Ducane Heating Corp.

National Labor Relations Board - Board Decisions

Jan 11, 1985

273 N.L.R.B. 1389 (N.L.R.B. 1985)

DUCANE HEATING CORP 1389
Ducane Heating Corporation and International
Union of Electrical, Radio and Machine Work-
ers, AFL-CIO. Cases 11-CA-8747, 11-CA-
8748, 11-CA-9044, and 11-CA--9248
11 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 4 August 1981 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
1. We agree with the judge that the Respondent
violated Section 8(a)(1), (3), and (4) of the Act
when it permanently laid off employee Betty G.
Robinson on 7 November 1979. At the hearing, the
Respondent filed a motion to dismiss the Robinson
allegation on the ground that the underlying
charge was untimely reconsidered by the General
Counsel under the Board's Rules and Regulations
and reinstated outside the time limitations of Sec-
tion 10(b). At the hearing, the judge denied the Re-
spondent's motion, applying Section 102.19(a) of
the Board's Rules and Regulations. We agree with
the judge's ruling, but only for the reasons set forth
below.
The Robinson charge (Case 11-CA-8747), filed
by the Union on 9 November 1979, was dismissed
by the Regional Director for Region 11 on 19 De-
cember 1979. Thereafter, the Union timely ap-
pealed the dismissal of this charge. The Union's
appeal was denied by the General Counsel on 14
March 1980 but, at the Union's request, it was
granted an extension until 11 April 1980 to file a
motion for reconsideration. The Union submitted a
motion for reconsideration dated 11 April 1980.
The exact date this motion was submitted is in
doubt. It is unclear from the record whether the
I The Respondent asserts, in essence, that the judge's resolutions of
credibility, findings of fact, and conclusions of law are the result of bias
After a careful examination of the entire record, we are satisfied that this
claim is without merit There Is no basis for finding that bias and partiali-
ty existed merely because the judge resolved important factual conflicts
in favor of the General Counsel's witnesses As the Supreme Court stated
in NLRB v Pittsburgh Steamship Co, 337 U S 656, 659 (1949), "[T]otal
rejection of an opposed view cannoi of Itself impugn the integrity or
competence of a trier of fact" Furthermore, the Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB
544 (1950), enfd 188 F 2d 362 (3d Cif 1951) We have carefully exam-
ined the record and find no basis for reversing the findings
Union's motion was actually received on Friday,
11 April, or Monday, 14 April 1980. 2 In any event,
the General Counsel accepted the Union's motion,
apparently in view of another charge against the
Respondent (Case 11-CA-9044) filed on 3 April
1980. On 24 April 1980 the General Counsel noti-
fied the parties that further processing of the
motion for reconsideration had been suspended
pending a determination on the merits of Case 11-
CA-9044. On 17 July 1980 a complaint on the
Robinson charge issued.
Section 102.19(a) 3 of the Board's Rules applies
to initial appeals of a Regional Director's dismissal
of a charge. Section 102.19(04 of the Board's
Rules, not considered by the judge, applies to a
motion for reconsideration of the General Coun-
sel's determination regarding the charging party's
appeal from the Regional Director's dismissal of its
charge. Both these Board Rules allow an initial 10-
day period in which to submit either the appeal or
the motion for reconsideration. In addition, Section
102.19(a) provides: "Consideration of an appeal un-
timely filed is within the discretion of the general
counsel upon good cause shown." Unlike Section
102.19(a), Section 102.19(c) does not have a similar
"good cause" requirement to be met before an un-
2 For purposes of this decision, we shall assume the motion was re-
ceived on 14 April 1980
3 Sec 102 I9(a) provides
If, after the charge has been filed, the regional director declines to
issue a complaint or, having withdrawn a complaint pursuant to sec-
tion 102 18, refuses to reissue it, he shall so advise the parties in writ-
ing, accompanied by a simple statement of the procedural or other
grounds for his action The person making the charge may obtain a
review of such action by filing an appeal with the general counsel in
Washington, D C, and filing a copy of the appeal with the regional
director, within 10 days from the service of the notice of such refus-
al to issue or reissue by the regional director, except as a shorter
period is provided by section 102 81 If an appeal is taken the person
doing so should notify all other parties of his action, but any failure
to give such notice shall not affect the validity of the appeal The
appeal shall contain a complete statement setting forth the facts and
reasons upon which it is based A request for extension of time to file
an appeal shall be in writing and be received by the general counsel,
and a copy of such request filed with the regional director, prior to
the expiration of the filing period Copies of the acknowledgment of
the filing of an appeal and of any ruling on a request for an extension
of time for the filing of an appeal shall be served on all parties Con-
sideration of an appeal untimely filed is within the discretion of the
general counsel upon good cause shown
4 Sec 102 19(c) states
The general counsel may sustain the regional director's refusal to
Issue or reissue a complaint, stating the grounds of his affirmance, or
may direct the regional director to take further action, the general
counsel's decision shall be served on all the parties A motion for re-
consideration of the decision must be filed within 10 days of service
of the decision, except as hereinafter provided, and shall state with
particularity the error requiring reconsideration A motion for recon-
sideration based upon newly discovered evidence which has become
available only since the decision on appeal shall be filed promptly on
discovery of such evidence Motions for reconsideration of a deci-
sion previously reconsidered will not be entertained, except in unusu-
al situations where the moving party can establish that new evidence
has been discovered which could not have been discovered by dili-
gent inquiry prior to the first reconsideration
273 NLRB No. 175
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely motion for reconsideration can be consid-
ered by the General Counsel. Thus, we find that it
is within the discretion of the General Counsel to
accept reconsideration motions submitted within
the 10(b) time limit, but beyond the 10-day period
provided by Section 102.19(c) itself or any exten-
sion given by the General Counsel. The General
Counsel need only act within the 10(b) period, and
that action can take the form of mere acceptance
of the untimely motion.
We find that there has been no showing that the
General Counsel acted arbitrarily or capriciously
or abused his discretion when he accepted the
Union's motion for reconsideration, even if 1 busi-
ness day late. We note that reconsideration was
granted by the General Counsel within the 10(b)
time limit, even though the investigation on the
Robinson charge was not completed and a com-
plaint thereon did not issue until 8 months after her
layoff. Thus, we conclude that the Robinson
charge was not extinguished by the operation of
Section 102.19(c) of the Board's Rules and is not
time-barred by Section 10(b) of the Act.
2. We also agree with the judge that the Re-
spondent violated Section 8(a)(1), (3), and (4) of
the Act when it discharged employee Randolph
McCrea on 29 February 1980. In accordance with
the judge, we find that the evidence concerning
McCrea's work record and production fails to
rebut the prima facie showing that his discharge
was motivated by his union activity and participa-
tion in prior Board proceedings, as more fully de-
tailed in the judge's decision. For the following
reasons, however, we reverse the judge's findings
and conclusions that McCrea's September 1979 sus-
pensions were unlawful.
The record reveals that the Union filed the
charge in Case 11-CA-8748 on 9 November 1979
alleging, in part, that the Respondent had violated
Section 8(a)(1) and (3) by suspending employee
McCrea on 7 September 1979 and again on 28 Sep-
tember 1979. Thereafter, on 19 December 1979, the
Regional Director refused to issue a complaint in-
volving McCrea's suspensions and dismissed the
portion of the charge pertaining to McCrea's sus-
pensions. No appeal from this dismissal was taken
by the Union.
On 3 April 1980 the Union filed a second charge
concerning McCrea, Case 11-CA-9044, alleging
that he had been discriminatorily discharged on 29
February 1980. After a complaint on McCrea's dis-
charge issued on 30 June 1980, the Acting Region-
al Director for Region 11 sua sponte revoked the
earlier dismissal of Case 11-CA-8748 pertaining to
McCrea's two September 1979 suspensions. In his
letter to the parties dated 11 July 1980, the Acting
Regional Director indicated the basis for revoking
the prior dismissal was the uncovering of new evi-
dence. On 17 July 1980 the Regional Director
issued a complaint on McCrea's suspensions and
consolidated Case 11-CA-8748 with the other
pending charges against the Respondent.
At the hearing commencing 17 February 1981,
the Respondent moved to dismiss the portions of
the outstanding consolidated complaint relating to
McCrea's September 1979 suspensions. The Re-
spondent argued that further proceedings on these
allegations were time-barred by Section 10(b) of
the Act.
The judge denied the Respondent's motion and
permitted the General Counsel to adduce evidence
relating to McCrea's suspensions. In so ruling, the
judge relied on California Pacific Signs, 233 NLRB
450 (1977); the General Counsel's authority under
Section 3(d) of the Act; and the General Counsel's
assertion that the issuance of the complaint, alleg-
ing a violation in McCrea's suspensions, after the
allegations earlier had been dismissed in December
1979, was based on "newly discovered evidence."
However, the General Counsel never disclosed
what constituted the "newly discovered evidence."
In disagreeing with the judge's disposition of al-
legations involving McCrea's suspensions, we find
that the Regional Director contravened the pur-
poses of the limitations proviso to Section 10(b) of
the Act 5 by reinstating a charge some 10 months
after McCrea's suspensions occurred. We note that,
while the charge was timely filed on 9 November
1979, it was thereafter dismissed by the Regional
Director, and no appeal from this dismissal was
ever filed. We hold today that a dismissed charge
may not be reinstated outside the 6-month limita-
tions period of Section 10(b) absent special circum-
stances in which a respondent fraudulently con-
ceals the operative facts underlying the alleged vio-
lation. Where there is a fraudulent concealment,
the limitations period begins to run when the
charging party knows or should have known of the
concealed facts. Accordingly, we reverse California
Pacific Signs, supra, and Winer Motors, 265 NLRB
1457 (1982), to the extent that they are inconsistent
with our decision.
In California Pacific Signs, supra, the Board per-
mitted the reinstatement of an earlier dismissed
charge some 10 months after the alleged violation.
5 Sec 10(b) of the Act contains the proviso
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against
whom such charge is made, unless the person aggrieved thereby was
prevented from flung such charge by reason of service in the armed
forces, in which event the six-month period shall be computed from
the day of his discharge
DUCANE HEATING CORP 1391
The Board found that the limitations proviso to
Section 10(b) is applicable only to the filing of the
charge and that Section 3(d) of the Act 6 grants the
General Counsel "virtually unlimited" discretion to
proceed on timely filed charges as he sees fit. The
Board said that, absent a showing that the General
Counsel had abused this authority, it would not
interfere with the exercise of his discretion.
Later, in Winer Motors, supra, a Board majority
did recognize certain limits on the General Coun-
sel's discretion, at least with respect to charges
withdrawn by a charging party. There, a Board
majority of former Chairman Van de Water and
former Member Zimmerman and Member Hunter
found that the General Counsel could not, for equi-
table reasons, reinstate a withdrawn charge outside
the limitations period absent fraudulent conceal-
ment by a respondent. However, a majority of
former Members Fanning, Jenkins, and Zimmer-
man did not find the same proscription applicable
to dismissed charges. Former Member Zimmerman
drew a distinction between withdrawn and dis-
missed charges. The former, he asserted "ceases to
exist," while the latter "continues to exist" because
the charging party has not conceded that the
charge lacks merit and, accordingly, the General
Counsel retains his discretionary authority to rein-
state a dismissed charge. We do not agree with the
distinction that former Member Zimmerman drew
in Winer Motors. Rather, we shall treat withdrawn
and dismissed charges alike and shall not allow the
reinstatement of either beyond the 6-month limita-
tions proviso absent the special circumstances men-
tioned above.
We disagree first with the notion that Section
3(d) bestows "virtually unlimited" discretion on the
General Counsel to reinstate charges outside the
10(b) limitations period. We find, instead, that the
General Counsel must exercise his discretion in
conformity with the limitations proviso created by
Congress. We note that the General Counsel's au-
thority is to be exercised "on behalf of the Board,"
and we find that we would exceed our own au-
thority were we to permit the General Counsel to
ignore the statutory limitations proviso.
Further, we find this standard must apply re-
gardless of whether the charge was withdrawn or
dismissed. We see no substantive distinction be-
tween a withdrawn and a dismissed charge. In
either event, the charge has been disposed of and,
6 Sec 3(d) of the Act provides in pertinent pan
[The General Counsel] shall have final authority, on behalf of the
Board, in respect of the investigation of charges and issuance of
complaints under section 10, and in respect of the prosecution of
such complaints before the Board, and shall have such other duties
as the Board may prescnbe or as may be provided by law
in effect, ceases to exist. 7 Moreover, it seems to us
that the dismissal of a charge by a government offi-
cial well versed in the intricacies of labor law cre-
ates the impression on members of the public that
the charge has been disposed of even more conclu-
sively than is the case when it is merely with-
drawn. 8
We note also that in Koppers Co., 163 NLRB 517
(1967), a case considered by the judge, the Board
held that a respondent has the right under the stat-
ute to be assured that, absent the existence of a
properly served charge on file, it will not be liable
for conduct occurring more than 6 months earlier.
To permit the General Counsel to resurrect either
withdrawn or dismissed charges is inconsistent
with this principle and should be permitted only
where a respondent, in effect, forfeits its right to
such assurances by engaging in fraudulent conceal-
ment. We must, as the majority noted in Winer,
"restrike the balance established by Congress when
it added the proviso to Section 10(b)." 265 NLRB
at 1458.
