Detroit Paneling Systems

National Labor Relations Board - Board Decisions

Apr 10, 2000

330 N.L.R.B. 1170 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
Detroit Paneling Systems, Inc., a wholly owned sub-
sidiary of ERB Lumber, Inc. and Michigan Re-
gional Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO. Case 7–CA–39842
April 10, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On March 19, 1998, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs and the General Counsel and Charging
Party filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3
1. Contrary to our dissenting colleague, we agree with
the judge’s finding that the Respondent unlawfully dis-
charged employee Cedrick Greenhill.
There is no doubt that the Respondent had knowledge
of Greenhill’s union sympathies. The judge found that
on May 16, 1997, during a discussion between Foreman
Casey Treadaway and several employees, Greenhill chal-
lenged Treadaway’s antiunion message, and asked why it
so upset him that the employees wanted the Union and
were standing up for what they felt was right. In the
course of this discussion, Treadaway unlawfully threat-
ened that union supporters would be fired for no reason.
On the next working day, May 19, Treadaway dis-
charged Greenhill. (The judge aptly observed that the
“timing in this scenario leaves little to the imagination.”)
At about noon, Treadaway told Greenhill that he was no
longer needed and to go home. Because it was lunch-
time, Greenhill went to the lunchroom to join his co-
workers. Later, Treadaway came into the lunchroom and
terminated Greenhill for insubordination and poor work.
The alleged insubordination was Greenhill’s failure to
leave the premises when directed to do so.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s finding that Plant Manager Tim Oliver
unlawfully interrogated employee Edward Musser, we emphasize that
the record shows that Oliver told Musser that Vice President Rick
Kramer directed Oliver to ask if Musser was a card carrying union
member.
3 We modify the recommended Order to comply with the Board’s
decision in Indian Hills Care Center, 321 NLRB 144 (1996), as modi-
fied by Excel Container, 325 NLRB 17 (1997).
Given the Respondent’s knowledge of Greenhill’s un-
ion activity, the Respondent’s expressed hostility toward
unionization, and the proximity in time between Green-
hill’s union activity and his discharge, we agree with the
judge that the General Counsel made a strong showing
that the discharge was unlawfully motivated. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Further-
more, we do not agree with our dissenting colleague that
the Respondent demonstrated it would have discharged
Greenhill absent his union activity.
The Respondent gave Greenhill two reasons for his
discharge: poor work and insubordination. The judge,
however, discredited the claim that Greenhill was a poor
worker, finding instead that he had in fact been praised
for the quality of his work. The advancing of a false
reason for the discharge suggests that “there is another
motive [for the action that the Respondent] wishes to
conceal.” Cell Agricultural Mfg. Co., 311 NLRB 1228
fn. 3 (1993), enfd. in relevant part 41 F.3d 389 (8th Cir.
1994).
Turning to the second reason (insubordination), the
credited testimony shows that Treadaway, for unex-
plained reasons,4 told Greenhill to stop work and to go
home. Greenhill left his post and went to the lunchroom.
Later, Treadaway came into the lunchroom and dis-
charged Greenhill.
By stopping in the lunchroom, Greenhill may have
failed to follow the literal terms of Treadaway’s order to
“stop work and go home.” The question presented is
whether Greenhill’s alleged misconduct was the real rea-
son for his discharge or just a convenient pretext that the
Respondent seized on to rid itself of a union adherent.
“While it is a truism that management makes man-
agement decisions, not the Board, . . . it remains the
Board’s role, subject to our deferential review, to deter-
mine whether management’s proffered reasons were its
actual ones.” Uniroyal Technology Corp. v. NLRB, 151
F.3d 666, 670 (7th Cir. 1998). And, in making that de-
termination, it is surely appropriate to consider the insub-
stantial nature of the alleged misconduct. See Neptune
Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir.
1977) (“The rule is that if the employee has behaved
badly it won’t help him to adhere to the Union, and his
employer’s anti-union animus is not of controlling im-
portance. But if the employee is a good worker and his
breach of the work rules trivial, the more rational expla-
nation for discharge may be invidious motivation.”).
Here, it is claimed that Greenhill, an employee with a
good work record, was terminated because he joined his
coworkers in the lunchroom at lunchtime after being told
4 The judge discredited Treadaway’s version of events, including his
explanation for why he removed Greenhill from the production line.
330 NLRB No. 168
DETROIT PANELING SYSTEMS 1171
that he was no longer needed and to go home. Greenhill
had not been discharged at the time he was told to go
home, and the Respondent has not advanced any legiti-
mate business reason for not permitting him to sit in the
lunchroom with his fellow employees.
To the extent that Greenhill may have engaged in mis-
conduct, it was so trivial and insubstantial, and the Re-
spondent’s severe punishment of discharge so extreme,
as to raise the strong inference of retaliatory motive.5
Therefore, we find, in agreement with the judge, that the
Respondent’s assertion of insubordination was pretex-
tual. KNTV, 319 NLRB 447, 452 (1995).6 In our view,
the Respondent seized upon a trivial offense to discrimi-
nate against a union activist and “send a message” to
other employees who supported the Union.7
2. We agree with the judge’s finding that the Respon-
dent unlawfully discharged Edward Musser.
On April 18, 1997, Musser submitted an employment
application to the Respondent. The Respondent hired
him on May 5, 1997. The Respondent discharged him on
May 19, 1997, allegedly because he “falsified” his em-
ployment application by stating that he had been em-
ployed by Century Truss Company from June 1986 until
April 1997, when, in fact, he only actively worked there
until July 1996.
On May 16, 1997, the day after the meeting at which
Musser’s expression of prounion statements upset Vice
President Kramer, Human Resource Manager Debbie
Demick discovered certain “discrepancies” in Musser’s
application. When she called Century Truss, she was
informed that Musser had not worked actively for Cen-
tury Truss since July 19, 1996, when he went on personal
leave status.
When Musser arrived for work on May 19, 1997, Plant
Manager Oliver called him to his office, where Demick
was waiting. When Demick confronted him with the
Century Truss “discrepancy,” Musser explained that he

