Webb's Industrial Plant Service, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1982

260 N.L.R.B. 933 (N.L.R.B. 1982)

WFII'S INl)UtSTRIAl PLANI SRV'IC[, INC
Webb's Industrial Plant Service, Inc. and Paul
Huesman and Victor Van Hoose. Cases 9-CA-
15105-1 and 9-CA-15105-2
March 15, 1982
DECISION AND ORDER
By CHAIRM.AN VAN DE WATER ANI)
MENFtI ERS FANNING AND) HUNITER
On September 30, 1981, Administrative Law
Judge Thomas E. Bracken issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Webb's
Industrial Plant Service, Inc., Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
' Respondent has excepted to the Administrative aw Judge's failure
to strike Supervisor Jerry Smart's teslimony. We find no merit In Re-
spolndent's excep!tions for the reasons given by, the Adrministralti\ e L.avk
Judge at the hearing
2 Respondetit has excepted Io certain credibility findings made bh Ihe
Administrative Law Judge It is the Board's established policy not to
overrule artn administralive lays judge's resolutions with respect Io credi
bility unless the clear preponderance of all of the relev ant es iden.e con-
vinces us that the resolutions are incorrect Standard Dri HWall Prcsduls.
Inc, 91 NLRB 544 (1950). enfd 188 F.2d 562 (ld Cir 1951!) 'e haxe
carefully examined the record and find no basis for reversing his findings
In adopting the Admlnistrative Law Judge', firnding that Respondent
violated Sec 8la)tl) of the Act bh threatening to discharge \'an Htoose
for engaging in union activity, e dio not rel 5 on the Administratrie I al,
Judge's citation to (onagra. Inc . 248 N RBH io) (1980. and Elthl c('rp,-
ration, 231 NL. RB 431 (1977) Instead. swe relt on those cases where x C
have found a violation of Sec X(a)tll of the Act u hern threats are mitade
to an employee by a "friendly" supervisor See, e g . Ja Mold & au-
chine. Inc . 255 NLRB '142 ('1)Sll .I afild' Dairiv [arni, Inc, 225
NLRB 1017, 10()1(1976 }
We also co,rrect the following inadvertent error in the Adminlisritie
Law Judge's Decisiowlnit sa III.c . par 5. Webhh learned abohult \lan
Hoose's dissatis-actioll cronterning ;1in upcornliig salle oi i Mlrch I I not
May I I
260 NLRB No. 123
DECISION
SI I\I MI.N I OF I IF- CASI
TiIos, Ms E. BRACKiN, Administrative Law Judge:
These cases were heard at Cincinnati, Ohio. on
November 26 and December 9 and 10. 1980.' The
charges 'vere filed by the Charging Parties on March 24
and 28. respectively. A complaint was issued on May 8
for Case 9-CA-15105-1, and an order consolidating
complaint was issued on June 10, 1980. The primary
issues are whether the Company, the Respondent herein.
(a) unlaw fully threatened an employee in violation of
Section 8(a)(I) of the Act: (b) unlawfully informed an
employee that he was being discharged because of his
union activities; and (c) discriminatorily discharged two
union supporters. in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and the Company, I make
the following:
FINI)IN(S OF FACT
. IURISI)IC I ON
The Company. an Ohio corporation, is engaged in the
retail sale of industrial safety shoes to various manufac-
turing concerns in the greater Cincinnati area and,
during the past 12 months, has derived gross revenues in
excess of $500,000. and in the same period has received
at its facility goods valued in excess of $50,000 which
were shipped from points outside the State of Ohio. The
Company admits, and I find, that it is an employer en-
gaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. I'Hi I.ABOR ORGANIZATION
The International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THEI Al.I i(t;ED UNFAIR L.ABOR PRACTICIS
A. Background
In July 1977 Kyle Webb, Jr., took over the business
set forth in this case as its president, sole owner, and
chief operating officer. The Company sold industrial
safety shoes at both a store in Cincinnati, and through
the deployment of three tractor-trailers, referred to as
shoemobiles. Each shoemobile was operated by a driver-
salesman who would be dispatched each day to various
industrial plants. At the industrial plant the driver would
park his unit and then, as a salesman, conduct shoe fit-
ting in the trailer. Most, if not all, of the visits were pre-
arranged by representatives of Respondent with repre-
sentatives of the companies. whose employees were to be
offered the opportunity to buy the safety shoes at their
' \11 All al, irt In l S4X) unless, other.ikse indlcate(d
I)F C ISI()NS ()F NA II()NAII I AI()R RI LAT IONS I()ARI)
jobsite. The trailers were loaded at the store chiefly byh
store employees, most of whom were part-time workers
At the times material to the case, the three driver-
salesmen were Paul Huesman, who had been hired in
October 1977, Victor Van Hoose in September 1978, and
Rudy Crandall ill early 1979. Jerry H. Smart, who had
been hired in September 1978 as the dispatcher and
scheduler, was the supervisor of the drivers.' The store
manager was Bill Ogdin, who had been hired prior to
Smart, but who was subordinate to him. According to
Webb, Ogdin was a supervisor with the power to fire.