Applying the above principles to the instant case,
we have concluded that the reinstatement of Case
11-CA-8748 relating to McCrea's September 1979
suspensions outside the limitations period cannot be
permitted. We find no fraudulent concealment in
this case which would warrant our extending the
limitations proviso. In this regard, we note that the
General Counsel has never asserted or shown any
fraudulent concealment of operative facts relating
to McCrea's suspensions. At best, it appears that
the General Counsel reviewed the evidence on
hand pertaining to the suspensions in light of the
subsequent discharge of McCrea and reconsidered
the earlier dismissal on that basis.
Considering the above, 9 we find that the 10(b)
period expired in March 1980, 6 months after
McCrea's suspensions, and that the consolidated
complaint allegations concerning them must be dis-
missed.19
7 Member Dennis notes that the Casehandling Manual, Sec 101203,
provides that a charging party should be given the opportunity to with-
draw a charge before it is dismissed Whether the charging party avails
himself of such an opportunity should not determine whether the charge
can be resurrected thereafter
8 This is particularly true because "the Board's General Counsel has
unreviewable discretion to refuse to institute an unfair labor practice
complaint" Vaca v Sipes, 386 US 171, 182 (1967)
9 In view of the manner in which this case was litigated and briefed,
Member Dennis finds it unnecessary to pass on the question whether the
charge the Union filed 9 November 1979 in Case 11-CA-8747 (alleging
that employee Robinson was unlawfully laid off) might have supported
the McCrea suspension allegations under a "closely related" theory See
NLRB v Dinion Coil Go, 201 F 2d 484, 491 (2d Or 1952)
1 ° In light of this conclusion, we find it unnecessary to pass on the
judge's conclusion that McCrea's suspensions were unlawful Our disposi-
tion of McCrea's suspensions, however, does not detract from our gener-
al agreement with the judge's finding that the evidence concerning
Continued
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Contrary to the judge, and for the reasons set
forth below, we find that the Respondent did not
violate the Act by discharging employee Larry
Hampton on 18 March 1980.
The pertinent credited facts are as follows:
Hampton commenced working for the Respondent
in 1977, and his job required lifting and pulling
units weighing up to 40 pounds. His activities in
support of the Union began in August or Septem-
ber 1978, and the Respondent admitted that it had
observed Hampton engaging in these activities. Ad-
ditionally, Hampton testified at an earlier Board
hearing held between October and November 1979.
On 25 January 1980 Hampton sustained a back
injury while working. He continued to perform his
assigned duties for approximately 30 minutes and
then requested medical attention because he began
to experience pain. Later that day, an examination
by Dr. John C. Whitley Jr. revealed tenderness and
a muscle spasm in Hampton's lower back. As a
result, Whitley prescribed muscle relaxants and
pain medication and recommended that Hampton
perform only light work duty for 5 days. Hampton
returned to work and was instructed by Supervisor
Creech to return to his usual job. When Hampton
protested on the ground that Dr. Whitley had rec-
ommended that he be restricted to light duty, As-
sistant Plant Manager Stewart demanded that he
return to the doctor's office for a written work re-
striction. Hampton apparently did so, and then re-
turned to the plant where he commenced perform-
ing light duties.
On 30 January 1980 Hampton again complained
to Dr. Whitley of pain and was given another anal-
gesic. On 4 February 1980 Dr. Whitley's diagnosis
of Hampton continued to be back strain, minor
contusion, and minor spasm. He therefore referred
Hampton to an orthopedic surgeon, Dr. Harry L.
Pearce, who, on 8 February 1980, diagnosed
Hampton's condition as acute dorsal lumbar back
strain or a pulled back muscle. He prescribed pain
medication, rest, a back brace (which Hampton
thereafter wore), and light duty. Dr. Whitley ex-
amined Hampton for the last time on 11 February
1980 and, although he was of the opinion that
Hampton could return to full work duty, he de-
ferred to Dr. Pearce's recommendation for light
duty as being within the latter's area of expertise.
On 15 February 1980 Dr. Pearce again examined
Hampton for pain and prescribed anti-inflammatory
medicine. Hampton complained to Dr. Pearce of
intermittent discomfort on 17 March 1980, but Dr.
Pearce concluded that the healing process had
McCrea's work record for the period in question was Inadequate to rebut
the General Counsel's prima facie showing of discrimination toward
McCrea
been completed, although he acknowledged that
lifting and bending might aggravate the existing
injury. Additionally, on that day, Dr. Pearce gave
Hampton a "certificate" that he was able to return
to work with no limitations. Dr. Pearce testified
that he frequently counsels patients against pro-
longed light duty since there is an abundance of
healthy applicants for employment.
When Hampton returned to work on 17 March
1980, he complained to two supervisors of back
pain. Nevertheless, based on the certificate issued
by Dr. Pearce, Supervisor Creech ordered Hamp-
ton to return to his regular job, which he apparent-
ly did for the balance of that workday.
Hampton returned to work on the following day
and requested more medical attention because of
back pain. Later that day, Plant Manager Frank
Ducate was advised that Hampton was complain-
ing that he could not or would not perform his
regular job because of back pain and that he had
requested more medical attention for the problem.
Ducate then prepared a permanent layoff notice for
Hampton because of "inability or refusal to do the
work." When Hampton received the layoff notice,
he protested that he was not refusing to do his
normal job, but that he was unable to perform his
regular job at that time because his back hurt. In a
letter dated 19 March 1980," Dr. Pearce, in re-
sponse to a request from the Respondent, outlined
his diagnosis of Hampton's condition and conclud-
ed that Hampton was ready to return to work with
the help of aspirin, if needed. Approximately 3
weeks later, the Respondent received a letter from
Dr. Whitley which noted that his last examination
of Hampton had failed to reveal any objective pa-
thology and that he had encouraged Hampton to
return to work.
The judge found that the facts established that
the Respondent viewed Hampton's injury as an op-
portunity to get rid of a union protagonist. In so
doing, the judge rejected the Respondent's reason
for Hampton's discharge—that he "could not or
would not work." Thus, the judge noted that, al-
though Hampton could not engage in a full duty
job at the time of his discharge, he was capable of
engaging in other lighter work which was then
available. The judge found that the Respondent's
failure to permit Hampton to continue performing
such light duties constituted evidence of unlawful
motivation. The judge also found no credited evi-
dence to support the Respondent's contention that
ii The judge Inadvertently referred to "March 19, 1979," rather than
"March 19, 1980," as the date of Dr Pearce's letter to the Respondent
The judge further inadvertently referred to "April 17" rather than
"March 17" as the date that Dr Pearce told the Respondent that Hamp-
ton had complained to him of back pain
DUCANE HEATING CORP. 1393
Hampton would not work since that would essen-
tially involve a charge that Hampton was malinger-
ing. In this regard, the judge found that the Re-
spondent did not have a good-faith belief that
Hampton was malingering and that, moreover, the
evidence established that Hampton had, in fact,
sustained an injury and that he had, in fact, en-
countered a muscular spasm as a result. Based on
the foregoing, the judge concluded that the Re-
spondent discharged Hampton because of his union
activities and because of his testimony in the prior
Board proceeding.
Contrary to the judge, we conclude that Hamp-
ton's physical condition was relied on by the Re-
spondent in deciding to discharge him. It is undis-
puted that an integral part of Hampton's job re-
quired lifting and pulling units weighing up to 40
pounds. It is further undisputed that, immediately
after Hampton had sustained the injury to his back
on 25 January 1980, the Respondent created a light
duty job for him based on his doctor's recommen-
dation that he perform such work for 5 days.
Thereafter, the Respondent, again on the advice of
Hampton's doctor, extended his light duty work
until 17 March 1980, when it received medical cer-
tification that Hampton was able to return to his
regular job duties without limitations. Hampton ad-
mitted, and the judge found, that, even after his
doctor had authorized him to perform his regular
job duties, he remained in pain and felt unable to
fulfill those duties. It was only at this point that the
Respondent discharged him. Thus, as it is beyond
dispute that Hampton "could not" do the work he
was assigned, and as we are satisfied that this was
the Respondent's reason for discharging Hampton,
we find no violation in the discharge.
Unlike the judge, we fmd no basis for conclud-
ing that the Respondent's failure to permit Hamp-
ton to remain on light duty constituted evidence of
unlawful motivation since) under these circum-
stances, the Respondent as neither under a duty
to create a permanent light duty position to accom-
modate Hampton's physical limitation nor under a
duty to employ Hampton, who admitted that he
could not fulfill the requirements of his position.
Further, the General Counsel's contention and the
judge's finding that the Respondent was motivated
by antipathy toward Hampton's protected activities
is undercut by the fact that the Respondent, al-
though under no obligation to do so, created ap-
proximately 7 weeks of special light duty work for
Hampton during his medically documented inca-
pacitation. Moreover, the Respondent's decision to
discharge Hampton appears to be consistent with
its past practice since the record contains evidence
that the Respondent had discharged another em-
ployee for refusal or inability to work after a
doctor had released him to perform such work. In
light of the above, we shall dismiss that portion of
the complaint which alleges that Hampton's dis-
charge was violative of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ducane Heating Corporation, Blackville,
South Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
"(a) Discouraging membership in International
Union of Electrical, Radio and Machine Workers,
AFL-CIO, or any other labor organization, by un-
lawfully discharging any of its employees, or by
discriminating against them in any other manner
with respect to their hire or tenure of employment,
in violation of Section 8(a)(3) of the Act."
2. Substitute the following for paragraph 2(a).
"(a) Offer Randolph McCrea and Betty G. Rob-
inson 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 make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision.
Remove from its files any references to the unlaw-
ful discharges and notify the employees in writing
that this has been done and that the discharges will
not be used against them, in any way."
3. Substitute the attached notice for that of the
administrative law judge.
12 As indicated above, the judge rejected the Respondent's alternative
contention that Hampton was malingering and thus "would not" work.
He further rejected the Respondent's claims that it had a good-faith belief
that Hampton was malingering. We find it unnecessary to pass on these
findings or the case law cited in support of them since we have found
that, in fact, Hampton could not do his work and that the Respondent
relied on this fact in letting him go. Thus, no violation of the Act has
been made out in this proceeding.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Inter-
national Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organiza-
tion, by unlawfully discharging any employees, or
by discriminating against them in any other manner
with respect to their hire or tenure of employment.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they have given
testimony under the National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Randolph McCrea and Betty G.
Robinson 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 WILL make them whole
for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings,
plus interest.
WE WILL notify Randolph McCrea and Betty G.
Robinson that we have removed from our files any
references to their discharges and that the dis-
charges will not be used against them in any way.
DUCANE HEATING CORPORATION
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charges in Cases 11-CA-8747 and 11-CA-8748
were filed on November 9, 1979, by the International
Union of Electrical, Radio and Machine Workers, AFL-
CIO (the Union). The charges in Cases 11-CA-9044 and
11-CA-9248 were filed by the Union on April 3 and
June 30, 1980, respectively. Complaints or consolidated
complaints issued on June 30, July 17, and August 6,
1980, alleging that Ducane Heating Corporation (Re-
spondent or the Company) suspended employee Ran-
dolph McCrea twice in September 1979; discharged em-
ployee Betty G. Robinson in November 1979, McCrea in
February 1980, and employee Larry Hampton in March
1980; and refused to recall Robinson in the first quarter
of 1980, because said employees joined and assisted the
Union and testified at a hearing before the National
Labor Relations Board (the Board), in violation of Sec-
tion 8(a)(1), (3), and (4) of the National Labor Relations
Act (the Act). A hearing was held before me on these
matters in Aiken, South Carolina, on February 17, 18,
and 19 and March 17, 18, and 19, 1981.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
a brief by the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a South Carolina corporation with a
plant located at Blackville, South Carolina, where it is
engaged in the manufacture and sale of heating equip-
ment During the 12-month period preceding issuance of
the complaint on June 30, 1980, Respondent received
goods and materials at its Blackville, South Carolina
plant valued in excess of $50,000, directly from points
outside the State of South Carolina. Respondent is an
employer engaged in commerce within the meaning of
Section 2(5) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Prior Unfair Labor Practices
On January 13, 1981, the Board issued its Decision and
Order in Ducane Heating Corp., 254 NLRB 112 (1981),
wherein it affirmed the findings of an administrative law
judge that Respondent had violated Section 8(a)(1) of the
Act since October 1978 by various acts of interference
with its employees' Section 7 rights, and had also violat-
ed Section 8(a)(3) and (1) in December 1978 by discri-
minatorily discharging one employee, suspending an-
other, and issuing a written warning and a threat of dis-
charge to employee Randolph McCrea, one of the al-
leged discriminatees in this proceeding.
As more fully explained in the prior decision, the
Union began an organizational campaign in October
1978, and unfair labor practice charges were filed in
early 1979, leading to a hearing before the administrative
law judge from October 30 through November 3, 1979.
Pursuant to a Stipulation for Certification Upon Consent
Election, an election was held on March 22, 1979, which
the Union lost with six challenged ballots.'
