Willowbrook, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 379 (N.L.R.B. 1975)

WILLOWBROOK, INC. 379
Willowbrook, Inc. and Hal C. Wilson. Case 16-CA-
5543
June 10, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 12, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We do not agree with the Administrative Law
Judge that Respondent discharged Hal C. Wilson in
violation of Section 8(a)(3) of the Act or promised
Wilson enhanced job opportunities for voting against
the Union. The relevant evidence, as credited by the
Administrative Law Judge, is summarized below.
Respondent, a wholesale beer distributor, hired
Wilson as a general warehouseman and later added
the duties of building maintenance. He remained in
this position until he was discharged on February 19,
1974.1 In the spring of 1973 Wilson complained that
an outsider had been interviewed for the job of
assistant warehouse manager when, he and others in
the warehouse had not. When the outsider, Walter
Richardson, was given the job, Wilson began
organizing employees for representation by the
Teamsters. After learning about a concurrent and
more successful campaign, Wilson switched to
organizing for the Brewery Workers. At the October
16 representation hearing Wilson, as management
was aware, testified on behalf of the Brewery
Workers. During the campaign Respondent actively
opposed the Union.
Prior to the election, Operations Manager Jim
Lewellen offered Wilson the job of television monitor
at a new warehouse to be constructed and said that
the employees did not need a third party and that
Wilson should vote against the Union. Earlier, in
May, Lewellen had offered Wilson the monitor job,
but Wilson turned it down as too confining. Also
prior to the election, Wilson told Warehouse Manag-
er Jim Kennedy that the Brewery Workers had a
poor contract with another distributor but that if it
won the election he would try to get a better contract.
The Brewery Workers lost the November 27 election
by a vote of 9 to 66.
On February 15, the Friday prior to Wilson's
discharge, Kennedy told Wilson that there was an
opening for an assistant warehouse manager at
another local beer distributor and that Kennedy had
recommended Wilson for the job. Wilson went to the
warehouse on Saturday but did not talk to anyone
because it was being picketed by the Teamsters. On
Monday Wilson told Kennedy that he had gone to
the job but did not want to become involved in labor
trouble with the Teamsters because he was ' a
Teamsters man.
The next day, February 19, Wilson was discharged.
Kennedy told Wilson that he was unhappy with
Wilson's work, that Wilson was overqualified, and
that Wilson should be in management with some
other company. Wilson said he was happy and
wanted to stay. Kennedy said he wanted Wilson to
go someplace else and in response to a question said
Wilson was fired. Kennedy told Wilson not to finish
the shift, although February 19 was the end of a
payroll period.
Wilson returned the next day to pick up his
paycheck. He separately told three members of
management that he knew he was being fired for his
union activity and that it wasn't right. Kennedy had
no comment. Lewellen said he had to go along with
the discharge. President Raymond Willie said that
Wilson was one of the best employees but that his
supervisors did not like him and that he would give
Wilson the highest recommendation. Willie asked
Wilson not to fight the discharge or cause the
Company any labor trouble.
On inferences drawn from the above facts, particu-
larly Respondent's knowledge that Wilson was an
active union supporter, Wilson's statement that he
was a Teamsters man, supervisory compliments of
Wilson's work, and Kennedy's statement that Wilson
was overqualified and belonged in management, the
Administrative Law Judge concluded that Wilson
was discharged for engaging in union activity.
However, in our opinion, inferences at least as strong
may be made in support of the Respondent's
position. Thus, we find that counsel for the General
Counsel has not met his burden of proving by a
preponderance of the evidence that Wilson was
discharged for engaging in union activity.
Although Respondent knew that Wilson had been
active on behalf of the Brewery Workers, the only
evidence that Wilson continued to support unioniza-
tion in the 3 months between the election and his
1 Unless otherwise indicated, the events herein occurred from May 1973
through February 1974.
218 NLRB No. 67
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge is his statement that he was a Teamsters
man. Yet, the Friday before Wilson made the
statement, Kennedy recommended Wilson for em-
ployment elsewhere and encouraged Wilson to apply
for the job. The record thus shows that Respondent
wanted Wilson employed elsewhere prior to when he
made the statement and that the statement was,
therefore, not a factor in his discharge.
Respondent contended that Wilson was discharged
because he was slow, did not seem interested or
satisfied in his work, and was not progressing.
Although testimony by Respondent's witness about
specific instances of Wilson's failure to perform his
duties was discredited, the suspicion cast thereby on
Respondent's motivation does not meet the General
Counsel's burden of proof. On the contrary, Wilson's
employment record indicates that Respondent has
come forward with an explanation that is sufficiently
plausible to defeat the General Counsel's burden.
There are a number of reasons why Wilson might
be dissatisfied with his duties as general warehouse-
man. He opposed Richardson's interview for assist-
ant warehouse manager, and Richardson's promo-
tion was a cause of Wilson's organizational efforts.