B. Commencement oj' Union ,4ctiviot
As testified to credibly by Huesman,:' in early 1979 he
and the other two driver-salesmen, Van Hoose and Cran-
dall, began to discuss with each other, and with Store
Manager Ogdin, job problems they were encountering.
The drivers' chief complaint was about the stock they
carried on their trailers, as they regarded it as insufficient
to make the sales they believed they could make, if they
had a sufficient supply in their trailers. ' In addition, these
employees discussed rumored changes that were to occur
in their fringe benefits as set forth in the employees'
booklet. These conversations occurred in the trailers of
the drivers, as well as in the store.
As credibly testified to by Van Hoose, during one of
their complaint sessions in early 1979 Huesman stated
that things had gotten so bad that they needed union rep-
resentation. Prior to coming to work for Respondent
Huesman had been a member of Sheet Metal Workers
Local 141 for 25 years. s Huesman then specifically men-
tioned the Teamsters Union as a prospective representa-
tive, but further advised that "he was going to check a
few unions out to see which one would really have us
because of our size." The record does not disclose that
Huesman contacted any unions at this time.
C. The Events of June 30. 1979
The record does show that on June 30, 1979, the
matter of union representation surfaced at a regularly
scheduled Saturday meeting at the Company's office.
Since approximately March 1978 Respondent had been
holding regularly scheduled meetings every Saturday
morning for its employees. At these meetings written
schedules for the coming week were given to the driver-
salesmen, instructions were issued on special type shoes,
questions were answered, and the weekly paychecks
were distributed to the drivers. The employees were paid
for the time spent at the meetings.
Respondell, in its ansllser toi Case 9 CA 151()5 1 denies thal Smart
b'as a supervisor under the Act, hut in an amcnldecd ;llsNer, alld ill its
answer to the clmsolidated complaint, admits Ihat Smart wv.as a slatlorsY
supervisor -the record also clearly discloses that he m as a supervis\or
under the Act
' Much of the testimlon)l by all witnesses s.as uncontradicted and is for
the most part credited In sec D helow I have set frrth credibility resi-
lutions in detail
' The drivers were paid a weekly base pasy and also receivcd a com-
mission oln each pair of shoes sold
s Huesman's membership in the uioin sas knos% l, bh Webbh since
"right after" he h;ld heen hired Webh also knew thai Hulesman sl Tas a
trustee of that uni[on during his emplosmenllt v ili RcpondlCeti and had
given him time ,off to attend annual unlito courlelltlnins.
On the morning of Saturday, June 30. 1979, Huesman
came to the store prior to the normal meeting time, and
met with Store Manager Bill Ogdin. Ogdin informed
ltuesman that he had discussed the matter of securing a
union with Van Hoose and Crandall prior to Huesman's
arrival. Huesman then advised Ogdin that these two
drivers would have to tell him that they wanted a union
and, if they did, then he would be their "spokesman to
ask Kyle for a union." When Van Hoose and Crandall
arrived, Huesman asked each employee if he wanted a
union, and both replied that they did.
These employees then went upstairs, and Smart com-
menced their regular meeting, passing out the weekly
schedules and discussing shoes and their problems with
the stock on their trucks. Huesman then left the meeting
room and walked into Webb's adjacent office.
Webb testified that Huesman walked into his office
"complaining about the inventory" and that Huesman
became "more loud, more vocal," finally stating that
"we need a union here." According to Smart, Webb
came out of his office, and as he spoke his voice was
"heated and angry." As Webb admitted, he went into the
meeting room and took a "straw vote" directly asking
each of the employees present, except Smart, if he
wanted a union. Webb admitted that Ogdin and Hues-
manl stated that they wanted a union, and that Crandall
said he did not. As to Van Hoose, Webb testified that he
answered, "1 don't want a Union, I want a representa-
tive." ; After the poll was over Webb testified that he
told the employees in a heated voice "to go ahead and
pursue it," and the meeting then broke up. Smart credi-
bly testified that, just before the meeting broke up, Webb
told the drivers, "You will not have it as good, you will
not make as much money with the Union as what you're
making now."
Shortly after this meeting Webb conducted two other
meetings. He first met with Smart, Mrs. Webb, and Van
Hoose, for the purpose of learning, as he testified, what
Van Hoose meant by a paid representative. He then told
Van Hoose that he could see no difference between a
union and a paid representative, and that Smart was his
representative and could present his grievances. He then
concluded by telling Van Hoose that he was giving him
a raise.7 Webb then met with Smart and Crandall, telling
Crandall that he was doing a good job, and he was
giving him a raise.'
Webb admitted that he gave raises to Van Hoose and
Crandall, "to make things better and to make them more
willing not to vote in a union." He further admitted that
he did not give a raise to Huesman for several reasons,
but the main reason was that "he was the one that insti-
gated-or, in my opinion instigated the union talks," and
he did not want a union in his company.