As described in the former opinion, McCrea was one
of the leaders of the union movement, and testified at the
previous hearing. His testimony was credited over that
of Respondent's supervisors. Robinson also participated
in union activities and testified at the previous hearing.
She was called by the General Counsel as a rebuttal wit-
ness, and her testimony was also credited by the judge in
preference to that of Respondent's supervisors. Employ-
ee Larry Hampton testified without contradiction that he
began distributing union cards in August or September
' The representation case was not consolidated with the unfair labor
practice case
DUCANE HEATING CORP 1395
1978, and further averred that he also testified at the
former hearing. Noting the dates of the new alleged
unfair labor practices in this proceeding, it may be ob-
served that they allegedly took place at times in close
proximity to the dates of the former hearing (October 30
through November 3, 1979).
B. Randolph McCrea
1. Construction of residential gas furnaces
Respondent contends that McCrea was discharged be-
cause of substandard production, rather than for the rea-
sons alleged in the complaint Accordingly, an inquiry
into what McCrea was "producing" for the Company
becomes relevant. This consists of components of resi-
dential gas furnaces, in particular "heat exchanger units."
In essence, according to Supervisor William Creech,2
a gas furnace consists of a blower pushing air through
tubes in a heat exchanger unit, where the air is heated,
and from there flows into the air ducts. A flue box car-
ries away fumes, and a burner box holds the gas burners
The burners are placed within a component called a
"burner ring," which is actually rectangular in shape.
The burner ring is composed of metal pieces called
"fillers top and bottom," and "fillers left and right,"
which are assembled by welding. According to Creech,
the completed burner ring is affixed to the bottom of the
heat exchanger unit by a combination of hammering and
"tacking," or arc welding. Thereafter, the seams formed
by the juncture of the burner ring and the heat exchang-
er unit are sealed by "seam welding" (R. Exhs. 14-20).
There is little uniformity among the employees' de-
scription of these operations. Thus, Creech testified that
employees who "worked on burner rings" would var-
iously report work on "fillers," or on "left and right," or
"tops and bottoms," or burner rings, all referring to the
function of placing the burner ring onto the heat ex-
changer unit. In addition, the next step of seam welding
is also referred to by employees in a variety of terms, ac-
cording to both Creech, McCrea, and Respondent's Ex-
hibit 61. McCrea called seam welding "Left & Right-
Top & Bottom," or "L&R-T&B," referring to compo-
nents of the burner ring welded to the heat exchanger
unit.
Whatever the nomenclature, Creech and McCrea
agree that the function of placing a burner ring onto a
heat exchanger unit is a different operation from the next
function of welding it to the unit, and that both functions
are normally performed by different individuals. Em-
ployee David L. Davis said that these were different op-
erations, but that he, on occasion, had to perform both of
them. McCrea testified that the burner ring job was
more difficult than the welding position, testimony
which was corroborated by leadman Willie Ferguson, a
witness for Respondent. According to Ferguson, the
"hammering" part of the burner ring job makes it more
difficult. I credit this consistent testimony, and find that
the placing of burner rings on the heat exchanger unit
was more difficult than the seam welding job Other
jobs, according to the evidence, included welding and
placing flue boxes, repairing leaks, straightening units,
"tying ends," and grinding corners
Employees did not normally have equal proficiency on
all jobs, and McCrea credibly testified that the Compa-
ny's practice was to assign employees to the jobs which
they could do best.
2. McCrea's early work history
McCrea was hired in December 1975, and worked in
the oil welding department under Assistant Plant Manag-
er Billie Joe Stewart. 3 He received regular advances and
pay raises, and Respondent had no complaints about him
at that time, according to Stewart.
McCrea later transferred to the gas welding depart-
ment, and began as a seam welder, a job at which he was
proficient. He attempted to learn other jobs in order to
increase his pay. In late 1977 McCrea asked other em-
ployees to teach him how to put on burner rings. Creech
saw this, and told McCrea that he did "beautiful work,"
was not fast enough, but would pick up speed.
McCrea testified that he did a variety of jobs in the
gas welding department, but was not assigned to do
burner rings until the last week of August 1979. Creech,
however, testified that McCrea was assigned "to weld
burner rings" for an "accumulated" period of 3-4
months prior to August 1979.
The issue in this dispute is whether McCrea had prior
experience in the job or, rather, was suspended on Sep-
tember 7 after only about 10 days in a difficult job which
was new to him. Creech was a contradictory and unreli-
able witness, and his testimony on this subject literally
describes seam welding rather than burner rings. Those
of Respondent's business records which are in evidence
do not support its position that McCrea was assigned to
burner rings prior to August 1979 and I credit McCrea
on this issue. Although he had some experience in burner
rings prior to August 1979 and, indeed, was once seen
doing this in 1978 by employee David L Davis, this rep-
resented McCrea's attempts to learn from other employ-
ees and did not constitute work assignments
Respondent had a practice of making "special units,"
i.e., components that were as nearly perfect as possible,
for promotional purposes. It used its best employees for
this purpose, according to Creech McCrea testified that,
beginning in late 1977 or early 1978, Supervisor Creech
and leadman Ferguson asked him to do welding on spe-
cial units. Supervisor Creech, leadman Willie Ferguson,
and employee Bronson Bell denied this. However, Odell
Millhouse, an employee of Respondent at the time he tes-
tified, stated that he saw McCrea doing special units in
1979, and employee David L. Davis testified that he saw
this in 1980. Creech and Ferguson were not disinterested
witnesses, and Bell could not have known everything
McCrea was doing. I credit the testimony of McCrea,
Millhouse, and Davis, and find that McCrea was asked
to do welding on "special units."

2 The pleadings establish and I find that Creech was an agent of Re- 3 The pleadings establish and I find that Stewart was an agent of Re-

spondent and a supervisor within the meaning of Sec 2(11) of the Act spondent and a supervisor within the meaning of Sec 2(11) of the Act
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 The union campaign and Respondent's discipline
of McCrea
(a) The First Two Warnings It was at about the time of
his transfer or shortly thereafter that McCrea began his
organizational work on behalf of the Union, as described
in the prior decision. On December 1, 1978, Respondent
issued a written warning to McCrea for allegedly having
told another employee to stop work and attend a meet-
ing without permission The warning threatened McCrea
with discharge upon repetition of such conduct, was
characterized by the judge in the last proceeding as "ex-
cessively harsh," and was found to be discriminatory dis-
cipline in violation of Section 8(a)(3) and (1). Ducane
Heating Corp, 254 NLRB at 122-123, 130.
About 5 months later, on April 24, 1979, Respondent
issued McCrea another warning reading as follows.
This is to inform you that an official warning or
discharge notice has been given to you for sub-
standard production.
This warning is being given to you concerning
your substandard quantity work
We are confident that your returning late from
breaks and lunch could be one of the reasons for
your production being lower than that of your co-
workers
If your production does not pick up and remain
up, you will be forcing us to take further discipli-
nary action.
The warning is signed by Supervisor William Creech
(G.C. Exh. 5). Employee David L. Davis credibly testi-
fied that McCrea was the only employee to receive a
written warning for low production.
McCrea was given this warning by Assistant Plant
Manager Billie Joe Stewart in the presence of Creech.
According to McCrea, he told Stewart that Creech had
told him to do "as many units as [he] could," and asked
Stewart to give him, in writing, a daily quota of produc-
tion he was expected to meet. Stewart responded with a
query, asking whether it was "too much to ask" McCrea
to do as many as he could, if no more than "one unit"
per day. Creech admitted that he did not tell McCrea
how to improve his production
McCrea, dissatisfied, asked Creech for permission to
speak with Vice President John Ducate Jr. 4 but was told
that Ducate was too busy, and that McCrea should take
it to his "Union organizer." Creech asserted that another
employee was given a warning for low production on
the same day. However, Creech also testified that
McCrea was working on burner rings in April 1979, tes-
timony which is contradicted by Respondent's records. I
credit McCrea, and do not credit Creech.
(b) McCrea 'is' Transfer to Burner Rings, Two Suspensions
and Discharge: McCrea testified that he was assigned "to
do burner rings" in the last week of August 1979. Super-
visor Creech acknowledged that he assigned McCrea to
the new job, but could not remember the date. I credit
McCrea's testimony.
4 The pleadings establish and I find that Ducate was an agent of Re-
spondent and a supervisor within the meaning of Sec 2(11) of the Act
On September 7, 1979, McCrea was given a wntten 3-
day disciplinary suspension, which, after a beginning sen-
tence identical to the warning in April, continues as fol-
lows:
After receiving a warning on 4/25/79, your pro-
duction did show a slight increase for a few weeks
thereafter. However, after reviewing your daily
production reports, we found your productivity far
below department standards. In an effort to avoid
any further disciplinary action, I moved you to a
job requiring less skill. Even though you had previ-
ous experience on this job, we allowed you approxi-
mately two weeks for retraining.
Not only is your production far below your co-
workers, two of these co-workers are complaining
that while each one of them is producing over 200
units, you are producing only 80 to 90 units per
day.
Therefore, you leave us no alternative but to
issue this 3-day disciplinary layoff which is effective
from 9/10/79 through 9/12/79. To avoid any fur-
ther disciplinary action, when returning on 9/13/79,
you will be expected to bring your production up to
department standards and remain there.
This document is also signed by Creech (G.C. Exh. 6).
McCrea had a conversation with Assistant Plant Man-
ager Billie Joe Stewart that day in the latter's office.
McCrea testified that he requested but was denied the
presence first of a coworker, and then of a union orga-
nizer. Stewart denied that McCrea made this request; I
credit McCrea. Stewart told him that the Company did
not recognize "Union men." McCrea asked for permis-
sion to see General Manager Frank Ducate, but this was
denied.
Shortly after this suspension, Creech asked McCrea
whether he was willing to have leadman Willie Ferguson
show McCrea how to increase his speed, and McCrea
agreed. Ferguson then came to McCrea's booth, and a
dispute arose as to which employee was more produc-
tive. According to McCrea, Ferguson challenged him to
a test to see which could put on 10 burner rings more
rapidly. According to Creech and Ferguson, McCrea
asked for a timestudy.
However initiated, McCrea, Ferguson, and another
employee, David L. James, had a "10-burner-ring race."
James finished first. McCrea testified that Ferguson was
doing his fourth burner ring when McCrea had reached
his fifth ring, and that Ferguson had stopped to talk to
someone McCrea did not observe Ferguson again until
he had almost finished his 8th burner ring, at which time
Ferguson said he had finished all 10. "No way," McCrea
told Ferguson, and said that he must have done some-
thing with his burner rings. Ferguson insisted that he fin-
ished all 10 himself, before McCrea finished.5
5 James was not called as a witness The General Counsel asserts that
he tried without success to reach James, and asks for an adverse infer-
ence from the fact that Respondent did not call James The General
Counsel contended that, if called, James would have testified that he did
some of Ferguson's burner nngs and attempted to elicit testimony from
McCrea as to what James told the former I sustained Respondent's ob-
jection that this would have constituted hearsay
DUCANE HEATING CORP 1397
Respondent introduced various "documentations" of
alleged action which it took between September 7 and
28, the dates of McCrea's two suspensions Thus, in as-
signing Ferguson to help McCrea, Creech noted "a
slight improvement" in McCrea's production on Septem-
ber 19 (R. Exh. 36). The next day, in analysis of the
timestudy, Creech concluded that McCrea did have the
ability to meet production standards, and "tried [his] best
to explain to Randy that the disappointing part of my job
is when you know an employee has the ability and skill
to do his job, but will not apply himself' (R. Exh. 37).
The next day, Creech wrote, employee David James
complained to him that McCrea was not doing his "fair
share" (R Exh. 38). Respondent thus took the position
that the timestudy showed that McCrea could produce
adequate quantities of work, but that he was not utilizing
his ability.
On September 28, 1979, Creech signed another warn-
ing which, after the same introduction as the prior warn-
ings, continues as follows:
Since your last warning on 9/7/79 in a sincere
effort to avoid further disciplinary action, we
placed a program into effect to help you pick up
your production to departmental standards.
1. We gave you additional training by the Lead-
man to make sure you knew every aspect of the job
and to see where you were having problems, if any.
2. You and Ferguson collectivel y decided to time
study the job. The time study included you, Fergu-
son, and David James. The results of the study indi-
cate that you could easily do production of 200+
units in eight hours with ample lime for rest and
delay.
3. You received personal assistance from me to
help you develop your technique and numerous
conversations in an effort to try to motivate you.
It is evident that through the time study that you
have the ability, when applied correctly, to perform
to standards.
Because of the seriousness of this problem and
your failure to respond to our help, you leave us no
alternative but to enforce a 5-day suspension [G.C.
Exh 7; R. Exh. 39].
McCrea had a conversation with Billie Joe Stewart
that day in which he requested but was denied the pres-
ence of a coworker. Stewart told him that a study
showed that he could do 200 units daily, and that Stew-
art had no alternative to issuance of a 5-day suspension.
McCrea requested permission to see General Manager
Frank Ducate, but this request was denied.