5 See, e.g., NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1036 (5th Cir.
1993); Neptune Water Meter Co., supra, 551 F.2d at 570; NLRB v.
Cousins Associates, Inc., 283 F.2d 242, 243 (2d Cir. 1960).
6 In adopting the judge’s finding that the Respondent unlawfully dis-
charged Greenhill, we find it unnecessary to rely on his comment that
Greenhill’s alleged insubordination “does not strike me as a good rea-
son for which an employee should be fired.” It is well established that
“[t]he [B]oard cannot substitute its judgment for that of the employer”
and decide what constitutes appropriate discipline. Corriveau & Routh-
ier Cement Block v. NLRB, 410 F.2d 347, 350 (1st Cir. 1969), citing
NLRB v. Ogle Protection Service, 375 F.2d 497, 505 (6th Cir. 1967),
cert. denied 389 U.S. 843 (1967). Our unfair labor practice finding is
not based on the ground that the reasons the Respondent advanced for
discharging Greenhill were not “good” ones. Rather, as discussed
above, we are finding that the reasons the Respondent proffered were
not its actual ones.
7 See NLRB v. Eastern Massachusetts Street Railway Co., 235 F.2d
700, 709–710 (1st Cir.1955), cert. denied 352 U.S. 951 (1956) (em-
ployer’s right to discipline for cause cannot be used as a “cloak” to
protect an employer which is using minor insubordination of an em-
ployee to justify a discharge for the purpose of intimidating or coercing
other employees’ protected activities).
was on leave of absence from Century Truss, that he
could return at any time, and that he could provide the
Respondent with a letter to that effect. This letter shows
that Century Truss granted Musser a leave of absence
from July 19, 1996, to July 25, 1997. The Respondent
discharged him without seeking to verify his explanation.
In agreement with the judge, we find that the General
Counsel has established that Musser’s union activity was
a motivating factor in the Respondent’s decision to dis-
charge him. Wright Line, supra. Thus, as discussed
above, the record shows that the Respondent clearly had
knowledge of Musser’s union activity. In addition, the
Respondent exhibited strong antiunion animus, as evi-
denced by the several violations of Section 8(a)(1) it
committed. Further, Musser’s discharge occurred just 4
days after he revealed his prounion sentiments at the em-
ployee meeting.
Therefore, under Wright Line, the burden shifted to the
Respondent to demonstrate that it would have discharged
Musser even in the absence of his union activity. For the
following reasons, we find that the Respondent did not
satisfy its burden.
First, the record does not support the claim that
Musser’s application was false. The Respondent’s form
asks applicants to “[a]ccount for all periods of time both
employed and unemployed beginning with present or
latest Employer.” It is settled that “an employee on leave
of absence generally continues to be regarded as an em-
ployee unless overt action or objective evidence that the
employment relationship has been severed can establish
it.” Pullman Inc. v. NLRB, 379 F.2d 419, 423 (5th Cir.
1967), cited with approval in Air Liquide America Corp.,
324 NLRB 661, 663 (1997). Here, there is no evidence
that Musser’s employment relationship with Century
Truss had been “severed” at the time he applied for em-
ployment with the Respondent. On the contrary, he was
eligible to return to work at Century Truss until July 25,
1997. Therefore, as an employee on an approved leave
of absence, Musser was in fact “employed” by Century
Truss during the dates he indicated on his employment
application, and there was no “falsification.” The judge
correctly recognized this key fact when he stated that
“[t]echnically, Musser was not actively working for that
Company but he was still considered an employee.”
Second, the Respondent essentially ignored Musser’s
explanation and summarily rejected his offer to provide a
letter from Century Truss verifying his leave of absence.
This suggests that the Respondent had little interest in
ascertaining the true facts and instead was attempting to
find a plausible pretext to discharge him.8 See Sioux
8 Further, as to the Respondent’s assertion that it had also previously
discharged other employees for falsification of records, the Respondent
has not shown that these falsifications were comparable to the “falsifi-
cation of records, the Respondent has not shown that these falsifica-
tions were comparable to the “falsification” involved herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
Products, Inc. v. NLRB, 684 F.2d 1251, 1258–1259 (7th
Cir. 1982).
Third, the record shows that the Respondent reviewed
Musser’s application just one day after he “shook up”
Vice President Kramer at the employee meeting and was
unlawfully interrogated by Plant Manager Oliver. Al-
though Demick attempted to explain her tardy examina-
tion of Musser’s application by claiming that she was
“behind in her work,” the judge implicitly discredited her
testimony and found that the “timing already suggests
that the Respondent’s decision to review the application
was a pretext to discharge Musser, who had been re-
garded as a good employee.”
In short, given our view that there was no falsification,
we conclude that the Respondent seized the pretext it
was searching for and summarily discharged Musser,
thereby following through on the threats it made to dis-
charge union supporters. Accordingly, for all these rea-
sons, we adopt the judge’s finding that the Respondent
has failed to show it would have discharged Musser ab-
sent his union activity.9
ORDER
The National Labor Relations Board orders that the
Respondent, Detroit Paneling Systems, Inc., a wholly
owned subsidiary of ERB Lumber, Inc., Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Threatening employees with plant closure, plant re-
location, and discharge because of the employees’ union
support.
(c) Discharging or otherwise discriminating against
any employee for supporting Michigan Regional Council
of Carpenters, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO or any other labor organi-
zation.
(d) 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 action necessary to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, offer
Cedric Greenhill and Edward Musser full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Cedric Greenhill and Edward Musser whole
for any loss of earnings and other benefits suffered as a