Thus, there were reasons for animosity between
Wilson and Richardson. In fact, in a postdischarge
conversation with Wilson, Willie said that his
supervisors did not like him. Wilson had previous
managerial experience and admitted he wanted to get
into management if the position was right. Yet, he
was prevented from doing so by the promotion of
Richardson, from whom Wilson got his immediate
supervision. On top of this, Wilson saw the Union,
which he had counted on to take care of his
dissatisfaction, soundly defeated.2
At various times, including the discharge interview,
members of management told Wilson he should be in
management. This is not surprising in view of
Wilson's managerial experience and the several
suggestions he made for improvements in the
warehouse operations.3 A person with Wilson's
desire for, background in, and ability to perform
managerial duties might well cause the person to
manifest a lack of interest in routine warehouse tasks.
Thus, Respondent's statements that Wilson should
be in management are not inconsistent with its
position. The Administrative Law Judge found that
Respondent's statements to that effect "would
appear to militate in favor of efforts to keep Wilson,
in view of the new warehouse under construction."
2 The Administrative Law Judge found that Wilson could reasonably
expect to be appointed shop steward.
3 Although Wilson received compliments for the improvements, the
compliments were for his ideas and not for his performance of or attitude
toward a general warehouseman's duties.
4 The Administrative Law Judge recognizes this in discussing the offer of
the TV monitor job to Wilson. She states that Respondent might well have
nothing better to offer.
Yet, there is no evidence that there would be any
additional managerial positions in the new ware-
house except for the job of TV monitor, which
Wilson rejected.4 What Respondent needed was an
able warehouseman. There was no evidence that it
wanted or needed another manager.
For the above reasons, we find that the General
Counsel has not proved the alleged unlawful dis-
charge by a preponderance of the evidence. Accord-
ingly, we shall dismiss this allegation of the com-
plaint.
There remains for consideration the Administrative
Law Judge's finding that Respondent unlawfully
promised benefits to Wilson on the condition that
Wilson withdraw his support for the Union. The only
evidence of this allegation consists of Wilson's
credited testimony that prior to the election Lewellen
told Wilson that the job of TV monitor was available
and that Wilson should vote against the Union. We
fmd that the evidence, in the circumstances set forth
below, is not sufficient to prove the allegation.
Lewellen had previously offered Wilson the job,
but Wilson rejected it. In fact various members of
management had on occasion told Wilson that he
should be in management. Thus, Lewellen was
offering Wilson nothing new. In addition, there was
nothing other than the fact that they occurred in the
same conversation to connect the offer with the
request to vote against the Union. Since the Respon-
dent had openly and actively opposed the Union and
had instructed its supervisors in how to oppose the
Union,5 Lewellen could be expected to interject an
antiunion statement in any conversation he had with
an employee, especially with an employee who was a
known union adherent. In addition, there was no
allegation that any objectionable conduct or other
unfair labor practices occurred during the campaign.
For the above reasons, we find that the General
Counsel failed to prove that the Respondent condi-
tioned, either explicitly or impliedly, the proffered
benefit on Wilson's ceasing to support the Union.
Accordingly, we shall dismiss this allegation of the
complaint .6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
5 Based on the uncontradicted testimony of Ken L. Hayes, Respondent's
vice president, that Respondent hired counsel for guidance , held supervisory
meetings, and gave supervisors a list of do's and don'ts.
6 As we are dismissing the complaint herein in its entirety , we find it
unnecessary to consider certain issues of credibility raised by the
Respondent in its exceptions.
WILLOWBROOK, INC. 381
MEMBER JENKINS, dissenting:
My colleagues have constructed a plausible case
but a different one from that decided by the
Administrative Law Judge whose Order I would
adopt.
DECISION
Statement of the Case
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding, was heard at Dallas, Texas, on December 3 and
4, 1974, pursuant to a charge filed on April 24, 1974, a
complaint issued on June 26, 1974, and an amended
complaint issued on November 25, 1974. The questions
presented are whether Respondent (1) in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended (the Act), promised enhanced job opportunities
for refraining from activity on behalf of the International
Union of the United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO, Local 111
(the Brewery Workers) and threatened loss thereof for
engaging in such activity; and (2) in violation of Section
8(a)(3) and (1) of the Act, discharged employee Hal C.
Wilson because of his union activity.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and counsel for the General Counsel, I make
the following:
FINDINGS OF FACT
I. JURISDICTION AND THE UNION'S STATUS AS A
LABOR ORGANIZATION
Respondent is a Texas corporation with its only place of
business located in Dallas, Texas, where it is engaged in the
distribution and wholesaling of beer. During the year
preceding the issuance of the complaint and the amended
complaint, a representative period, Respondent purchased
goods valued in excess of $50,000 directly from points
outside, Texas. I find that, as Respondent, concedes, it is
engaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operations will
effectuate the policies of the Act.