McCrea credibly testified that he had no further con-
versation with any supervisor about his production until
February 29, 1980, when Creech discharged him at the
end of the day, stating merely that he had already been
suspended twice. Creech gave him another written
notice (G.C. Exh. 8) and his final check. McCrea walked
out, noticing Billie Joe Stewart "peeping around the
corner." Stewart testified that he did not meet with
McCrea on the day of the discharge. Creech testified ini-
tially that he and Stewart had a conversation with
McCrea in Stewart's office, but reversed himself on
cross-examination I credit McCrea and Stewart that
there was no such meeting.
Creech testified that McCrea was discharged because
of low overall production, then vacillated between this
position and the contention that the reason was low
burner ring production, and finally admitted that he did
not know the reason without his records.
4. Statistical analysis of McCrea's alleged low
production
(a) Description of the Evidence and Contentions of the
Parties . The parties engaged in extensive argument
during the hearing as to the means of proving or dis-
proving that McCrea was guilty of low production. At
the outset, it must be acknowledged that the relevance of
all this evidence is questionable, since Supervisor Creech
admitted at the hearing that Respondent had no produc-
tion requirements, and that "it is more or less what a
man is capable of doing."
Nonetheless, the General Counsel moved to admit two
statistical studies, one concerning McCrea's production,
and the other concerning production of other employees.
Although these summaries purported to be derived from
Company documents in Respondent's possession which
the General Counsel had subpoenaed, or from copies of
such documents made by employees who had submitted
the originals to the company, Respondent opposed their
introduction. The parties agreed to the following proce-
dure: Each would be afforded an opportunity to submit
statistical summaries with supporting data and copies to
the other parties, after the close of the hearing but prior
to the due date for briefs, whereupon the summaries and
data would be received in evidence.
The General Counsel, having withdrawn the summa-
ries originally submitted at the hearing prior to this ar-
rangement, filed a posthearing motion submitting Gener-
al Counsel's Exhibits 13 and 14 with supporting data,
while Respondent filed a "Submission of Post-Hearing
Evidence" with supporting data. In accordance with the
aforesaid agreement at the hearing, these documents are
hereby received as General Counsel's Exhibits 13 and 14,
and Respondent's Exhibit 61, respectively. 6 Comparison
of the data on these exhibits shows that they are substan-
tially consistent, although Respondent's exhibit has more
production reports of employees other than McCrea.
The General Counsel argues that his exhibits show
that "while McCrea's production was somewhat less
than that of other welders on the burner ring operation,
his production on seams was representative with the
output of other welders in the department." Moreover,
in the month before his discharge, McCrea's performance
was equivalent overall to that of other employees, ac-
cording to the General Counsel.
Respondent offers no opinion as to what its statistics
show. Both the General Counsel's and Respondent's ex-
hibits consist of summaries of daily production reports
6 In the absence of any exhibit number proposed by Respondent, its
posthearmg exhibit is given the number next in order Respondent also
submitted, at the hearing, an actual heat exchanger unit, which was re-
ceived
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared by employees. There is no evidence that the
quantities shown on the reports were verified by man-
agement. Creech testified that various products were not
subject to production requirements, but some of the
products he named appear on the production reports.
The Company's exhibit, "Compilation of Ducane Em-
ployee Production Reports," states in part as follows:
"The jobs, welding seams, seams, left right top and
bottom, burner rings, doing burner rings, putting on
burner rings, tacking burner rings, ends and tying ends
are approximately equal in terms of numbers of units
produced by an employee in an eight hour day Many of
the terms used by the employees on the production re-
ports are aberration(s) of the current description of the
job as defined by the company and are different names
for the same job" (R. Exh. 61)
The first sentence quoted above appears to say that
each employee produces the same number of units no
matter which job he is performing. If so, this is equating
apples with oranges and is demonstrably false.7
(b) Statistical Evidence Pertaining to the April 24 Warn-
ing, and the September 7 Warning and Suspension: Re-
spondent issued a warning to McCrea on April 24, 1979,
for "substandard production," as described above No
such conclusion can be derived from Respondent's pro-
duction statistics for that month. The only conclusions
which may be derived, assuming that two other employ-
ees were doing the same work as McCrea but were
giving it a different name, are that (1) Respondent was
keeping more production figures on McCrea than it was
on other employees, and (2) such comparative figures as
are available show that McCrea was in about the mid-
range of production.°
McCrea's production increased slightly in May, which
is acknowledged in Respondent's September 7 warning
and disciplinary suspension (G.C. Exh. 6). However, it is
difficult to find justification for Respondent's statement,
in its September 7 warning, that McCrea's transfer to
7 Taking the first employee other than McCrea whose name appears
on R Exh 61, "E Moorer," the Company's data shows that Moorer pro-
duced, during 8 hours, 205 "fillers" on April 2, 1979, 176 "fillers" on
April 3, 142 "fillers" on Apnl 11, 120 "flue boxes" on April 15, 142
"fillers" on April 16, 202 "fillers" on April 20, 199 "fillers" on April 27, a
combined total of 157 "fillers" and "burner rings" on August 16, etc The
figures of other employees show similar variation in production depend-
ing upon the type of product being made, and, indeed, some variation on
different days with the same employee making the same product As
noted above, the "heat exchanger units" come in different sizes, and there
is evidence in the record that it takes more time to make a component for
the sizes In addition, the not infrequent combination of different Jobs the
same day for the same employee makes comparisons unreliable
8 McCrea listed his work as "L&R-T&B" (left and right-top and
bottom), the only such listing in the records, by which, I conclude, he
meant the seam welding of burner rings after their placement on the heat
exchanger unit The burner ring, which is seam welded to the heat ex-
changer unit, consists of fillers "left and right," and "top and bottom" R
Exh 61 shows only two other job descriptions in April 1979 which
might mean the same thing ("fillers" (E Moorer), and "filler strips" (G
Garrick)) The exhibit shows the following April 1979 daily entries for
"L&R-T&B" work by McCrea through April 24, the day of the warn-
ing 142, 125, 139, 128, 113, 112, 115, 105, 130, 143, 143, 140, and 155
For the same period, the exhibit shows the following "filler" entries for
Moorer 205, 176, 142, 142, and 202 For Garnck's "filler strip" work,
Respondent had only two entries for the same period, 97 and 144 The
variant of larger and smaller units is shown on the exhibit, but is not re-
flected in this discussion, as it would involve extended statistical analysis
not warranted for the purposes of this decision
burner rings in late August was caused by "review" of
his production reports showing him "far below depart-
ment standards." The reason is the fact that the Compa-
ny's exhibit shows no figures whatever for June and July
1979 for McCrea or any other employee The General
Counsel's exhibits show that McCrea continued about
the same pace, and, as before, that there were other em-
ployees who produced less units, doing work which may
possibly have been the same as McCrea's.°
The General Counsel's statistics, like Respondent's, are
derived from employee production reports However, if
Respondent did not keep the production records submit-
ted to it by its employees for these 2 months, then it ob-
viously had nothing to "review" for this period.
Respondent's statistics start again in August 1979 and,
as previously described, McCrea was assigned to burner
rings in the last week of August. As noted, Respondent's
September 7 warning and suspension allege that two of
McCrea's coworkers had complained to the Company
that McCrea was only producing 80 to 90 units daily
while they were producing over 200.
Respondent called former employee Lee Brown, who
testified that McCrea frequently left his work station,
and that Brown told Creech that McCrea had said that
he did not have to work as hard as Brown. The latter
further averred that he told Creech that McCrea, then
working on burner rings, "wasn't doing shit." Brown
could not recall when he said this to Creech, but ap-
peared to testify that he said it "not one time but many
times . . ." 1 ° Brown further testified that he averaged
250-255 burner rings daily for a size "60" heat exchanger
(a small size), about 230-235 daily for a size "80," and
215-220 daily for the larger size "100." Respondent's sta-
tistics show that Brown exaggerated his own production,
and that he never averaged over 200 units daily for any
period of time." I do not credit his testimony.
For the same period of August 1 through September 7,
four other employees had burner ring averages lower
° For July 1979, G C Exh 14 shows one entry of 94 for G Garrick,
for "welding," and entries of 96 and 92 for "S W ( 9)," for "seam weld-
ing," figures below the average for McCrea
10 This is not entirely clear, as the witness' testimony was cut off
" From August 1, 1979, through September 7 (the date of McCrea's
first suspension) Brown had daily burner ring production figures of 178,
152, 169, 189, 150, 126, 125, 211, 191, 164, 154, 187, 178, 140, 212, 206,
212, 179, and 142 (R Exh 61), a total of 3593 and an average of about
180 daily This data Includes only days when Brown's daily work was
entirely or almost entirely devoted to burner ring production Consider-
ation of other work during this period would bring down his averages,
e g, 106 "filler welding" (seam welding9) on September 6, and 63 "phil-
hers" and 63 burner rings on September 7 (R Exh 61) Brown's lower
production, when doing work easier than burner rings, which was the
only work McCrea was doing during the same period, remains unex-
plained
For the period from September 8 through 28 (the date of McCrea's
second suspension), Brown had only 3 days of exclusively burner ring
production-174, 147, and 112, a drop in average production to about
144 The other days, combinations of burner ring and easier work, show
the same pattern of substantially less than 200 units daily
DUCANE HEATING CORP 1399
than Brown's, about 169,12 166, 12 148, 14 and 137.15
McCrea's first burner ring production was on August 27,
but it was combined with other work on that and the fol-
lowing day.
Beginning on August 29 and continuing through Sep-
tember 7, McCrea had only 6 days of exclusively burner
ring work-85, 87, 80, 85, 91, and 106, an average of
about 89 with a pattern of increasing productivity 16 He
was then suspended for "low production"
As I have already found, McCrea's new burner ring
job was more difficult than that of his former seam weld-
ing job The statement in Respondent's September 7
warning, to the effect that burner rings was "a job re-
quiring less skill," is clearly false. Employee Odell Mill-
house testified that it took about 2 months for an em-
ployee to reach the standards or his fellow employees in
burner ring production, and Respondent s September dis-
ciplinary action against McCrea therefore occurred when
he was learning a new and more difficult job. According
to Millhouse, McCrea was the only employee so disci-
plined during this beginning 2-month period. I credit this
testimony.
(c) Statistical Evidence Between September 7 and
McCrea's Second Suspension on September 28 Respond-
ent's figures show that McCrea Increased his daily
burner ring average from 89 to about 116 during the
period between his two suspensions." The only other
employees with substantial numbers of burner ring days
were David James, with an average of about 158, 18 and
L Brown, previously noted. James had long experience
at burner rings Two other employees with isolated
burner ring days had averages of about 130 16
As set forth above, Respondent's "time study" took
place during this period. According to Respondent, it
showed that McCrea had the ability to produce "268
units per day," 68 over the "200 required" for a day (a
"requirement" stated for the first time in the record). Re-
spondent asserts that this proved that McCrea could do
the job, but would not do so. As previously noted, David
James was the "winner" of the timestudy which, accord-
ing to Respondent, showed that he could do "450 units"
per day, 250 over the "200 required." Creech told James
that he was "very pleased that he outdid anything we
ever expected on the job . . '' (R. Exh 37.)
McCrea's average production of 116 during this period
was about 43 percent of his capacity indicated by the
12 W Davis, daily production figures of 174, 150, 173, 198, 124, and
159 (both dated the same day but deemed to be different days), 129, 222,
and 191
13 S Banks, daily production figures of 125, 156, 153, 202, 129, 132,
138, and 145
14 E Moorer, daily production figures of 131, 155, 147, and 159
Moorer listed "burner rims" (burner rings), and had several days of com-
bined work, not included herein
15 G Garrick, daily production figures of 152 126, 164, 57, 134, 83
plus 6 seams, 88, 173, 167, and 112
18 R Exh 61
" For 8-hour days, McCrea had burner ring production of 113, 120,
105, 118, 120, 108, 115 plus 15 "L&R-T&B," and 129 plus 5 "L&R-
T&B "
18 James' daily production figures were 82, 170, 185, 170, 178, 166, and
160
18 0 Millhouse, with two entries of 102 and 157, respectively, and E
Moorer with one entry of 130
timestudy," and less than the "200 required" per day.
James' average of 158 was also less than the "200 re-
quired" daily, and was about 35 percent of James' capac-
ity as revealed by the timestudy. 21 Although James was
far more experienced than McCrea in burner rings, and
was the winner over leadman Ferguson as well as
McCrea in the timestudy, he was still deficient in actual
production according to Respondent's asserted 200-unit
daily quota, and was working at a less percentage of his
daily capacity than was McCrea. Nonetheless, James re-
ceived only lavish praise, while McCrea, who increased
his average, received a suspension.