9 Idle Wild Farm, 254 NLRB 691, 694 (1981) (employer lawfully
discharged employee, where unlike instant case employee admitted
falsifying employment application and circumstances did not justify
finding that falsification was a pretext to cover antiunion motivation).
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Detroit, Michigan facility copies of the attached no-
tice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 15, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I would reverse the judge’s finding that the Respon-
dent unlawfully discharged employee Cedrick Greenhill
in violation of Section 8(a)(3). The evidence establishes
that Supervisor Casey Treadaway told Greenhill he was
no longer needed and ordered him to leave the building
and to go home. There is no allegation or finding that
these actions were unlawful. After receiving this direct
order, Greenhill sat in the plant’s lunchroom and did not
leave the Respondent’s premises. The supervisor there-
upon handed Greenhill a note terminating him for insub-
ordination (refusal to leave the premises) and poor work.
The administrative law judge, in ostensibly applying
the Board’s Wright Line1 analysis, found that the General
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 251 NLRB 1083, 1089 (1982), enfd 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
DETROIT PANELING SYSTEMS 1173
Counsel had met his burden of proving that Greenhill’s
union activity was a motivating factor in his subsequent
discharge. The judge also rejected the Respondent’s
defense that it would have discharged Greenhill even in
the absence of any union considerations. The judge
noted that the Respondent had previously assured Green-
hill that he was a good worker. Moreover, in the judge’s
view, Greenhill’s alleged insubordination of sitting in the
lunchroom, after being ordered home, did not “strike [the
judge] as a good reason for which an employee should be
fired.”
As an initial matter, I believe the judge should have
confined himself to determining whether the Respon-
dent’s action in discharging Greenhill was motivated by
animus against Greenhill’s prior union activity.2 He
should not have colored his conclusions by his personal
view as to whether the incident merited discharge. More
importantly, as noted above, there was no assertion here
that Treadaway’s order (that Greenhill go home) was
itself unlawful. In my view, Greenhill’s disobeying a
lawful order by his supervisor was the reason for the Re-
spondent’s action. Thus, even assuming arguendo that
the General Counsel established a prima facie case, the
Respondent has overcome that prima facie case. GHR
Energy Corp., 294 NLRB 1011, 1012–1014 (1989). As
stated in Domsey Trading Corp., 310 NLRB 777, 789
(1993):