Vall 1loie testified fiat hcl w en ebb first pointed his finger at him he
stullered anid staminrll edr cinLd did tell him that he wanted representation,
hut hicI Wehebb again poiile his fillger at himl and said, "Yes or No." he
replied, "Yes Smart corroboratiied Vanlil Hooescs ICestimonL that he told
bhh lie \alletd a Ilnlolll
'i;ian lome did recetle all Ilcrease of $1it per week effective the oll-
I islng pa, roll of Jul5 6. 1I71)
C ranliall alsl rciclscd i 'Sll)-al-wsctk raise al the same pas period as
Vaill 1 .....
934
WIAHMtS IND)tUS IRIAL Pt ANt SIERVICE INC'
That afternoon Webb told Smart that the Saturday
meetings were canceled, and that the drivers were no
longer required to come in on Saturday. I he president
admitted that one of his reasons was to keep employees
apart so that they would not be discussing a union.
Smart testified that, at this same conference, Webb
told him that he wanted Huesman out of the Company
so that there would he no more talk about unions. Smart
further testified that Webb directed him to give Huesman
"small jobs from that time forward, more or less force
him into quitting so that he would have practically no
income as far as commissions." Webb denied that he told
Smart to schedule Hucsmian with small jobs.
D. Credihilit,
Smart was the most impressive witness at the hearing,
and I credit his testimony including the fact that Webb
told him to give Huesman small jobs so that he would
quit.9 He answered all questions directly and in rapid-fire
order without any hesitation or equivocation. even when
subjected to searching and grueling cross-examination.
Also, further supporting his credibility is the fact that he
testified against his employer's interest while still in his
employ.
I have also found Van Hoose to be a credible witness,
as he impressed me as a sincere, minimally educated.
honest truckdriver-salesman. who conscientiously was
seeking to answer the questions put to him straightfor-
wardly and without equivocation. Huesman was a garru-
lous, rambling witness, but his testimony was essentially
uncontradicted, and as such is credited.
Webb was an articulate, smooth witness, but he did
not impress me as a witness in whose testimony I could
have confidence. Rather, I received the strong impres-
sion that he was artfully trying to furnish answers that
helped his cause, rather than trying to state the facts as
he remembered them. I also find that the weight of the
evidence on the record as a whole is clearly against the
denials of the president.
E. The November 1979 Threat
Subsequent to the June 30, 1979. meeting, Huesman
did contact the Teamsters and Retail Clerks Unions as to
their possible representation of Respondent's employees.
Little interest was expressed by these unions in such a
small unit, and Huesman let the matter drop.
The record discloses that the next time Van Hoose
talked about union representation was in November
1979, shortly before Thanksgiving. Van Hoose was in his
trailer outside the Cincinnati Milacron plant when Smart
approached him. Van Hoose told his supervisor that the
stock situation was going downhill, that he was losing
sales and customers, and that maybe the employees
should get a union in so as to relieve the pressure. Smart
recalled that Van Hoose stated that he wondered why
the union was dropped, that things were getting so bad,
he wanted a union brought into the Company. At this
9 In crediting Smart I hase considered Ihat he testified on direct that
he had been cortnicted ,of a crime (ioseer. he further tesifled that he
had told 'Webh of this matter when he "as hired, and this esitimons was
not challenged ill an) manner h\ Respondenti
point Smniart admitted telling him, "l said that because of
Mr. Webb's change in temperament and his attitude, that
anybody that even talked about a union would probably
be fired " Van Hoose made no reply.
Respondent argues in its brief that this conversation
was not coercive due to the close friendship which exist-
ed between Van Hoose and Smart. "' As stated in Cona-
gra. Inc., 24R NLRB 609 (1980), "It is no defense that a
violation is committed in a friendly or joking manner." It
is Nwell-estahlished Board and court law that, in determin-
ing whether an employer's conduct amounts to interfer-
ence, restraint, or coercion within the meaning of
Section 8(a)(1), the test is not the employer's intent or
motive hut whether the conduct is reasonably calculated
or tends to interfere with the full exercise of the rights
guaranteed by the Act. I find that the supervisor's
remark was coercive and violated Section 8(a)(1). Ethyl
Corporation, 231 NLRB 431 (1977).
F. TIhe Discharges of Van Iloose and Huesman
I. Van Hoose
On or about Wednesday, March 12, Van Hoose had
his shoemobile parked at the plant of Cincinnati Mila-
cron Company. Smart came to the trailer and discussed
with him how a forthcoming job would be handled at
the plant of a large-volume, once-a-year customer, For-
mica. This sales program was to commence at 10 or II
p.m. on Monday, March 17, for the convenience of that
company's night-shift employees. Smart informed Van
Hoose that this year he would sell current style shoes to
men and women out of his trailer, and that a second
driver, Crandall, would sell out of his trailer discontin-
ued men's and women's shoes, and that all commissions
would be divided equally between the two drivers. Van
Hoose protested strongly at this arrangement, claiming
that again he would do the larger share of the work, and
that it was a violation of an agreement made by the par-
ties in the previous year. Van Hoose described the agree-
ment as set forth below.