(d) Statistical and Other Evidence Pertaining to
McCrea's Discharge on February 29, 1980: McCrea in-
jured his thumb with a hammer on October 17, 1979 Re-
spondent's figures from the time of his second suspension
on September 28 until his injury show that he increased
his burner ring production average to over 126 daily.22
The doctor put McCrea's hand in a splint and placed
him on light duty. Stewart told McCrea to go back to
seam welding, but McCrea could not put on a glove, and
was sent home His name next appears on the production
records on November 16, doing work other than burner
rings, and he continued doing different kinds of work
through the rest of 1979.33
McCrea and employee David L Davis testified that
Supervisor Creech held a meeting in January 1980, in
which he showed employees photographs of completed
units which were deficient. Creech said that he was not
going to lose his job for anybody, and that the quality of
the work would have to improve. He was not too much
concerned about production, and did not care if a man
put out only one unit per day, as long as it was of good
quality. Creech admitted that he probably told employ-
ees on more than one occasion that he did not care how
many units employees produced, as long as they worked
8 hours a day and produced work of good quality. Mill-
house testified that Stewart said substantially the same
thing at another time
McCrea returned to burner ring production on Janu-
ary 7, 1980, and in about the first week increased his
daily average to over 137. 24 He was then switched to
welding seams, on which he did well On his last 5 days
of employment, McCrea produced 200 "seams" on Feb-
ruary 25, 164 "seams" and 27 burner rings on February
26, 153 burner rings and 27 "seams" on February 27, 90
burner rings and 27 "seams" on February 28, and 130
burner rings on February 29. 25 Employee David L.
Davis testified that he saw McCrea doing special units in
January, and McCrea stated that he did so during his last
week of employment I credit this testimony
(e) Other Evidence of McCrea's Work Habits and Atti-
tude: Employee Bronson Bell said that McCrea once told
him that he did not have to work so hard. "That's why
25 116 divided by 268, McCrea's daily "capacity" (R Exh 37)
21 158 divided by James' daily "capacity" of 450 (R Exh 37)
22 Daily production figures of 101, 105, 125, 147, 151, and 130 (R
Exh 61)
23 G C Exh 13,R Exh 61
24 Daily production figures of 140, 144, 125, 145, 132, 138, and 140 (R
Exh 61)
25 R Exh 61
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we need a union," McCrea told him. As previously de-
scribed, Lee Brown alleged slack work habits on the part
of McCrea. The latter, on the other hand, testified that
his fellow employees never complained to him about low
production. On the contrary, they asked him why he
stayed in his booth so much. Employee Odell Millhouse
testified that McCrea was "the type who would stay in
his booth."
McCrea and Millhouse impressed me as more reliable
witnesses than Brown and Bell. In general, however, on
the issue of McCrea's work habits and productivity, I
attach less weight to this conflicting evidence, and great-
er weight to the production records.
5. Summary and analysis
Respondent's discipline of McCrea is a textbook study
in discrimination under Section 8(a)(3) and (4) of the
Act. The Board has already determined that Respondent
committed prior unfair labor practices manifesting
animus against the union campaign and its supporters, of
which the principal one was McCrea. The Board con-
cluded that Respondent's prior warning to McCrea and
threat of discharge were discriminatorily motivated. This
previously determined animus is a factor which must be
considered in assessing Respondent's subsequent disci-
pline of McCrea, and tends to establish that the latter,
like Respondent's former conduct, was unlawfully moti-
vated. J. P. Stevens & Co. v. NLRB, 638 F.2d 676 (4th
Cir. 1980), enfg. as modified 245 NLRB 198 (1979);
NLRB v. Clinton Packing Co., 468 F.2d 953 (8th Cir.
1972), enfg. as modified 191 NLRB 879 (1971).
Subsequent to his organizational activities which had
already incurred Respondent's ire, McCrea testified
against Respondent in the last Board hearing. His testi-
mony was one of the factors which resulted in a decision
adverse to Respondent—a fact which could only have
added to Respondent's animus
In April 1979, about 5 months after Respondent's un-
lawful warning and threat of discharge which were liti-
gated in the last hearing, Respondent issued another
"warning," this time for "substandard production." This
charge cannot be supported by any production figures
then available, because Respondent did not require uni-
form job descriptions in its employees' production re-
ports, did not verify the accuracy of those reports, and
had no established production quotas. McCrea was then
doing seam welding, although he, like other employees,
called it by another name. Such comparisons as can be
made suggest only the tentative conclusion that McCrea
was in about the midrange in production.
There can be no doubt of the quality of McCrea's
work—it was outstanding. There had been no complaints
about his work in the oil welding department. After his
transfer to the gas welding department, McCrea became
an exceptional seam welder, and was assigned to welding
on "special units," products required to be free of de-
fects, for promotional purposes. McCrea's excellent work
record constitutes evidence that his discipline was discn-
mmatonly motivated. Clark Manor Nursing Home Corp.,
254 NLRB 455 (1981); Boyer Ford Trucks, 254 NLRB
1389 (1981). His work record was considered to be ex-
cellent until he appeared at a Board hearing on behalf of
the Union. Dillon Stores, 241 NLRB 579 (1979).
Despite this record, Respondent issued a written warn-
ing to McCrea about his production—the only such
warning it had ever issued up to that date. The unique-
ness of this treatment of McCrea, as distinguished from
other employees, additionally suggests its pretextual
nature.
Respondent conceded in its September 7 warning and
suspension that McCrea's production improved in May
1979, but contended that "review" of his production
thereafter showed that it was "far below department
standards." Respondent submitted no figures for June or
July, warranting an inference either that it had none to
review, or that it believed that the figures would be ad-
verse to its cause. Respondent in fact did receive em-
ployee production reports for these months, since they
are covered by the General Counsel's statistics based on
copies of employee reports submitted by the Company.
These figures suggest that McCrea continued at about
the same pace in his seam welding job, and that there
were other employees producing less units of the same
work.
Respondent has a practice of assigning employees to
the work they do best. McCrea was an expert seam
welder, but was not good on the more demanding job of
burner rings. However, he was transferred to burner
rings in late August 1979, contrary to company practice.
In its September 7 warning, Respondent falsely stated
that the burner ring job was less demanding. Considered
in connection with later events, this transfer to more on-
erous work is evidence of discriminatory motivation on
the part of Respondent. Ward Products Corp., 243 NLRB
354 (1979).
After only 6 full days of burner ring production,
during which McCrea increased his daily output, Re-
spondent gave him a 3-day suspension for production
"below department standards," contrary to its established
policy of allowing 2 months for development of profi-
ciency in this work. When McCrea asked Assistant Plant
Manager Stewart for a written quota he was expected to
produce, Stewart refused, evasively asking McCrea
whether it was too much to produce only one unit per
day. Respondent's refusal to tell McCrea what he was
expected to produce, and suspending him again for fail-
ing to meet production, constitutes further evidence of
its arbitrary and discriminatory frame of mind.
Respondent conducted a so-called timestudy of the
production of McCrea and two other employees. Al-
though the "study" was conducted under circumstances
which cast doubt on its objectivity, Respondent pro-
fessed to discover from it that McCrea could meet an as-
serted "200-unit" daily quota, but lacked motivation to
do so. During the 3-week period after the first suspen-
sion, McCrea increased his production to the point
where he was producing a higher percentage of his own
capacity than was the winner of the timestudy. Both
were below the "200" daily quota—a fictional standard
newly invented by Respondent, which no employee
other than McCrea was required to meet. Although nei-
ther McCrea nor the winner of the timestudy met this
DUCANE HEATING CORP. 1401
standard, the latter received praise, while McCrea re-
ceived a 5-day suspension. This gross disparity in treat-
ment simply adds to the already abundant evidence of
Respondent's unlawful motivation. AMF, Inc. v. NLRB,
593 F.2d 972 (10th Cir. 1979), enfg. 228 NLRB 1406
(1977).
During the 2-3 weeks after his September 28 suspen-
sion, McCrea continued to add to his burner ring pro-
ductivity, so that he reached the lower range of more ex-
perienced producers of this product. He was then in-
jured, was off work, and was thereafter transferred to
other work for the balance of 1979.
McCrea returned to burner ring work in January 1980,
and quickly raised his production so that he reached the
low to middle range. He was then transferred to other
work, including seam welding of special units. He had an
outstanding last 5 days of work before his discharge, in-
cluding one "200-unit" day of seam welding. He was dis-
charged on February 29 for "substandard production,"
the only employee so disciplined. Magnesium Casting
Co., 250 NLRB 692 (1980).
The transparent falsity of Respondent's asserted reason
for twice suspending and then firing McCrea is further
demonstrated by the fact that two supervisors told em-
ployees in early 1980 that Respondent did not care about
production as long as quality was good, and by Supervi-
sor Creech's admission at the hearing that he did not
know whether McCrea was discharged for low burner
ring production or low overall production. As Creech
candidly testified, Respondent has no production require-
ments—"it is more or less what a man is capable of
doing." Respondent's vacillating, equivocal, and ulti-
mately false reason for McCrea's discipline shows that it
was engaged in "elaborate and contrived bureaucratic
exercises" to get rid of the leader of the union movement
and the principal witness against it in a previous Board
proceeding. Midwest Stock Exchange, 244 NLRB 1108,
1119 (1979); Town ci Country Supermarkets, 244 NLRB
303 (1979).
The overwhelming weight of the evidence establishes
that Respondent twice suspended McCrea in September
1979, and discharged him on February 29, 1980, because
of his union activities and sympathies and because he
gave testimony at a previous Board hearing. The Gener-
al Counsel has therefore established a strong prima facie
case that McCrea's discipline was unlawful, and Re-
spondent has not rebutted that case. Accordingly, I find
that Respondent's aforesaid conduct was violative of
Section 8(a)(1), (3), and (4) of the Act. Wright Line, 251
NLRB 1083 (1980).
C. Betty G Robinson
1. Employment history
Robinson was employed in June 1979 and worked at a
variety of jobs, as a welder and press braking machine
operator in the welding department, and as a shipping
clerk in the shipping department. She was working in the
latter job at the time of her layoff on November 7, 1979.
Like McCrea, she had been active in the union campaign
and had testified on behalf of the Union at the prior
Board hearing.
2. Supervisory interrogation of Robinson
Robinson testified that in March 1979 Shipping and
Receiving Supervisor Dennis Ducate 26 asked her, "What
is this that I hear about you being for the Union?" In re-
sponse, Robinson asked whether she could "afford" to be
for the Union, and Ducate answered that she could not
afford to do so. Robinson asked the identity of the
person who told Ducate that she favored the union
cause, and Ducate gave the name of another employee.
Ducate denied this conversation and asserted that Robin-
son said that people would be "crazy" to vote for the
Union, although Ducate also said that he did not know
whether Robinson was really against the Union. Robin-
son was the more believable witness, and I credit her tes-
timony. 2 7
Robinson described a second conversation with
Ducate in late March 1979, in which the supervisor, re-
ferring to the absence of another employee, said, "Yeah,
that is how we are going to get rid of the bunch of them,
all 166 of them, right, Betty?" (The tally of ballots in the
election on March 22 showed that 166 employees voted
for the Union. Ducane Heating Corp., supra, 254 NLRB
at 113.) According to Robinson, this statement was made
in the presence of another supervisor, Arnold Croft or
Ronnie Hutto. 28 According to her testimony, Robinson
asked Ducate who it was that said she was "one of the
166." Ducate, Croft, and Hutto denied any such conver-
sation. Robinson impressed me as the more truthful wit-
ness. In addition, the figure "166," being the exact
number that voted for the Union during the election, is a
corroborative detail adding verisimilitude to Robinson's
testimony, which I do not consider a likely invention on
her part. I credit Robinson's testimony.
3. The September 7 layoff and Robinson's
conversations with management
According to Plant Manager Frank Ducate, 29 Re-
spondent laid off about 90 employees on September 7,
1979, because of an alleged decline in customer orders.
Robinson was not included in this layoff but, being preg-
nant, was concerned about future layoffs. Accordingly,
she had a conversation about September 14 with Super-
visor Arnold Croft in which she asked about company
policy on layoffs, and whether there would be any more.
Croft replied that layoffs were by seniority, that he did
not know whether there would be any more, but that
Robinson and another employee would be the next lay-
offs if there were any.
Robinson testified that she asked Croft whether she
could meet with Plant Manager Frank Ducate. The
26 The pleadings establish and I find that Dennis Ducate was an agent
of Respondent and a supervisor within the meaning of Sec. 2(11) of the
Act.
22 Respondent objected that this incident took place outside any "rele-
vant period" herein, and the General Counsel responded that it was in-
tended to prove background animus, not an independent violation.
28 The pleadings establish and I find that Croft and Hutto were agents
of Respondent and supervisors within the meaning of Sec. 2(11) of the
Act
29 As in the cases of John Ducate Jr. and Dennis Ducate, the plead-
ings establish and I find that Frank Ducate was an agent of Respondent
and a supervisor within the meaning of Sec. 2(11) of the Act.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter agrees that he did have a conversation with Robin-
son and, although he places it about 1 week earlier than
Robinson, he stated that it took place after the Septem-
ber 7 layoff. Croft, on the other hand, denied that Robin-
son asked for a meeting with Ducate. In light of the ob-
vious fact that such a meeting did take place, I credit
Robinson's testimony that she asked for it, and do not
credit Croft on this difference. However, Croft did cor-
roborate Robinson's testimony about his description of
Respondent's layoff policy as governed by seniority, and
Robinson's concern with the possibility of her own
layoff.
Robinson's version of her conversation with Frank
Ducate is that it took place on the afternoon of the same
day that she spoke with Croft. Robinson asked about her
rights to maternity benefits, and whether she was going
to be laid off. Ducate replied that she would receive $60
weekly in insurance payments, and would not be laid off.