Employees are entitled to be union activists, and they
are protected by the Act for their union activity. How-
ever, the Act does not insulate them when they are in-
subordinate.

The majority does not quarrel with the proposition that
Greenhill “failed to follow the literal terms of
Treadaway’s order. . . .” However, my colleagues argue
that the disobedience of the order was not the real reason
for the discharge. In this regard, my colleagues say that
Greenhill’s stopping in the lunchroom and talking to em-
ployees there, (instead of leaving), was not substantial
misconduct. However, in my view, it is not the Board’s
function to determine degrees of disobedience. The Re-
spondent gave a lawful order to Greenhill, and my col-
leagues do not quarrel with the proposition that Greenhill
failed to follow the literal terms of that order. Accord-
ingly, the Respondent satisfied its rebuttal burden under
Wright Line.3

2 While ostensibly disavowing the judge’s subjective analysis of the
relative merits of Greenhill’s insubordination, the majority goes on to
term this misconduct as “trivial” and “insubstantial.” I would leave this
evaluation to the employer, in the absence of disparate treatment or
persuasive independent evidence of pretext. In any case, I view dis-
obedience of a supervisor’s order to leave the premises as a significant
act of insubordination clearly justifying discharge.
3 The fact that another Wright Line defense (poor work) was not es-
tablished is not a basis for rejecting the primary Wright Line defense
(insubordination).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten you with plant closure, plant re-
location, and discharge because of your union activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Michigan Regional
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO or any other union.
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, within 14 days from the date of the Board’s
Order, offer Cedric Greenhill and Edward Musser full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Cedric Greenhill and Edward Musser
whole for any loss of earnings and other benefits result-
ing from our discharge of them, less any net earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Cedric Greenhill and Edward Musser,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the discharges
will not be used against them in any way.

DETROIT PANELING SYSTEMS, INC., A WHOLLY
OWNED SUBSIDIARY OF ERB LUMBER, INC.