In the previous March, for a 2-week period, Respond-
ent did have a large volume sale at Formica, using two
shoemobiles. At this time, Crandall was a new driver-
salesman, and Van Hoose agreed with him and Smart to
split the commissions evenly with Crandall, while at the
same time Van Hoose would service Formica's 900 male
employees, while Crandall serviced 300 female employ-
ees. However, in the following year, Van Hoose was to
wait on the women, with Crandall handling the men,
with the commissions again divided equally." Smart tes-
"' The record shows that Van Hoose and Smart did not know each
oilher until Van Hoose's employment in September 1978 Smart testified
that he knew Van Hoorse as an employee and as a friend, and had gone
out socialls with him bto or three times in a sear Van Hoose testified
that the, werc close personal friends outside of wuork; Ihe drank coffee
ogether, buitt had Mn regular social activity
, W'ebh agreed that this was the agreement made in 1979, hut testified
that he changed the procedure because the price of shoes went up so sig-
nlficantl1 in the succeedilng sear. hile his basic contract price with For-
mica remained the same fie therefore had to use dis'continued sh(es
along ss ith Ihe carrent sto.k
o35
I)I C ISI()NS (): NAII()NAI. I.AB()R R'EI.ATIONS O()ARI)
tified that Webb had told him that morning how the
Formica account was to be handled, and he had con-
veyed the procedure to Van Hoose at Cincinnati Mila-
cron. He also testified that Van Hoose brought up unions
after he had been informed of the new procedure at For-
mica, telling him that the drivers would not be having
these problems if they had a union, and he was going to
contact a union. Smart then told Van Hoose that he was
sorry he felt that way, and he hoped to meet with Webb
and get Van Hoose's grievance straightened out. 12
On the following day, Thursday, March 13, Smart told
Van Hoose over the telephone that Webb had refused to
discuss the Formica job with the driver-salesman, and
that the job would be worked as previously set up. Van
Hoose then told his supervisor that, if the employees had
a union, this would not have happened to him and he
would not be faced with this problem. Upon Van Hoose
telling Smart that he would like to talk to an attorney
but did not know any, Smart informed him that he knew
a young attorney, and set up an appointment for that
evening. 1:1
That evening Van Hoose met with Smart and the at-
torney at Smart's apartment, where Van Hoose explained
the 1979 agreement for Formica, and the changes that
had been made for the 1980 selling. The attorney advised
Van Hoose that he had a binding oral contract but no
action could be taken until the commencement of the
sale at Formica.
On Friday Smart brought some stock to Van Hoose
on the Cincinnati Milacron site. The driver-salesman
then told Smart to tell Webb he had consulted an attor-
ney who thought Van Hoose had a binding contract, and
also that he was going to a union. Webb had gone to
Chicago on that day, so Smart was unable to deliver this
message.
On Saturday, March 15, Van Hoose and Smart talked
over the telephone from their residences. The driver-
salesman called to learn if anything had changed, and
Smart informed him that it had not, and that he thought
Webb was considering dismissing him.
Webb testified that on Monday morning, March 17, he
was in the store when Smart arrived about 8:30 a.m. Van
Hoose was not there and Webb admitted that he was not
scheduled to work until late that evening when the sale
at Formica started for the night-shift employees. Webb
was bothered by Van Hoose's absence as he testified
that, when there is a big fitting, although not required,
the driver would come in to get ready for the big fitting.
Webb then asked Smart, "What the hell is going on with
Mr. Van Hoose?" Smart then told him that Van Hoose
had consulted a lawyer and was going to sue him after
the first shoe was sold at Formica that evening.
1" Webb testified that, during the 2-week period before the F ormnica
job. Smart was helping Van Hoose at Cincinnati Milacron At some point
Smart had come to the president arid inornmed hinm that 'Van HItoose was
dissatisfied with the arrangement of Ihe forthcoming Ftormica sale, since
he had done 70 percent otf the work the year before
*3 Smart testified that tie told Webb, on that same day, that Van lHoose
was going io see an attorney, anid probably also go to the Unionl Webb's
reply was, "You're either for me or against me Anid if you're against me
I'll eliminate the problen." Webb then refused to meet with Van\: Iloose
Webb denied that it ,was ever mentioned ito him that Van ottosc wra
going to consult an allorney I credil Smart's testimrniL
Webb then called Van Hoose's residence to learn from
Mrs. Van Hoose that her husband was not home. Van
Hoose did return the call and, at Webb's request, arrived
at the office between 11 a.m. and noon, with his wife.
Van Hoose testified that Webb said, "Sharon, go down-
stairs and let Vic and I talk." Van Hoose then told Webb
that he wanted his wife present. At this point Webb re-
plied, "Okay. In that case you are fired." Van Hoose
was not told why he was fired and, when he picked up
his pay about an hour later, and asked why he was fired,
Webb told him, "I can't give you a reason." Webb did
agree with Van Hoose's statement that he had been a
good employee.
Webb denied that he discharged Van Hoose because
of his union activities and sympathies, and, when asked
on direct examination why he did discharge him, replied
as follows:
Mr. Van Hoose was discharged for insubordina-
tion. I called him into my office to have a meeting
with him. He brought his wife in, I asked his wife
to leave, he told me that she-he wanted her there,
that she was staying, that he wanted her there for-
as a witness, and I said, "I have no other choice
than to discharge you."
Webb further testified that, when Van Hoose came to
pick up his paycheck, he told him that if he had told his
wife to leave and had discussed with him what he had to
discuss, he probably would not have fired the driver-
salesman.