He advised that this would be a better policy than
"taking a layoff," since Robinson could automatically
return to work after 2 months on maternity leave. Robin-
son then went home and wrote Ducate a letter, thanking
him. He called her into the office after receiving it, and
asked whether she had written this "sweet letter." An
amiable conversation ensued, in which Ducate told Rob-
inson that he needed her in the shipping department, that
he had no one else to put back there, and that everything
was going to be "all right."
Ducate admitted one conversation with Robinson, and
averred that she merely asked whether there were going
to be any more layoffs, and whether she would be eligi-
ble for unemployment benefits and food stamps. He re-
plied that he did not know about future layoffs, and sup-
posed that she would be entitled to benefits. Ducate
denied that Robinson wrote him a letter, or that he had
another conversation with her about layoffs.
Robinson's version of what she described as her first
conversation is more likely than Ducate's. She had just
seen Supervisor Croft, to whom she had expressed con-
cern about the possibility of her own layoff, and her
right to maternity benefits. The supervisor had told her
that she and another employee would be the next to be
laid off. It is highly probable that Robinson expressed the
same concerns in her conversation the same day with
Plant Manager Ducate. According to the latter, howev-
er, Robinson talked only about layoffs in general and her
right to unemployment benefits, but did not specifically
ask about her own status in any forthcoming layoff nor
mention maternity benefits. This is highly unlikely, and I
credit Robinson's testimony as to the nature of her con-
cerns expressed to Ducate.
Ducate denied the statements attributed to him by
Robinson, assuring her of continued employment and
maternity benefits. As in his testimony about the begin-
ning of the conversation, Ducate's version is contrived
and unnatural. Robinson was a more believable witness,
and I credit her testimony. I also credit her account of
the letter she wrote Ducate, thanking him, and her
second conversation with him thereafter.
4. Robinson's testimony at the prior hearing
On November 3, 1979, Robinson appeared as a rebut-
tal witness for the General Counsel in the earlier pro-
ceeding, and her testimony was relied on by the adminis-
trative law judge in the latter's finding that an alleged
discriminatee had not been suspended for cause, contrary
to Respondent's witnesses. Ducane Heating Corp., supra,
254 NLRB at 126.
5. Robinson's "Permanent Layoff"
On the day that she returned to work after her testi-
mony at the hearing, according to Robinson, she was
called to the telephone by Supervisor Dennis Ducate.
She took the call, and an individual at the plant called
her "a very dirty person [for] testifying for the Union."
Robinson averred that she protested this call to Dennis
Ducate, who replied that it was a "personal problem."
Robinson testified that she asked Ducate to get this "har-
assment stopped," and told him that she would contact
the Labor Board if it were not stopped According to
Robinson, Dennis Ducate replied, "I know you will."
Dennis Ducate admitted knowing the individual identi-
fied by Robinson who, he testified, was employed by a
vending company at the plant canteen. However, Ducate
denied that Robinson ever protested any call she had re-
ceived from this individual. Ducate was not a reliable
witness, and I credit Robinson's testimony.
On November 7, 4 days after her testimony before the
Board, Robinson was laid off by Plant Manager Frank
Ducate. The latter told her and three other employees in
his office that they were being put on "permanent layoff
due to the economic situation in the country," and that
they should seek employment elsewhere. Frank Ducate
initially testified that 10 employees were laid off on No-
vember 7. Ducate also testified, however, that Robinson
and five other employees were all present in his office on
that date at the same time, when he read to them from a
layoff notice which had been posted on the bulletin
board.
Ducate further stated that six employees were laid off
on November 26, because of a reduction in customer
orders. All three layoffs—September 7 and November 7
and 26—were "permanent," according to Ducate.
6. Respondent's asserted reasons for Robinson's
layoff
a The seniority issue
(1) Summary of the Evidence: Respondent contends that
Robinson was laid off in accordance with plantwide se-
niority. Plant Manager Frank Ducate said that Robinson
had "less seniority than the next person" on a "seniority
list." He could not recall the name of the next person on
the list, but contended that he had submitted a copy of
same to the Board. However, the General Counsel repre-
sented that he had no such list, and Supervisor Arnold
Croft testified that he was not even aware of a seniority
list. Supervisor Dennis Ducate contended that the No-
vember 7 layoff was made on the basis of plantwide se-
niority, but testified that Robinson was not the least
DUCANE HEATING CORP. 1403
senior employee in the plant, thus contradicting Frank
Ducate.
Frank Ducate conceded that some employees were re-
called after layoff. Although they had been laid off ac-
cording to plantwide seniority, they were recalled pursu-
ant to a system of departmental seniority, according to
the plant manager. Robinson credibly testified that two
other employees, who had "started working" after she
did, were called back to work. One of these worked in
the shipping department, where Robinson was assigned
at the time of her layoff, and the other in the welding
department, where Robinson formerly worked.
(2) Analysis: Because of the undocumented and contra-
dictory nature of Respondent's evidence concerning the
existence of a seniority list and Robinson's placement on
it, Respondent has not established that Robinson was laid
off in accordance with any seniority system.
Assuming arguendo the truth of Frank Ducate's testi-
mony about layoff of employees according to plantwide
seniority, and recall according to departmental seniority,
such a system is fraught with potential for manipulation
by an employer to get rid of an undesirable employee.
Thus, an employer could transfer the latter to another
department, where he would be last in departmental se-
niority, implement a mass layoff, and then recall in ac-
cordance with departmental seniority. This may have
been the case with the shipping employee who was re-
called although he started working at the plant after
Robinson began. With respect to the welding department
employee who was also less senior than Robinson, the
employer's argument would be that Robinson was not
employed in that department at the time of layoff, and
therefore not entitled to recall.
This system in effect would grant the employer discre-
tion to select which employees shall continue to be em-
ployed. The Board has already approved of the conclu-
sion that "an employer's discretion as to who shall have
continuous service and who shall not is to enable an em-
ployer to pick and choose between employees, a result
totally inconsistent with the generally accepted purpose
of a seniority system." Ram Construction Co., 228 NLRB
769, 776 (1977).
The dubious nature of Respondent's double system of
seniority is further emphasized by the fact that, although
all layoffs were "permanent" according to Ducate, some
of the employees were recalled. To paraphrase Orwell's
Animal Farm, some of the permanent layoffs were appar-
ently more permanent than others.
Considering all these conclusions together—the fact
that Respondent has not established that Robinson was
initially laid off pursuant to a seniority system, the
double system of seniority with its potential for discrimi-
natory manipulation, and the recall of some "permanent-
ly" laid-off employees with less plantwide seniority than
Robinson—I find that Robinson was initially laid off, and
her layoff status was thereafter maintained, contrary to
any system of seniority. In fact, she was discharged. Don
Pizzolato, Inc., 249 NLRB 953, 957 (1980).
b. The declining business issue
(1) Respondent's Position: Plant Manager Frank Ducate
testified that the layoffs were caused by decline in cus-
tomers' orders. The Company went bankrupt in 1974,
and had permanent layoffs at that time, according to
Ducate. He feared that the Company might be facing
similar problems in late 1979, and planned permanent
layoffs to avoid them.
During the 1974 layoff, according to Ducate, the posi-
tion of shipping clerk was abolished as a separate job,
and was later reinstated. Betty Robinson held this posi-
tion in the fall of 1979. According to Dennis Ducate, it
consisted of typing packing slips and bills of lading, and
operating a teletype information service for customers.
Three employees in the shipping department were laid
off during the September 7, 1979 layoff, according to
Frank Ducate. The plant manager and Dennis Ducate
testified that they discussed the shipping clerk position
about 2 weeks before the November 7 layoff, and at that
time decided to have the personnel clerk perform the
shipping clerk's duties. The personnel clerk at that time
was, and still is, Donna Winstead. Respondent thus con-
tends that it made a decision to eliminate Robinson's job
about 2 weeks before the November 7 layoff. This is de-
scribed by Respondent's witnesses as "consolidation" of
the shipping clerk and personnel clerk positions. Since
the prior hearing began on October 30, and Robinson
testified on November 3, Respondent appears to be sug-
gesting that its decison to lay off Robinson was actually
made just before Robinson's testimony at the last hear-
ing. Robinson was not given any advance notice of this
decision, according to Dennis Ducate.
Respondent's witnesses testified that Donna Winstead
performed the shipping clerk functions about 2 hours
daily. There is no plan to reinstate the shipping clerk job
as a separate position, although Dennis Ducate said that
it now takes more than 2 hours to perform shipping clerk
functions.
(2) Analysis: The General Counsel argues that Re-
spondent's failure to call Donna Winstead casts doubt on
the testimony of Respondent's witnesses, and that I have
no choice but to fmd that her testimony would have
been adverse to Respondent's cause, if she had been
called. There is merit in this argument.3°
Respondent did not submit any documentary evidence
to support its contention that there was a decline in cus-
tomers' orders. The General Counsel asked Dennis
Ducate whether he could state the number of orders
either at the time of the layoff or the time of hearing,
and Ducate replied that he could not.
The search for documentary evidence pertaining to
Respondent's economic defense is not, however, entirely
in vain. As described above, Respondent submitted volu-
minous production records and a summary thereof in an
attempt to prove that Randolph McCrea had "substand-
ard production." Production records, of course, are not
customers' orders. However, there must be some rela-
tionship between the two if a company is to stay in busi-
ness. Absent special circumstances, no rational entrepre-
neur would increase his production while his daily sales
were declining. As a corollary, the fact that production
3° Alabaster Lime Co., 194 NLRB 1116, 1118 (1972); see authorities
cited in Hadbar, 211 NLRB 333, 337 fns. 3, 4 (1974).
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is increasing is some evidence that sales, or orders, are
also increasing. These principles apply to Respondent's
economic defense of its layoff of Betty Robinson, and to
the production records which it submitted in this pro-
ceeding.
Respondent's records cover the months of April 1979
through February 1980, with unexplained omissions of
June and July 1979. They are thus coextensive with the
one layoff in September and the two in November They
do not purport to be records of all units or components
produced by the Company. Nonetheless, they do consti-
tute records of a very substantial number of components
produced during a relevant period. The monthly totals of
all these components thus constitute some evidence of
the Company's orders from customers at times when em-
ployees were being laid off because, the Company as-
serts, orders were going down
The records are quite the reverse of what one would
expect in a business with declining sales. Thus, they
show totals of 6162 components produced in Apri1,31
13,579 in May (no figures for June or July), 12,137 in
August, 28,361 in September, 33,587 in October, 32 27,463
in November, 33 18,373 in December, 34 20,688 in January
1980, 35 and 31,789 in February 36)
Thus, in the month of the first layoff (September), pro-
duction was about four and one-half times greater than it
was 5 months before (April), and continued at the same
substantially higher level Assuming some lag time be-
tween receipt of orders and production, the fact that
production continued at a high level for all 5 months
after September strongly suggests that there was no de-
cline in orders during that and succeeding months
These figures are not conclusive, since they are de-
rived from the Company's gas welding department.
Frank Ducate testified that the rising cost of home heat-
ing fuel had almost eliminated business in oil furnaces
since November 1979. However, he admitted that busi-
ness in gas furnaces had "picked up" in the winter of
1980. The record thus contains only testimonial asser-
tions of a decline in total orders and a decline in oil fur-
nace sales, while the only documents available, plus
Frank Ducate's corroboration, show a substantial in-
crease in gas furnace sales. There are no documents to
establish that this increase in one part of Respondent's
business was more than offset by a decline in another
part. Respondent presumably had business records show-
ing total orders during relevant periods of time. No such
records were supplied.
" R Exh 61, totals of all products for all employees in the column
entitled, "Quantity Production"
32 McCrea was injured in October and did not return to work until
November R Exh 61 omits figures for all employees for the period of
McCrea's absence Thus, for October 1979, with 23 working days, the ex-
hibit provides production figures for only 9 days, the total of which is
13,143 units Assuming similar production during the 14 working days
omitted on the exhibit, the extrapolated total is 33,587 for October
33 Out of 22 working days in November 1979, R Exh 61 provides
production figures of 18,724 for 15 days Assuming similar production
rates for the 7 omitted days, the extrapolated total for the month is
27,463 See fn 32
34 Eight weekdays are omitted, presumably for holiday reasons
35 Actual figures, see fn 31
36 ibld
Respondent's animus against the Union and its sup-
porters has already been established, as well as an elabo-
rate structure of pretextual defenses in the case of
McCrea. Respondent's witnesses on the issue of its al-
leged decline in orders were not reliable, and I conclude
that the Company has not established that it suffered a
decline in customers' orders during the period of the lay-
offs.
c The "Prior Decision" issue
With respect to the specific layoff of Robinson, I do
not credit the testimony of Respondent's witnesses that
this decision was made about 2 weeks prior to November
7 Robinson had had an amiable conversation with Frank
Ducate only a few weeks before, in which she was as-
sured of continued employment and maternity benefits. It
is unlikely that Ducate would thereafter make a secret
decision to terminate her, but delay notifying her for 2
weeks There is no evidence of delay in implementation
of layoff decisions pertaining to other employees, and no
reason to believe that Respondent varied its customary
practice in the case of Robinson.