John Ferrer, Esq., for the General Counsel.
John P. Hancock Jr., Esq., of Detroit, Michigan, for the Re-
spondent.
Nicholas R. Nahat, Esq. (Novara, Tesija, Michel, P.C.), of
Southfield, Michigan, for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried before me in Detroit, Michigan, on November 5,
1997, upon a complaint dated July 31, 1997, charging the Re-
spondent, Detroit Paneling Systems, Inc. (the Respondent) with
violations of Section 8(a)(1) and (3) of the National Labor Re-
lations Act. The charge was filed by the Michigan Regional
Council of Carpenters, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO (the Union), on May 20, 1997,
as amended on May 27 and July 28, 1997. The allegations
charge the Respondent with independent violations of Section
8(a)(1) by (1) demanding that employees not meet with or des-
ignate the Union as their representative, (2) interrogating em-
ployees about the Union, and (3) by threatening employees
with plant closure, plant relocation, and their replacement by
nonunion employees. The 8(a)(3) and (1) allegations state that
the Respondent discharged two employees, Ed Musser and
Cedric Greenhill, because of their union activities.
The Respondent’s answer admits the jurisdictional allega-
tions in the complaint, including the supervisory hierarchy con-
sisting of Rick Kramer, vice president of ERB Lumber, Inc.,
Debbie Demick, human relations manager of ERB Lumber,
Inc., Tim Oliver, plant manager of Detroit Paneling Systems,
Inc., and Casey Treadaway, foreman. Respondent admits that
the two employees were discharged but it denies that the dis-
charges were union related and that it committed the independ-
ent 8(a)(1) allegations.
On the basis of the record as a whole, my observation of the
demeanor of the witnesses, and the briefs filed by the General
Counsel, the Charging Party, and the Respondent, I make the
following
FINDING OF FACT
I. JURISDICTION
Detroit Paneling Systems, Inc., a wholly owned subsidiary of
ERB Lumber, Inc., is located at 1401 Rosa Parks Boulevard,
Detroit, Michigan. In the conduct of its business, i.e., the
manufacture, sale, and distribution of building wall panels, the
Company had gross revenues in excess of $500,000 with pur-
chases of goods and their shipments in excess of $50,000 com-
ing from outside the State of Michigan. The Respondent is
admittedly an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
The Charging Party Union is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Detroit Paneling System, Inc. (DPS) as a subsidiary of ERB
Lumber employed more than 40 employees at its facility lo-
cated in Detroit. Among its employees were Cedric Greenhill
who submitted his application on March 14, 1991, and was
hired as a laborer in April 1997. Edward Musser was hired as a
laborer on May 5, 1997. He had submitted his application on
April 18, 1997, and was interviewed by Manager Tim Oliver.
On May 12, 1997, the Union made its attempt to organize the
employees. The Union’s organizer, Pat Raquepaw, passed out
handbills outside the gate in front of the Respondent’s facility.
The union literature included a notice of a union meeting to be
held on May 15, 1997.
On the same day, May 15, 1997, the Respondent held an
employee meeting in reaction to the union campaign. Vice
president of ERB Lumber, Richard Kramer, discussed the Un-
ion and unequivocally expressed the Company’s opposition to
the Union. An overhead projector beamed the Company’s
agenda on the wall, commencing with paragraphs 1–3 as fol-
lows (R. Exh. 10):

1. We have reason to believe that the union may at-
tempt to organize our location.
Union authorization cards. Don’t sign.
2. We at Erb do not believe in labor unions. Our pol-
icy is to communicate strictly with you. The union drives
a wedge between the associate and the company and
causes us all to lose focus on our customer.
3. With over 3600 associates, only 11 are unionized.

During his testimony, Kramer admitted that the purpose of
the meeting was “to make sure that the employees did not think
that we condone unionism” (Tr. 266). He also admitted that he
encouraged the employees not to sign union cards. He told the
assembled employees that if contacted by the Union, “I guess
we’d just encourage you not to talk to them. We don’t think
you have a reason or need to talk to them” (GC Exh. 13).
Kramer spoke at length about the employee benefits, comparing
them in a more favorable light than the union benefits.
Employee Musser interrupted Kramer’s speech and disputed
for example the Company’s claims that the Union does not
have a benefit package. Musser testified as follows (Tr. 150):

I raised my hand and I said, well, I came from a Union shop,
and we did have those benefits. If you were off for eight
days, on the eighth day, you would get $200 per week.

After the meeting, Kramer approached Musser and asked for
his name, where he had worked, and where he came from.
Musser identified himself and spelled his name for Kramer and
he told Kramer about his prior employment. Shortly thereafter
Plant Manager Oliver also spoke to Musser. Oliver said that
Musser “shook up Rick Kramer” and inquired whether Musser
“was still a card holding member of the Union” (Tr. 77).1
Musser answered, “Yes.” Oliver spoke to Musser again in the
office, praised his work, and indicated that he might be consid-
ered for a raise and a better job assignment.
The Union held its meeting that day. It was attended by 7 to
10 employees. Musser and Greenhill signed union authoriza-
tion cards (GC Exhs. 5, 7).
On the following day May 16, Casey Treadaway, the fore-
man, had a discussion with several employees about the Union
during the afternoon break. At one point, after Musser had
indicated his union sympathy, Treadaway responded in a ram-
bling speech, filled with invective and street language, that the
Company would move to Brighton or elsewhere and work on a
nonunion basis for $5 an hour if the employees selected the
Union. Treadaway in a high-pitched, excited manner threat-
ened that union supporters were going to get fired for no rea-
son, that the plant would shut down, locate elsewhere, and hire
people willing to work for less wages. Treadaway’s remarks
were recorded on a tape player. Although he initially denied
making these threats, he admitted that the recorded remarks
were his.