On cross-examination Webb testified that he had de-
cided to fire Van Hoose as of the end of his conversation
with Smart that morning, as a result of learning that Van
Hoose was going to sue him.
2. Huesman
Following the June 30, 1979, meeting, Huesman found
that he was having more trouble with his stock and he
kept telling Webb and Smart that he needed more stock.
He also found that he was being assigned to smaller ac-
counts, while several larger ones like the Dap Company
and Durkee Food Company were taken away from
him. 4 He also had trouble in securing his schedule. He
would sometimes receive his schedule in the middle of
the week and, even so, find that it was changed several
times thereafter. t5 The Ford Company remained his prin-
cipal account although his visits to this customer went
from 3 days to 2 days a period. He particularly believed
'" Smart admitted that il accordance with Webb's instructions he cut
iHuesnlall's schedule, and gave him small jobs, and on occasion gave him
a jobh that could be handled in short hours, but which involved a much
loniger than usual drive to the jobsilte Webb testified that he did not
reduce Huesnian's carnitrg potential after the meeting I credit Smart
Huesman's earnings are reviewed in sec. F.3, below. and the Company's
payroll records disclose that his commissions declined substantially after
the June 30. 1979, nmeting
i' tl the payroll period iof July 27 1979. tluesman was hospitalized
uwih appendicitis. arid twas i ff work for 7 weeks D)uring this period he
was voluntarily paid his base pay of $18) per week by the Company for
the first 3 weeks, and for the nerl 4 weeks he received 51() each week
from the Cnompany't silsurance plan, tol which the Company added $80 a
week
930
WEBB'S INDUSTRIAL PLANT SERVICE. INC
that he did not have the right shoes to sell to Ford em-
ployees. Webb attributed the decline in the Ford sales to
layoff of its employees. Huesman would report these lay-
offs to him.
On March 20 at 6 a.m. Huesman drove the Company's
converted pickup truck to a jobsite. where the trailer
had been previously spotted by some other employee.
He had trouble with a shortage of shoes, particularly a
popular shoe that many employees asked for. After sev-
eral hours of selling, he returned to the store to pick up
stock. "Tim," the new manager, told Huesman that he
was going to stock Huesman's trailer with certain type
shoes. Huesman objected to these shoes being put on the
trailer, saying that they were too many of the same sizes,
When the store manager insisted he had to do it, Hues-
man told him to go ahead, but he would talk to Webb
about it. Huesman then returned to that day's jobsite,
and sold shoes until about 5 p.m.
That evening Huesman, from his home, called Webb,
who was in his office. Huesman described the conversa-
tion as follows:
I told him that Tim had a bunch of shoes there
that I didn't feel should go on the truck and that
they wouldn't have helped the situation that I was
involved in on the jobs to sell shoes, and that I
didn't want them on the truck, and if he put them
on the truck I was going to go into the Ford Motor
Company and tell them what kind of stock he was
putting on the truck and then I was going to go to
the union. "
Q. What did Mr. Webb say?
A. He said, "You do that, you're fired."
Q. Did he say anything else?
A. I think he said, "If you do that, you're fired.
Bring the truck in tonight, and you're fired." I said,
"If you're going to fire me you're going to fire me
on the job in the morning. If I came in now I'd
probably punch you in the nose."
According to Webb, the following events took place
that evening:
A. What happened is, is my wife gave me the
background on what had happened, I took the
phone, and Paul said that he was not going to put
on the 436's on his truck, that there wasn't enough
sizes, that there wasn't a complete run, and he
would not take those out there. And if they were
'" Huesman Ihought that this customer wa, either Ralston-Purina Conl-
pany or Nosvamiont. whereas %U'ehb testified that it was Narmnont No
records were produced. and it is urlnnccessar to resoll e this conflicl the
record is clear Ihat on Monda,. March 24, Huesma;n was scheduled to go
to Ihe Ford plant to seell shoes
" 'he date of Ogdin's leaving Respondent', enlpli,) andl the reason
therefor, are not disclosed in the record
'" On cross-examination Fluesman w as asked what tninon he nirant
when he told VWebb that he "as going to- F-ord and the union iHt replied
the "Teamsiers," who were located right aross frlrnl the Fo ird plant ()n
being shown his pretrial affidai.lt. he stated that he Ieall th[he UAW and
the Teamsters This portioll of his afid;iitl alas read ino the record is,
follow. "I meanit I would go toi the L 'A\ rid tell ther hr il tcrlhbers
were not being sersiced well at Ford I also icaflnt I v ould I rs t) li]
the UInion to get the aggrasiliion olff of nix ob"
on his truck, he would go to Ford's management
and the union and tell them about the inventory.
Q. And did you respond to that?
A. I did. I said-
Q. What-
A. I said, "If you do that, I'd have to fire you."
Q. What was Mr. Huesman's response, if any?
A. Mr. Huesman said, "If you fire me, I'll come
out there and beat the s- out of you, then go to
Ford's management, and then to the union."
Q. Did you respond?
A. I did. I said that, "If you would do that, then
I would have you arrested and prosecute you to the
full extent of the law."