It is probable that Respondent would have consulted
with Donna Winstead before adding the shipping clerk
duties to her existing duties as a personnel clerk, and that
Winstead would then have had some knowledge of the
date of the alleged decision to "consolidate" the two po-
sitions However, Winstead, currently employed by Re-
spondent, was not called as a witness. I infer that, if
called, her testimony would have been adverse to Re-
spondent on this issue 37
For these reasons I find that Respondent's decision to
give Robinson a "permanent layoff" was made about the
date of the actual layoff, to wit, November 7, 1979.
d Respondent's other evidence against Robinson
Respondent introduced voluminous shipping docu-
ments with various errors on them, allegedly by Robin-
son. Dennis Ducate asserted that he spoke to Robinson
in May 1979 about these errors, but acknowledged that
he never gave her a written warning. Ducate also admit-
ted that these errors had nothing to do with Robinson's
layoff There is therefore no need to consider them, since
Respondent concedes that they were not a factor in its
action against her.
Respondent also sought to attack Robinson's credibil-
ity on the ground that she filed an application for unem-
ployment compensation benefits on November 13, stating
thereon that she was not pregnant, whereas in fact she
gave birth 2 days later Robinson testified that she was
obviously pregnant 2 days before childbirth, at the time
when she appeared in the unemployment compensation
office, and that she inadvertently checked the wrong box
on the application. I have carefully considered this evi-
dence and conclude that it does not indicate that Robin-
son was an untruthful witness.
" Supra, fn 30
DUCANE HEATING CORP. 1405
7. Legal analysis and conclusions
As in the case of McCrea, Robinson was a union sup-
porter who testified at the prior hearing, and Respond-
ent's animus against such employees has been established.
For reasons already given and authorities cited, this
animus must be considered in evaluating Respondent's
action against Robinson.
In March 1979, Supervisor Dennis Ducate asked Rob-
inson, "What is this that I hear about you being for the
Union?" and told her that she could not "afford" to be
for the Union. In a later conversation referring to the ab-
sence of another employee, Ducate said that this was
how Respondent was going to "get rid of the bunch of
them, all 166 of them." Since 166 employees voted for
the Union during the election held the same month,
Ducate was obviously threatening to get rid of all the
union supporters. Although these statements by Ducate
were not alleged as independent violations of the Act,
they were obviously coercive.
Robinson did not openly admit her prounion sympa-
thies in March 1979. Thus, she asked Dennis Ducate
who it was that had told him that she was "one of the
166." Ducate contends that Robinson said that employ-
ees would be "crazy" to vote for the Union. Respond-
ent's doubts about Robinson's true sympathies were aug-
mented during her two conversations with Frank Ducate
in September 1979, after the first layoff, when she re-
quested assurances of maternity benefits and job continui-
ty. The fact that Ducate gave her these assurances in a
friendly conversation, and told her that he needed her in
the shipping department, suggests that Respondent was
not yet aware of Robinson's stand on the union issue.
Robinson's views became apparent on November 3,
when she testified for the General Counsel in the prior
hearing. Respondent's attitude underwent an abrupt
about-face. Thus, when Robinson returned to work and
protested being called a "dirty person" for testifying, and
said that she was going to the Labor Board if the harass-
ment did not stop, Dennis Ducate said that he knew she
would—a comment evidencing Respondent's animus.
On November 7, 4 days after her testimony, Robinson
received a "permanent layoff' under circumstances
which warrant a finding that she was discharged, as al-
ready set forth. Her discharge was motivated by Re-
spondent's discovery of her union sympathies, and by the
fact that she testified on behalf of the General Counsel at
the Board hearing. This conclusion is warranted because
of Dennis Ducate's prior coercive interrogation and
threats in March 1979, 38 the abruptness of Robinson's
discharge" a few days after her testimony at a Board
hearing, 40 the fact that the asserted reason for her dis-
charge, a decrease in orders, did not in fact take place,4'
39 Robin American Corp., 245 NLRB 822, 835 (1979); Pearson Bros Co.,
199 NLRB 1179 fn. 3(1972).
39 McGraw-Edison Co., 172 NLRB 1604 (1968).
40 Grove MA. Co., 196 NLRB 280 (1972).
41 NLRB v. West Coast Casket Co., 469 F.2d 871 (9th Cir. 1972), enfg.
in part 192 NLRB 624 (1971), Wisconsin Bearing Co., 193 NLRB 249, 259
(1971).
the fact that other employees were recalled at a time
when business was allegedly going down, without expla-
nation in accordance with any rational seniority
system," and by Respondent's previously established
animus against the Union and its supporters. Wright Line,
supra.
For these reasons, I find that Respondent discrimina-
torily discharged Robinson on November 7, because of
her union sympathies and her testimony before a Board
hearing, in violation of Section 8(a)(1), (3); and (4) of the
Act.
D. Larry Hampton
1. Employment history
Hampton started working for the Company as a
welder in the oil welding department in August 1977. He
later transferred to the gas welding department where
his principal job was tying ends. This work required him
to lift and pull units weighing up to 40 pounds.
2. Hampton's union activities
Hampton credibly testified that he started working on
behalf of the Union in August or September 1978, and
that this continued until about October 1979. He passed
out union leaflets and asked fellow workers to sign union
cards. John Harrison, a supervisor in the oil welding de-
partment,43 testified that he saw Hampton distributing
leaflets, and company knowledge of this activity is there-
fore established. 44 Hampton also testified at the previous
Board hearing which began October 30, 1979, and Re-
spondent obviously had knowledge of this fact.
3. Hampton's injury and treatment
On January 25, 1980, Hampton slipped in a hole
caused by a missing roller within the roller belt, and fell
on his back." He worked for about 30 minutes, then
began to feel pain, and asked to see a doctor. He was ex-
amined that day by Dr. John C. Whitley Jr., a witness
for Respondent. Frank Ducate described Dr. Whitley as
"our Company doctor," although the latter said that he
was "simply available" to the Company. Whitley took
X-rays and conducted a physical examination of Hamp-
ton. The X-rays showed no abnormality, but the physical
examination revealed tenderness and a muscle spasm in
the lower back. Hampton was given muscle relaxants
49 Eugene Luhr & Co., 187 NLRB 769, 772 (1971).
43 The complaint dated July 17 alleges and the answer thereto admits
that "John Hairston" is an agent of Respondent and a supervisor within
the meaning of the Act. At the hearing, "John Harrison" testified that he
had been a supervisor in the oil welding department since March 1979. I
find that the correct last name is "Harrison," as stated in the official tran-
script, and that he was an agent of Respondent and a supervisor within
the meaning of Sec. 2(11) of the Act.
"As indicated, ibid., Harrison said that he had been a supervisor since
March 1979. The allegation in the complaint, admitted by the answer,
avers that he was a supervisor "at all times material herein." Since
Hampton's union activities continued through October 1979, I concliide
that Harrison and, by attribution, Respondent acquired knowledge of
Hampton's activities at times subsequent to Harrison's acquisition of su-
pervisory status.
"Hampton stated that the date was January 5. However, the medical
records show that it was January 25.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pain medication, and was recommended for light
duty for 5 days.
Hampton returned to Dr. Whitley on January 30.
There was some improvement, but he still complained of
pain, and was given another analgesic. After Hampton's
return to Dr. Whitley on February 4, the latter contin-
ued his diagnosis of back strain, minor contusion, and
minor spasm. However, because of the continued pain,
Hampton was referred to an orthopedic surgeon, Dr.
Harry L. Pearce, who examined him on February 8. X-
ray examination was unremarkable, and Dr Pearce's di-
agnosis was acute dorsal lumbar back strain or a pulled
back muscle He prescribed pain medication, rest, a back
brace, and light duty. Hampton credibly testified that he
wore the back brace throughout his period of treatment,
and thereafter.
Dr Whitley saw Hampton, for the last time, on Febru-
ary 11. It was his opinion that Hampton could return to
full duty. However, he deferred to Dr. Pearce's recom-
mendation for light duty as being within the latter's area
of expertise. Although Dr. Whitley testified that he had
detected a muscle spasm in Hampton's back on initial ex-
amination, he was later unable to say whether there were
any involuntary muscular contractions. He was asked
what diagnostic inference might be derived from the ab-
sence of such contractions. Dr. Whitley answered that,
although "faking" had to be considered in the absence of
involuntary signs and symptoms, "the patient can't help
but experience some discomfort and sometimes [it] is
almost impossible to really tell whether it is subjective or
objective."
Dr. Pearce saw Hampton again on February 15, at
which time he was still experiencing pain. Dr Pearce
prescribed anti-inflammatory medication and, 4 days later
when Hampton was seen again, Dr. Pearce felt that
there had not been sufficient time for healing.
Hampton missed one appointment with Dr. Pearce on
March 11 because of transportation problems, but was
seen on March 17 He was still complaining of "intermit-
tent discomfort," but Dr. Pearce considered that the
healing process had been completed. He testified that no
examination of Hampton was necessary after the initial
examination, because the latter reported diminishing pain
over the period that he was seen. Dr. Pearce did ac-
knowledge, however, that lifting and bending might ag-
gravate the existing injury.
Hampton testified that Dr Pearce told him that his
back might hurt for a while because of the injury How-
ever, the doctor told him that he might lose his job if he
continued on light duty Although Dr. Pearce said that
he did not know specifically whether Hampton was
working, or the name of his employer, he agreed that he
frequently counsels patients against prolonged light duty,
because of the abundance of healthy applicants for em-
ployment. Accordingly, he gave Hampton a "certificate"
that he was able to return to work with no limitations
4 Hampton's work during the period of treatment
and his discharge
Hampton credibly testified that, after he returned from
seeing Dr. Whitley the first time, Supervisor Creech told
him to go back to his usual job Hampton protested,
saying that Dr. Whitley had assigned him to light duty.
Assistant Plant Manager Billy Joe Stewart demanded
that Hampton return to the doctor's office and get the
work restriction in writing. Creech maintained that tying
ends was light duty. Hampton differed with this, because
of the bending and lifting requirement, and Creech at-
tempted to show him how to do the job without bending
and lifting. Hampton was then assigned to sweeping. He
testified, and Creech denied, that the latter tried to get
him to sweep under the roller belts in a manner which
required bending. I credit Hampton.
In February, Hampton was transferred to the oil weld-
ing department under Supervisor John Harrison. His job
was making cleats, a spot welding function classified as
light duty. Hampton testified that there was sufficient
work of this nature. Harrison, although he said that this
was a "created" job, also testified that he had enough of
this work for Hampton to do
When Hampton returned from his March 17 visit with
Dr. Pearce, he gave Harrison the doctor's certificate
stating that he could return to work without limitations
Harrison read the certificate and, noting that "they're
putting you back on your regular duty," asked Hampton
how he felt. According to Hampton, he replied that his
back still hurt, and Harrison responded by saying he did
not know why Hampton should go back to regular duty
with pain in his back. Harrison alternately denied and
then said that he did not know whether he had this con-
versation. I credit Hampton
Harrison further testified that Hampton walked around
the plant "slumped over," but that he also saw him walk-
ing normally one night in a grocery store. When Hamp-
ton saw the supervisor, according to Harrison, he "sort
of went back into his slump." I attach little importance
to this testimony, because the fact that Hampton was ac-
tually experiencing pain is medically documented. Fur-
ther, as noted, Hampton wore a back brace at times, and
may have had unusual posture because of it.
After Hampton's return to the plant with Dr Pearce's
certificate on March 17, he went back to making cleats
Creech came over and asked him what Dr. Pearce had
said, and how his back felt Hampton said that his back
hurt, and referred Creech to Harrison for the doctor's
report Hampton was then ordered to return to the gas
welding department and begin welding, which he did for
the balance of March 17.
Hampton returned to work the next day, and during
the morning told Creech that his back still hurt and that
he would like to see a doctor. Creech asked whether the
last doctor had released him, and Hampton responded af-
firmatively According to Creech, Hampton said that he
was unable to do his job and would not do it. I credit
Hampton's version of this conversation
Plant Manager Frank Ducate testified that he received
a report on March 18 that Hampton had been released
for work without limitation, but that he was complaining
that he could not or would not do the job, and wanted
to see a doctor Ducate asserts that he then called Dr.
Pearce, who told him that he could not find anything
wrong with Hampton, and that the latter was "malinger-
ing." Ducate then spoke with his attorney, and also
DUCANE HEATING CORP. 1407
stated that he called Dr. Whitley, who told him that
Hampton was "faking." Ducate then prepared a perma-
nent layoff notice for Hampton, because of "inability or
refusal to do the work," and gave it to Assistant Plant
Manager Billie Joe Stewart.
Hampton was then called into Stewart's office, with
Creech present, and was given the discharge notice. Ac-
cording to Hampton, he read it, and protested that he
was not refusing to do his normal job, but that his back
hurt and he was unable to do his job at that time. Stew-
art replied that there was nothing he could do. Hampton
stated that he unsuccessfully asked for a union represent-
ative or coworker. Stewart testified that the entire pro-
ceeding went smoothly. It was "cut and dried." Hamp-
ton did not ask for a union representative, and did not
even object to being permanently laid off. This testimony
is incredible, and I accept Hampton's version.
