limited. In this regard, the Respondent argues that
some of the supervisors’ statements were noncoercive only because the supervisors did not have the authority to actually
effect the threats that they conveyed.
However, the fact that they may not have had the authority to actually
make those decisions does not render their statements noncoercive. Moreover, the judge found that the
supervisors here did have the authority to convey discipline and discharge
decisions.
[4] The General
Counsel’s cross-exceptions request that the Board alter its current practice of
awarding only simple interest on backpay and other monetary awards and instead
adopt a policy of compounding interest on a quarterly basis. Having duly considered the matter, we are not
prepared at this time to deviate from our current practice of assessing simple
interest. See Sawgrass Auto Mall, 353 NLRB No. 40, slip op. at 1 fn. 3
(2008).
1 All dates herein are in 2006, unless otherwise stated.
2 Respondent amended its answer at the outset of the hearing
to raise the defense that Hornsby was a supervisor within the meaning of Sec.
2(11) of the Act.
3 In making these findings, I have considered all the
witnesses’ demeanor, the content of their testimony, and the inherent probabilities
of the record. In certain instances, I have credited some but not all of what a
witness said. See NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), reversed on
other grounds 340 U.S. 474 (1951). All testimony has been considered, if certain
aspects of a witness’ testimony are not mentioned it is because it was not
credited, or cumulative of the credited evidence or testimony set forth above.
Further discussions of the witnesses’ testimony and credibility are set forth
throughout this decision.
4 McMahan is also Whitaker’s son-in-law.
5 Hornsby carried a recorder in his pocket
at the time he gave Whitaker the letter on August 29, because Hornsby thought
he would receive negative feedback at the time he tendered the letter. Respondent’s
counsel represented he received an inaudible CD from the
6
Treadway testified he started working for Respondent in 2004, and he was laid
off on December 11. He started working at the PSD site in February and was
working there at the time of his layoff. Treadway was laid off when the project
had reached substantial completion. Treadway was the last carpenter to work on
the project. Treadway testified Hornsby talked to him about going union in August
2006. Treadway testified he saw Houchins around 7:30 to 8 a.m. at the tool
trailer on August 29. Treadway testified Hornsby was talking about turning in
his letter and Whitaker taking away the company truck and gas card. Treadway
testified Houchins made the comment, “that’s what you get.” Treadway testified
Houchins is a supervisor in that he has the ability to fire and discipline someone.
7
Hornsby testified there were times when McMahan was Hornsby’s supervisor.
Hornsby testified, “if he comes to my job I’m to answer to him.” Hornsby
testified McMahan was not working the job where Hornsby was working. Rather,
McMahan was at the
8
Treadway testified he met with Begovich in early August, and he received a
letter from the
9
Ice worked for Respondent as a laborer from September 2005 until he quit on
September 7, 2006. Ice started working
at PSD site around April 2006, at which time Hornsby was the foreman on Ice’s
crew. At the time he quit, Ice was finishing concrete at the PSD site.
10
Ice testified that he thought the change in schedule was due to his union
letter, because when the letter came out everything changed. Ice testified that
he had worked construction for about 5 years and that hours can shift at the
end of the summer for day light purposes. There was no allegation before me
that the shift change was violative of the Act.
11
While he initially testified in a somewhat ambiguous fashion about Hornsby’s
rate of pay, Whitaker later testified that, prior to the hearing, Whitaker had
reviewed Respondent’s financial records which disclosed Respondent was paying
Hornsby at a carpenter’s rate of pay during the course of Hornsby’s employment.
Whitaker testified that while Hornsby was being paid at a carpenter’s rate the
other carpenters only received that rate for doing carpenter’s work. Yet,
Hornsby received carpenter’s pay no matter what he was doing, including shoveling
snow. Whitaker claimed that Hornsby
earned more than Scott, Houchins, and McMahan.
12
Whitaker’s claim that Hornsby was a superintendent is not supported by
Respondent’s records. Hornsby’s written performance evaluation for the period
September 10, 2001, to October 1, 2005, lists him as a carpenter foreman.
Hornsby signed the document on October 19, 2005, next to the designation
marked, “Employee’s Signature.” Respondent
published an employee phone list dated January 13, 2006. On the list, Whittaker
is listed as president and his brother Bill is listed as vice president.
McMahan and Scott are listed as project managers, and Houchins is listed as 1
of 17 supervisors. Hornsby is listed as
one of eight foremen.
13
Whitaker testified that when he spoke to Hornsby, Hornsby was mad at him and
that “he got up in my face.” Whitaker
testified Hornsby was about 2 feet away.
However, Whitaker also testified that Hornsby was a good employee and
that Hornsby “was mindful of his job and he wanted to move up in the company.”
14
Whitaker testified they had to get approval from Whitaker and his brother to
fire someone. Whitaker testified after they get authorization from him they
will tell someone they are disciplined or fired.
15
See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
16
Respondent did not address this issue in its posthearing brief, and has
provided no case support for its contention that it is not bound by the
statements of its supervisors.
17
Counsel for the General Counsel argues in his brief, as set forth in the
complaint, that Whitaker’s statement constituted a threat of unspecified
reprisals. To the contrary, I find that Whitaker’s threat was specific, and did
not leave much to the imagination. Rather, it is a clear threat of physical
harm. Indeed, Whitaker tried to justify the remark by claiming Hornsby was in
his face and angry. As set forth above, I have not credited Whitaker’s
assertions as to Hornsby’s conduct.
18
Counsel for the General Counsel urges for the first time in its brief that the
remedy include payment of compound rather than simple interest. Thus, Respondent has not had an opportunity
to address the request. Moreover, since this is a request for a change in
current Board policy I am leaving this request as an issue to be considered by
the Board.
19
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections
to them shall be deemed waived for all purposes.
20
If this Order is enforced by a judgment of a
21
The General Counsel requests in its brief that Respondent mail the notice to
any employees who have left Respondent’s employ since its commission of unfair
labor practices. Whitaker’s testimony revealed that Respondent’s staff varied
in size from 600 to 1000 employees. Hornsby only had about five employees on
his crew, and there was testimony that Hornsby’s crew on occasion worked beside
the other Cool Ridge Flat Top crew and attended weekly safety meetings with
that crew and its supervisor. As a result, I have concluded that all employees
on those crews became aware of Respondent’s unfair labor practices. Given the
conduct found violative of the Act herein, and the size of Respondent’s work
force, I do not find it appropriate to require Respondent to mail the notice to
all of the employees who have left its employ since August 29, 2006, save for
the employees in the crews at issue as described above. Otherwise, I find that
a posting of the notice at Respondent’s offices and all of its jobsites will be
sufficient to remedy the unfair labor practices found herein.