Huesman then hung up and Webb discussed the just-
completed conversation with his wife, who was working
in the office that evening. His wife reminded Webb of
Huesman's past physical violence, consisting of episodes
with Smart and with Huesman's son, and recommended
that he fire Huesman. Webb then called Huesman back
and told him he wuas fired. Huesman's reply was, "You
can't fire me now. This is my time. You have to fire me
on Company time."
The following morning Webb and Smart drove out to
the jobsite where Huesman was scheduled to work. Not
finding him there, they drove to the Novamont jobsite. 9
At the Novamont site Webb asked Huesman to get in the
car, and all three drove back to the office. Webb admits
that Huesman was courteous, and they talked about non-
business affairs as they drove in. When they arrived at
the office Webb discharged Huesman.
Huesman testified that, when they arrived at the Com-
pany's office and he was told that he was fired, he asked
for a letter saying why he was fired, to tell him what he
did wrong. Webb advised Huesman that he would give
him a letter. On the following Monday Huesman went in
for his pay, but he was not told why he was fired, nor
does the record show that he was ever given a letter set-
ting forth the reason for his discharge.
Respondent asserts in its brief that Huesman's income,
as demonstrated by the payroll records, did not suffer
after the June 30, 1979, meeting. An examination of
Huesman's payroll record does not bear this out. For the
21 weeks prior to the tumultuous meeting of June 30,
1979, Huesman had average commissions of $52.52 a
week. For the 30 weeks he worked after July 6, 1979,
until his discharge, he averaged $41.65 commissions per
week, an average loss of $10.87 per week, which consti-
tutes a 20.7-percent reduction in his commissions. It is to
be noted that Van Hoose's average commissions in the
same periods, that is, before June 30 and after, averaged
$87.15 and $83.37 per week, a percentage difference of
only 3.8 percent." Thus, it is evident that Huesman's
" tuesmanl tesllied that he drote the pirckup truck to the Rall ,on
Purinra lohsilt the net mnrnillng, knowring that his job aslgrinment for th,
d! ws;1s asit Signode t lo, cx r, he had Io couple tip the trailer to his on-
xerled pickup truck in order it pull the trailer to the IneL, iohsle l hr
dlrll wheelss ere u i ll td. altld he had trouhle w ndlnllg them Lip. ' hl1h
dlela3ed hil li ginling [o1 I rI ll sxs assig iinieilnt
- Nol oiriparirs i cal he iadle ilith ( randa{l',l p A roll restrd, is hlc
srld dti1 i ltilrt1ld shoeIs, Il Siiilass it1 fNla lrarksi, arld huh a spatal ar-
r.arlgertlllnet s itih Vchebb ahbitt r.tel\ iic a p¢r-.'rlla i it tht sals
937
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
commissions did suffer substantially after June 30, 1979.
and that Webb's instructions to Smart to give him small
jobs were being carried out.
3. Analysis and conclusions
The central issue presented by this proceeding is
whether Respondent discharged its employees Victor
Van Hoose and Paul Huesman because of their participa-
tion in union activities, and thereby violated Section
8(a)(1) and (3) of the Act. In applying the teachings of
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980), 1 find that the General Counsel has sus-
tained his burden of establishing a prima facic case that
Van Hoose's and Huesman's union activities motivated
Respondent's decision to discharge them.
The evidence clearly established that Van Hoose and
Huesman were the two union activists at Respondent's
place of business. Webb became acutely aware of this on
June 30, 1979, when Huesman unceremoniously entered
the president's office loudly complaining about the stock,
and finally telling the president that the employees
needed a union, obviously to handle their grievances and
straighten out their problems. Webb's reaction was swift
and angry, as he immediately and face to face questioned
the employees if they wanted a union to represent them.
When two of the three driver-salesmen told him that
they wanted a union, he heatedly warned them that with
a union their working conditions would not be as good
as they were without a union.
Then, after the formal meeting was over he proceeded
at once to use the carrot and the stick to counterattack
the union movement and nip it in the bud. He quickly
gave Van Hoose and Crandall wage increases, and then
instructed Smart to give Huesman, who "instigated the
union talks," small jobs so as to eventually force him to
quit. Webb also scuttled the Saturday morning meeting,
thereby shortening their hours of work and making their
working conditions more favorable, as they iio longer
had to come in on Saturdays. It also met Webb's ad-
mitted objective of keeping the employees apart so that
they would have less of an opportunity to discuss union
representation.
While it is true, as Respondent states in its brief, that
these events occurred almost 9 months before the two
driver-salesmen were discharged, this time lap is not so
remote so as to extinguish Webb's antiunionism, and
these events may be considered as background to shed
light on Respondent's motivation in the instant case.
7'upco, Division of Dart Industries, 216 NL RB 1046
(1975).