Respondent introduced into evidence a letter from Dr.
Pearce dated March 19, 1979, stating that it was in re-
sponse to a request from Ducate. The letter outlines Dr.
Pearce's diagnosis and treatment given above, and con-
cludes that Hampton was still complaining of mild pain
in the middorsal back on April 17 but that the doctor felt
he could return to work with the help of aspirin if
needed. Respondent also introduced a letter from Dr.
Whitley dated April 11. This letter notes that Hampton
was last seen on February 11, that examination then
"failed to reveal any objective pathology," and that
Hampton was "encouraged to return to work as suggest-
ed by Dr. Pearce."
I do not credit Ducate's testimony concerning the
"malingering" and "faking" statements attributed to the
doctors. Dr. Whitley testified during the hearing, and his
letter is outlined above—there is no reference to
"faking" anywhere in this evidence. Indeed, when Dr.
Whitley was explicitly asked whether "faking" could be
inferred from an absence of involuntary muscular con-
tractures, he replied that it was difficult to tell.
Nor is there anything about "malingering" in Dr.
Pearce's testimony or letter. Given his diagnosis of acute
back strain, and his treatment consisting of pain medica-
tion, rest, a back brace; and light duty, it is incredible
that he would have considered Hampton a malingerer.
Even on March 17, when he released Hampton for gen-
eral duty, Dr. Pearce acknowledged that Hampton was
still asserting intermittent pain, but felt that he could
work with the help of aspirin if necessary.
There is no testimony from either doctor about a tele-
phone conversation with Frank Ducate on March 18.
Respondent introduced a "documentation" wherein
Ducate sought to record his alleged conversation with
Dr. Pearce on March 18, and, as noted, the latter did
send a letter dated March 19. There is no "documenta-
tion" concerning a conversation on March 18 with Dr.
Whitley, however, and the latter's letter to Respondent
about Hampton is dated April 11, about 3 weeks after
the layoff. I do not credit Ducate's testimony that he had
any conversation at all with Dr. Whitley on March 18.
Up until the time of his return from Dr. Pearce's office
on March 17, Hampton had been engaged for several
weeks in light duty, making cleats. He was then trans-
ferred for the balance of the day to welding, despite his
claim that his back hurt. The next day he said that his
back still hurt, and asked to see a doctor. He was a be-
lievable witness, and his testimony as to pain is support-
ed by the medical evidence. I credit that testimony.
5. Respondent's other evidence against Hampton
Respondent introduced evidence of Hampton's allegexl
absenteeism. However, Frank Ducate testified that
Hampton was not laid off because of absenteeism, and
there is therefore no need to consider this evidence.
Hampton was given a written warning for "low pro-
ductivity" on June 9, 1979, but was also given "recogni-
tion" a week later for improvement. Other similar evi-
dence introduced into the record by Respondent has
nothing to do with the issues in this case.
Frank Ducate testified that Respondent had perma-
nently laid off another employee (Timothy Jeffries)
under "exactly the same" circumstances as Hampton's—
refusal or inability to work after a doctor's release to full
duty from light duty (R. Exh. 43).
6. Legal analysis and conclusions
The record clearly establishes that Hampton suffered a
work-related back injury on January 25, and was thereaf-
ter in pain. The General Counsel seeks to cast doubt on
the value of Dr. Whitley's testimony, because of its vari-
ance from that of Dr. Pearce, and on the latter's opinions
because he did not conduct a physical examination of
Hampton on March 17 before releasing him for general
duty.
Dr. Whitley candidly deferred to Dr. Pearce's exper-
tise in the field of back injuries. And there is no record
evidence to contradict Dr. Pearce's description of medi-
cal practice, i.e., that barring evidence of a new injury, a
patient's assertions of diminishing pain warrant a release
without another examination. However, if the patient's
statements alone provide the basis for a medical opinion,
according to Dr. Pearce, then there would appear to be
no medical contradiction to Hampton's statement the
next day that his back hurt too much to engage in weld-
ing. On the other hand, if Hampton's statement is insuffi-
cient for a medical judgment, then he should have been
given a physical examination before increasing the level
of his physical activity, particularly in light of his protes-
tations of continuing pain.
These doubts as to the procedure followed are aug-
mented by Dr. Pearce's counseling of Hampton—that he
might lose his job if he continued on light duty. It is un-
clear how Dr. Pearce knew that Hampton was on any
kind of duty, since he testified that he did not know
whether Hampton was working. Further, this view
would seem to be an unwarranted introduction of a non-
medical opinion into what should have been an exclu-
sively medical subject.
Although these factors must be weighed in assessing
the medical evidence, they do not establish bias on the
part of the doctors in favor of Respondent. As set forth,
both doctors agree that Hampton did suffer an injury,
and that he was in pain. The appropriate area for consid-
eration is Respondent's use of the information it received
from Hampton and the doctors.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in the cases of McCrea and Robinson, Respond-
ent's animus against the Union and its supporters has al-
ready been established, and must be considered in analy-
sis of its treatment of Hampton. Like the other two em-
ployees, Hampton was a union activist and a witness at
the prior hearing.
The record shows that Respondent viewed Hampton's
injury as an opportunity to rid itself of a union protago-
nist. Thus, it was only with grudging reluctance that Re-
spondent complied with Dr. Whitley's prescription of
light duty for Hampton. First, Stewart demanded that
Hampton go back and get the order in writing from the
doctor. Then, Creech tried to convince Hampton that his
regular job of tying ends was light duty Finally, with
Hampton transferred to sweeping duties, Creech tried to
force him to sweep under the roller belts, a process re-
quiring bending.
When Hampton returned from Dr. Pearce with a gen-
eral duty "certificate," Creech promptly transferred him
to welding, despite Hampton's statement that he was still
in pain. The next morning, March 18, Hampton told
Creech that his back still hurt and that he would like to
see a doctor. This simple request was transformed into a
statement that Hampton "would not or could not" do his
job—at least, this is the report which Plant Manager
Ducate received. Ducate did not consult with Hampton
about the latter's version before making a decision—he
talked merely with his lawyer, perhaps with Dr. Pearce,
and thereupon decided to give Hampton a "permanent
layoff." Respondent's failure to investigate the matter
fully prior to making a decision constitutes evidence of
its animus. T.I.M.E.-DC, Inc. v. NLRB, 504 F.2d 294
(5th Cir. 1974), enfg. 203 NLRB 1141 (1973).
When Stewart met with Hampton, it was to inform
him of a decision already made, because Hampton
"would not or could not" do his job. When Hampton
said that he was suffering pain which prevented him
from doing the welding job at that time, Stewart dis-
missed the matter without any consideration of the fact
that Hampton had manifestly been able to make cleats in
the oil welding department, a light duty job where there
was a sufficiency of work. It is therefore clear that one
of the alternatives in Respondent's dual rationale for its
discipline of Hampton—that he "could not" do his job—
was inaccurate. Although he could not engage in a full
duty job at the time, he was capable of engaging in
other, lighter work, which was then available. Respond-
ent's failure to transfer him back to this work constitutes
additional evidence of its unlawful motivation. PPG In-
dustries, 251 NLRB 1147, 1173 (1980).
The other alternative in Respondent's dual rationale—
that Hampton "would not" work—involves in essence a
charge that Hampton was malingering. It is clear that
this was not true in fact, based on the medical evidence
of an actual injury, the observed muscular spasms, the
doctors' opinions, and Hampton's credible testimony of
pain.
Nor does the evidence warrant a finding that Re-
spondent had a good-faith belief that Hampton was ma-
lingering. Respondent's only support for this argument is
Dr. Pearce's general duty certificate. Factors militating
against a finding of a good-faith belief, however, are (1)
Respondent's initial reluctance to give Hampton light
duty, (2) Hampton's protestations of pain to Supervisors
Creech and Harrison, without any expressions of doubt
from the latter; (3) Hampton's abrupt transfer back to the
gas welding department upon Respondent's receipt of
Dr. Pearce's certificate, without any consultation with
Hampton; (4) Ducate's precipitate decision to give
Hampton a permanent layoff without full investigation,
and without an opinion from the doctors that Hampton
was malingering; (5) Stewart's denial of Hampton's re-
quest for a union representative or coworker during the
exit interview; (6) Respondent's failure to transfer Hamp-
ton back to the light duty which he could do; and (7)
Respondent's previously established union animus. Re-
spondent's argument that it was merely following its
own past practice, citing the Jeffries case, is not persua-
sive—there is no evidence that any, much less all, of the
foregoing factors were present in the Jeffries case.
The Board has had occasion to pass on a similar factu-
al situation. In Fasco Industries, 214 NLRB 93 (1974), the
company sought to establish the validity of its belief that
the alleged discnminatee, a union activist, had abused
company policy against "summer leaves" for female em-
ployees by a false claim of a back impairment. Chairman
Miller, in a dissenting opinion, concluded that the com-
pany had established its position, and stated that "all of
the medical evidence and the factual evidence confirms
the report of the orthopedic specialist that from and after
July 7 even the subjective symptoms of back pain had
disappeared. There never having been any evidence of
other than purely subjective symptoms, there is no
reason to doubt, and every reason to accept, Respond-
ent's reasons for having had a deep-seated suspicion that
(the alleged discnminatee) was indeed attempting to cir-
cumvent Respondent's policy against 'summer leaves"
(id at 95). A panel majority, however, sustained the ad-
ministrative law judge's conclusion that the company's
asserted reason was a pretext (id.). In the case at bar,
warrant for a finding of pretext is measurably stronger
than in Fasco, because of the many factors cited above,
and because Hampton, unlike the discnminatee in Fasco,
gave testimony in a Board hearing in addition to his
union activities.
For these reasons, I find that Respondent discrimina-
torily discharged Hampton on March 18, 1980, because
of his union activities and his prior testimony in a Board
hearing, in violation of Section 8(a)(1), (3), and (4) of the
Act
In accordance with my findings above, and upon con-
sideration of the entire record, I make the following
CONCLUSIONS OF LAW
1. Ducane Heating Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2 International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily suspending Randolph McCrea
for 3 days beginning September 7, 1979, and for 5 days
beginning September 28, 1979, and by discriminatorily
DUCANE HEATING CORP. 1409
discharging Betty G. Robinson on November 7, 1979,
Randolph McCrea on February 29, 1980, and Larry
Hampton on March 18, 1980, and by thereafter failing
and refusing to reinstate them, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1), (3), and (4) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act. It having been found that Respondent unlawful-
ly suspended Randolph McCrea for 3 days beginning
September 7, 1979, and for 5 days beginning September
28, 1979; and unlawfully discharged Betty G. Robinson
on November 7, 1979, Randolph McCrea on February
29, 1980, and Larry Hampton on March 18, 1980, in vio-
lation of Section 8(a)(1), (3), and (4) of the Act, it is rec-
onunended that Respondent be ordered to offer the fore-
going employees immediate and full reinstatement to
their former positions or, if such positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, dis-
missing if necessary any employee hired on or since No-
vember 7, 1979, to fill any said position, and to make said
foregoing employees whole for any loss of earnings any
of them may have suffered by reason of Respondent's
acts herein described, by payment to each of them a sum
of money equal to the amount he or she would have
earned from the date of his or her unlawful discharge to
the date of an offer of reinstatement, including in the
case of McCrea the period of his aforesaid unlawful sus-
pensions, less net earnings during such period, with inter-
est thereon to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).46
I further conclude that Respondent's unfair labor prac-
tices found herein, engaged in concurrently with and fol-
lowing its unfair labor practices established in the last
proceeding, demonstrate a proclivity to violate the Act.
Thus, the record shows that Respondent has additionally
violated the Act by two discriminatory suspensions and
three discriminatory discharges, with practices including
questionable bookkeeping, layoffs for dubious reasons, a
propensity to seize upon the work-related injury of em-
ployees for discriminatory purposes, and a panoply of
pretexts. Accordingly, I shall recommend a broad order.
Respondent will also be required to post an appropri-
ate notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed47
" See generally Isis Plumbing Co., 138 NLRB 716 (1962).
47 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
ORDER
The Respondent, Ducane Heating Corporation, Black-
ville, South Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or
any other labor organization, by unlawfully discharging
or suspending any of its employees, or discriminating
against them in any other manner with respect to their
hire or tenure of employment, in violation of Section
8(a)(3) of the Act.
(b) Discharging or otherwise discriminating against
employees because they have given testimony under the
National Labor Relations Act.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Randolph McCrea, Betty G. Robinson, and
Larry Hampton immediate and full reinstatement to their
former positions or, if such positions no longer exist, to a
substantially equivalent position, without prejudice to his
or her seniority or other rights and privileges, discharg-
ing if necessary any employee hired to replace any of
them, and make them whole for any loss of pay any of
them may have suffered by reason of Respondent's un-
lawful discharge or suspension of him or her, in accord-
ance with the recommendations set forth in the section
of this decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of ba.ckpay due under the
terms of this Order.
(c) Post at its plant in Blackville, South Carolina,
copies of the attached notice marked "Appendix."48
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
spondent immediately upon receipt 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 Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses
48 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 Judgment
of the United States Court of Appeals Enforcmg an Order of the Nation-
al Labor Relations Board."