1 Based on his demeanor, I did not credit Oliver’s denial of the con-
versation. Oliver’s testimony appeared well rehearsed and insincere.
DETROIT PANELING SYSTEMS 1175
Shortly after these episodes on May 19, 1997, the Respon-
dent discharged Musser and Greenhill.
According to the Respondent, the two employees were dis-
charged for cause, Greenhill for insubordination and Musser for
falsification of his employment application. Both justifications
are tenuous and suspect. The employees were regarded as good
employees. In Musser’s case, the Respondent showed that
Musser had failed to disclose his union background on his ap-
plication and in Greenhill’s case, the insubordination was his
failure to leave the plant after he was told to “go home.”
III. UNFAIR LABOR PRACTICES
The complaint alleges that on May 15, 1997, Kramer de-
manded that employees not meet with union representatives or
designate the Union as their bargaining representative. Al-
though an employer has a right to attempt to convince its em-
ployees that the Union is not in their best interest, Section
8(a)(1) of the Act prohibits an employer to interfere with the
employees’ Section 7 rights. That is, an employer may not
order his employee not to engage in union activities. The re-
cord shows that Kramer spoke to the employees in order to
dissuade them from joining the Union. In that conversation, he
told the employees not to go down to the union meeting, and a
message from a projector, stated, inter alia, “Union authoriza-
tion cards. Don’t sign.”
The record shows that these messages appeared in the con-
text of the Company’s extended and lengthy discussion about
the Union and the attempt to compare company benefits with
the disadvantages of union membership. In this context, the
Company’s messages to the employees can be interpreted as
suggestions rather than as demands. I therefore find that the
employees were not actually ordered to dissociate themselves
from the Union and that the Company’s messages were not
sufficiently coercive to interfere with the employees’ Section 7
rights. I accordingly dismiss this allegation.
The next allegation of 8(a)(1) misconduct is supported by the
record. Plant Manager Oliver coercively interrogated Musser
when Oliver approached the employee after the antiunion meet-
ing with the comment that he shook up Kramer. Oliver then
asked whether Musser was still a card carrying union member.
The brief encounter between a high company official and an
employee immediately after the Company’s strong antiunion
message was coercive, particularly in connection with Oliver’s
remark that Musser’s questions had disturbed Kramer. The
question itself whether someone was a union member or not
after the Company indicated its strong antipathy, is clearly
coercive. I accordingly find an 8(a)(1) violation.
The alleged threats made by Supervisor Treadaway were
well documented and clearly unlawful. In his long tirade of
obscenities against the Union and union supporters he made it
clear to the employees that the Company would relocate or
close down or that it would discharge the employees if they
selected the Union. Although Treadaway initially denied mak-
ing the alleged threats, he agreed that he made the statements
which were heard on the tape recording. I have no difficulty
finding that the threats violated Section 8(a)(1) of the Act.
With respect to the discharges, the record shows that the
General Counsel made out a prima facie case. The discharge of
Greenhill was initiated by Treadaway. He testified that on May
19, he had received complaints from three other production line
employees that Greenhill was working too slow. Treadaway
ordered Greenhill to speed up the pace, but Greenhill replied to
“fuck” that. Treadaway testified that he told Greenhill to go
home and that Greenhill said that, “he wasn’t going any god-
dammed where.” Treadaway then decided to terminate Green-
hill for his refusal to leave the premises.
Based on Treadaway’s earlier testimony, where he contra-
dicted himself after he was confronted by the tape, I have not
credited his version of the events. Instead, I credit Greenhill
who testified that he was regarded as a good worker who had
never been reprimanded. On May 19, 1997, at around noon,
Treadaway told him that he was no longer needed and to go
home. Greenhill protested, demanding to know why Treadaway
told him that he was no longer needed. Greenhill then pro-
ceeded to the lunchroom because he had missed going with his
coworkers to lunch. As he sat in the lunchroom, Treadaway
handed him a written note stating that he was discharged for
insubordination and poor work (GC Exh. 10).
In agreement with the General Counsel and the Charging
Party, I find that the reasons were pretextual. The Respondent
was aware of Greenhill’s union sympathy. During a discussion
about the Union on May 16, 1997, between Treadaway and
several employees Greenhill challenged the foreman’s anti-
union message. He said: “Why was he upset because we want
the union. You know, we was standing up for what we felt was
right for us” (Tr. 22). Unlike the other employees who mostly
asked questions, Greenhill unequivocally revealed his prounion
sentiment to management.
Three days after this incident the Respondent discharged
Greenhill. The timing in this scenario leaves little to the imagi-