Thus, the evidence establishes that Van Hoose and
Huesman were the leading union adherents; they were
vocal critics of Respondent's shoe supply and the stock-
ing of their trailers, which facts were well known by
Webb. Then, in the week of May 11, Webb learned that
Van Hoose was very dissatisfied about the way the shoes
were to be handled at the Formica sale. He also knew
from Smart that Van Hoose was going to see an attorney
and that he was again talking about unions. On Monday,
March 17, Webb found out that Van Hoose had actually
gone to an attorney over what he considered a grievance
against the Company. Then, on the evening of March 20,
Webb admitted that Huesman told him that if certain
shoes were put on his truck he would go to the union.
While the record does not set forth what union Huesman
was referring to, the word itself was a red flag to Webb,
as seen by his precipitate conduct on June 30, 1979,
when he canceled Saturday morning meetings, gave two
drivers a raise, deliberately did not give a raise to Hues-
man because he was the one who instigated the talk
about a union, and told Smart to make it rough for him
so as to make him quit.
The record is uncontested that Van Hoose was a good
driver-salesman. Respondent's Exhibit 6, the payroll re-
cords of Van Hoose for the period of February 6, 1979,
through March 17, 1980, show that he received a raise of
$15 a week to his base pay on March 4, 1979, and then
received the $10 raise on June 30, 1979.
Webb's shifting reasons for discharging Van Hoose do
not stand scrutiny. On the morning of March 21, Van
Hoose's request that his wife be allowed to remain in the
office was naive, but not so egregious as to warrant an
immediate discharge, without any warning as to his posi-
tion, and its possible consequences. The lack of warning
and the abruptness of discharge have long been recog-
nized as persuasive evidence as to the motivation of an
employer. .N'L.R.B. v. Midtown Service Co., Inc., 425
F.2d 665 (2d Cir. 1970): N.L.R.B. v. Montgomery Ward
& Co., Inc., 242 F.2d 497, 502 (2d Cir. 1957), cert. denied
355 U.S. 829.
Accordingly, I find that Respondent's knowledge of
these facts and Webb's fear that Van Hoose and Hues-
man would go to a union for representation were factors
in Webb's decisions to discharge them. I conclude there-
fore that the General Counsel has met his burden of
proof under Wright line.
I turn nowv to the reasons offered by Respondent to
rebut the General Counsel's case. On direct examination
Webb testified flatly that he discharged Van Hoose for
insubordination, the insubordination being Van Hoose's
refusal to tell his wife to leave the room. 2 1 Then, on
cross-examination, the president contradicted himself by
stating that he was going to discharge Van Hoose be-
cause he had learned the driver-salesman was going to
sue him. These inconsistent and shifting reasons, as well
as the record as a whole, lead me to the conclusion that
the alleged cause for Van Hoose's termination was pre-
textual. See PRS Limited, d/b/a F. & M. Importing Co.,
237 NLRB 628, 632 (1978). Grede Foundries, Inc., 211
NLRB 710, 711 (1974).
As to Huesman's discharge, Respondent contends that
it was because he threatened Webb with physical harm.
Assuming arguendo that Webb's version of the telephone
conversation is the more accurate, I note that Webb did
not discharge Huesman at the end of the first conversa-
tion when some mention of physical force was voiced by
Huesmanl. However. Huesman's final word to Webb, in
both versions of the conversation, was union. Although
the record does not show what union Webb thought
Huesman meant, the president knew he did not want any
union in his Company. This threat then was a signal to
l'ch h L[hidmlllttk'd t111t Iichl)l,. lll \ t 11i tio c or Silllrt Iidlcalted Ihal Vai
tIot... it gt) g11 -Il p I LttP, C 1-,, do Ic F:ormlll oa ib
938
\VWF.BB'S INDUSTRIAL PL-ANT SERVICE. INC.
Webb to eliminate the problem of having the last of the
union activists in his employ, by discharging him.
Webb's attempt to make the senior driver-salesman quit
by cutting his commissions had not worked, but here
was his opportunity to get rid of the union instigator,
and the president grasped it by calling Huesman back
and telling him he was discharged.
The incidents described by Mrs. Webb as establishing
that Huesman was a violent man were few and of a
minor nature. Huesman had been angry with his son
when he brought the father's damaged car to the office.
He had pushed his son, and had yelled at him that he
would kill him, but both drove away from the office
without any blows being struck. This incident occurred a
year before Huesman's discharge and there was no testi-
mony to show that anything violent occurred between
the father and son after they left the plant.
Two other incidents were described by Mrs. Webb.
both of which occurred prior to the June 30, 1979. meet-
ing. Huesman had grabbed the Company's outside sales-
man by the front of his shirt, and he also had grabbed
Smart by his lapels. That Webb regarded these two inci-
dents as minor is shown by the fact that no disciplinary
action was taken by Webb as to either incident.
Webb's conduct on the morning of March 21 also
belies the contention that he was worried about physical
harm from Huesman. The president drove out to Hues-
man's shoemobile with Smart, told Huesman to get in
the car, and then all three drove back to the office, while
they engaged in small talk, chiefly about their children.
Certainly if Webb considered Huesman to be a real and
present danger to his health, he would not have ridden
in the same automobile with Huesman the next morning.
Unquestionably Respondent had the right to discharge
Van Hoose and Huesman for any reason or no reason,
except it may not discharge them for engaging in union
activity. But, if the asserted reason is not reasonable,
then that fact is evidence that the true motive for dis-
charge is an unlawful one which Respondent seeks to
disguise. See Shattuck Denn Mining Corporation (Iron
King Branch) v. .:VL.R.B., 362 F.2d 466 (9th Cir. 1966);
First National Bank ofj Pueblo, 240 NLRB 184 (1979).
Finding that the alleged reasons for V'an Hoose's and
Huesman's discharges were false, I infer that the true
motive for terminating these two employees was because
they were seeking union representation, which Respond-
ent sought for a second time to nip in the bud. and rid
the Company of these two union adherents. Again. I find
the allegations by Respondent that there was cause to
discharge these employees as just too unpersuasise in this
factual context to believe Accordingly, I conclude that
Respondent by terminating VXan Hoose on March 17. and
Huesman on March 21. violated Section 8(a)(3) of the
Act. Heartland Food Warehou.se. DivLision ol Purity Su-
preme Supermarkets. 256 NLRB 940 (1981); Daonel C(on-
struction Company'. 229 NLRB 93 (1977).
G The March 20 Incident
As set forth above, Webb testified that. in his tele-
phone conversation with Huesman on the evening of
March 20, Huesman told him that, if certain shoes were
put on his truck, "he would go to Ford's malnagement
and the Union and tell them about the inventory."
Webb's admitted response was, "If you do that, I'd have
to fire you." What Webb meant by "that" is not clear.
He could have been referring to Huesman going to the
Ford Company alone, or going to Ford's union, or going
to a union which would represent Respondent's employ-
ees, or any combination of these acts. However, an em-
ployer's words may be ambiguous, and still constitute a
violation of the Act. Huesman knew that Webb had
reacted angrily in June 1979 when he had complained to
him about the stock, and had in tandem brought up
union representation. Thus, he could readily believe that
Webb's statement threatened him with discharge, that
was at least in part, because of his stated intention to go
to a union that would provide Respondent's employees
with representation. Accordingly, I find that Webb's
remark was a threat and coercive and violated Section
8(a)( 1 ) of the Act.
CONCI LSIONS O: L.Aw
1. By discharging Victor Van Hoose on March 17 and
Paul Huesman on March 21 because of their seeking
union representation, the Company engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)( 3) and (I) and Section 2(6) and (7) of the
Act.
2. By threatening employees with discharge for seek-
ing union representation. the Company violated Section
8(a)( I ) of the Act.
THE RFMID)Y
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist. and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent having discriminatorily discharged two
employees, I find it necessary to order it to offer them
reinstatement and make them whole for lost earnings and
other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less
any net interim earnings, in accordance with F. 4' Wool-
worth Company, 90 NLRB 289 (1950), plus interest as
computed in Florida Steel Corporation, 231 NLRB 651
(1977) See, generally. Isit Plumbing & Heating Co.. 138
NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recom-
mended:
ORDER 22
I'he RKespondenit, Webb's Industrial Plant Sertice, Inc.
Cincinnati, ()hio, its officers. agents, successors, and as-
signis. shall:
"[ 11 ItlCr CkCOw 11 t l it' t ·l~ l tlH ' I l/tIti wI pr cs et. x ht Stc 1 2 * 1
th11 Rildc, and R.gi lll at) l. I .tO -0 111;l I shr Reilt l Rlations '11 rd.. tlo
tjll-lllmm, krnlsl lil . ;111 i.L ' l dllillr i(( ()rdlcr ht'rtlIl sh iall. ,l plroxll'l d
lit,,, S< 1()1 4 S i iltl' R ls dtlild m .l R ,! .liltlwn. h. aolil(d t.e d hN tilt, Ilford .rl1
h.--rlwe 1 /ili11i llx,. .orll iJrl. .ilt] ()ri.i .1111 m Ld A h lh 'll l thCeLrcto
,.filJ h. ] ''TIIL ;~.A1I , t'cJ ,IJ] pulirTJ ,LM
939
DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for seeking union representation.
(b) Threatening its employees with discharge if they
sought union representation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Victor Van Hoose and Paul Huesman inme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits they
may have suffered as a result of the discrimination
against them, in the manner 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant at Cincinnati, Ohio, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and he maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in Nwrit-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
21 In the event that this Order is enfoirced by a Judgmentll of a United
States Court (of Appeals, the words in the notice readinlg "Polcd bh
Order of the National lhabor Relations HBoard" hall read "Poteld 'Pursu-
ant to a Judgment of the United States Court if Appeals lfot rcilg an
Order of the National l.abor Relatliom IHoard"
IT Is FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
APPENDIX
Norict. To EMPIOYEt.S
POSTI ED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees the right:
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for the purpose of collective
bargaining or other mutual aid or protection
To choose not to engage in these protected
concerted activities.
WE WiLL NOt discharge or otherwise discrimi-
nate against any of you for supporting any union.
WE WITl NOT threaten you for seeking union
representation.
WI wIll NOIF in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of rights guaranteed you by Section 7 of the Act.
\WI wul.L. offer Victor Van Hoose and Paul
Huesman immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and wE wil.l make them whole for
any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WFiBB'S INI)STRIAI PL AN SERVICE, INC
940