nation. On May 15, the Company held its antiunion employee
meeting where the Company’s vice president dissuaded the
employees from pursuing the Union, on May 16, Greenhill
revealed his union sympathies to Treadaway and challenged his
antiunion stance. Treadaway had already threatened that union
supporters would be discharged. It is apparent that the record
supports a strong prima facie case of an 8(a)(3) violation,
Wright Line, 251 NLRB 1083 (1980). The Respondent’s justi-
fication that Greenhill would have been discharged even in the
absence of any union consideration is not persuasive. In spite
of a claim of “poor work,” Greenhill had never received a writ-
ten reprimand. Treadaway claimed that Greenhill had received
oral reprimands, yet he could not remember specific instances.
To the contrary, Greenhill received reassurances that he was a
good worker. The alleged insubordination consisted of nor
more than sitting in the lunchroom after he was told to go
home. Such conduct does not strike me as a good reason for
which an employee should be fired. Finally, Treadaway’s tes-
timony did not impress me as reliable, it was inconsistent and
implausible.
Musser’s discharge was also motivated by antiunion animus.
Musser’s union sympathies were well known to the Respon-
dent. On May 15, 1997, he openly challenged management’s
antiunion campaign during the employee meeting. Immedi-
ately thereafter, Oliver interrogated him about his union mem-
bership and informed him that he had come to the attention of
Kramer. Musser attended the union meeting later that day and
signed a union card. The record clearly shows that the Re-
spondent had full knowledge of Musser’s union sympathy.
Initially, the Respondent may not have realized that Musser
was a union organizer or “union salt” when he was employed
on May 5, 1997. However, 1 day after the revelation of his
union support, the Respondent examined his job application.
Debbie Demick, human resource manager, testified that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
reviewed the application on May 16, 1997, after she had re-
turned to work from a period of absence. She testified that she
was behind in her work and discovered certain discrepancies
which were then used to discharge Musser on May 19, 1997.
The timing already suggests that the Respondent’s decision
to review the application was a pretext to discharge Musser,
who had been regarded as a good employee. The Respondent
acted in line with the threats expressed for Treadway that the
Respondent would discharge union supporters. I accordingly
find that the General Counsel has made out a prima facie case
of an 8(a)(3) and (1) violation.
The Company’s reasons for Musser’s discharge is not per-
suasive. The Company’s handbook lists falsification of docu-
ments as an offense for which an employee could be disciplined
“up to discharge” (R. Exh. 4). The falsification here consisted
of Musser’s representation on his employment application (GC
Exh. 8) that his prior employment was with Century Truss (GC
Exh. 9). In fact, Century Truss Company had agreed to place
Musser on a leave of absence per letter of July 19, 1996 (R.
Exh. 4). Technically, Musser was not actively working for that
Company but he was still considered an employee. Indeed,
during his earlier interview with Oliver concerning his job ap-
plication, Musser had informed the Company that he was on
vacation. In any case, during the meeting on May 19, 1997,
when he was questioned by Demick and Oliver about his em-
ployment status, Musser explained the leave of absence and
offered to have Century Truss verify the leave of absence.
According to the Respondent, however, the explanation was not
satisfactory.
In my view, the Respondent has failed to show that it would
have discharged Musser even in the absence of his union activ-
ity. The alleged offense was at the most a minor error which
did not affect Musser’s work habits or his ability to perform his
work. Wright Line, supra. I accordingly find that Musser’s
discharge violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Detroit Paneling System, Inc., a subsidiary of ERB Lum-
ber, Inc. is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(2), (6), and (7) of the Act.
3. By coercively interrogating employees concerning their
union activities the Respondent violated Section 8(a)(1) of the
Act.
4. By threatening employees with plant closure, plant
relocation and discharge, the Respondent violated Section
8(a)(1) of the Act.
5. By discharging its employees, Cedric Greenhill and Ed-
ward Musser, the Respondent violated Section 8(a)(3) and (1)
of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of the Section2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged Cedric Greenhill and Edward Musser, I shall recom-
mend that the Respondent offer them immediate and full rein-
statement to their former jobs or a substantially equivalent posi-
tion without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings they
may have suffered by reason of the discrimination against
them. All backpay provided shall be computed with interest on
a quarterly basis in the manner prescribed by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest com-
puted in the manner and amount prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]