The Brewery Workers is a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the period here in question; all of Respondent's
warehouse supervisors were white and all its rank-and-file
warehouse employees were black, except for one Mexican-
American and white employee Wilson. In early 1973, the
i Relying primarily on Wilson 's remarks to Pratz, Respondent contends
in its brief that Wilson was concerned about the promotion mostly because
he himself did not receive it. However, I credit Wilson's testimony that he
did not want the job himself, believed that promotional opportunities
should come first within the department, and believed that all warehouse
employees, should have had an opportunity to take the aptitude test. From
his demeanor and the inflections of his voice in testifying about his
job of assistant warehouse manager became available.
Respondent administered an aptitude test for, the job to
two black employees from the warehouse and to white
employee Walter Richardson, who at that, time was
working in another department and who was called back to
Dallas from a vacation in Turner Falls, Oklahoma, in order
to take the test. Wilson asked redemption center manager
Bob Pratz, "Why call in two blacks, and not call me in, or
call all of us in to take the test?" Pratz replied, ". . . they'll
call you and the other guys in next week." The test was not
administered to anyone else, so far as the record shows,
and Richardson got the job. Wilson later told Warehouse
Manager Jim Kennedy that black employee Herman
Green, the senior warehouse employee interested in the
job, should have been given an opportunity to try it out.'
There is no evidence that Richardson knew about Wilson's
objections to the method used to select Richardson for
promotion. However, as Respondent's brief points out,
Wilson's objections may have affected his own conduct
toward Richardson and thereby affected Richardson's
opinion of Wilson. In deciding this case, I have taken this
possibility into account.
Partly because of a belief that racial considerations had
caused Respondent to pass over black employees in the
warehouse in Richardson's favor, about June 1973 several
of such employees solicited Wilson's advice about how to
remedy what they regarded as racial discrimination by
Respondent. He replied that he would get in touch with the
Teamsters Union and the employees would try to organize.
After signing up 15 to 18 employees with the Teamsters,
Wilson found out about a concurrent and more successful
campaign for signatures on Brewery Workers cards.2
Wilson then began to campaign on behalf of the Brewery
Workers.
On September 17, 1973, the Brewery Workers filed a
representation petition with the Board. On October 16,
1973, the agency conducted a representation case hearing
at which Wilson testified on the Brewery Workers behalf.
The Brewery Workers lost the election, conducted on
November 27, 1973, by a vote of 9 to 66. No objections
thereto were filed, and a certification of results of election
issued on December 5, 1973. Wilson was discharged on
February 19, 1974.
On undisclosed dates after the filing of the petition,
Respondent acquired legal counsel for guidance, and then
held meetings with its supervisory personnel during which
it gave them a pamphlet, prepared by the National
Association of Manufacturers, telling supervisors what
they could and could not do in order to try to, induce the
employees to vote against a union. The pamphlet stated,
inter alia, that the supervisors "cannot" "Promise employ-
ees a pay increase, promotion, betterment, benefit, or
special favor if they stay out of the union or vote for it;
... Threaten . . . discontinuance of privileges or benefits
presently enjoyed . . . to influence an employee in the
conversation with Pratz, I believe that Wilson was referring to Respondent's
failure to give ban an opportunity to take the test only as an example of
what he believed to be a poor personnel practice.
2 Wilson testified that Respondent 'wanted to have the United Brewery
Workers' Union, rather than the Teamsters, if they were going to have an
election."
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of his right to . . . refrain from belonging to a
union," or "discharge . . . an employee because of his
activities on behalf of the union." The pamphlet further
stated that a supervisor `can- "Tell employees some of the
disadvantages of belonging to a union-such' as the
expense of. . . monthly dues," and "discharge for cause so
long- as such action follows customary practice and is done
without regard to union membership or non-union mem-
bership." Company Vice President (then general manager)
Ken L. Hayes testified that these meetings were attended
by "our supervisory personnel," but he did not name them,
and none of Respondent's other supervisors testified about
these meetings.3
Between the date of the petition and the date of the
election , Respondent conducted several employee meet-
ings, after working hours, during which members of
management all talked against the Union and talked about
Respondent's profit-sharing and its "fine insurance pro-
gram." All the employees attended these meetings, at
which food was served. In late October or early November,
General Manager Hayes had a conversation with employee
Tom Parker (also a witness for the Brewery Workers at the
October 16 representation case hearing) during which
Hayes watched Parker signing up his fellows in the
employee parking lot. At an employee meeting a few days
later, Hayes told the employees, "Word has gone around
that the Company knows who signed the applications for
membership in the Union. This is not true . . . we don't
know . . . and we don't want to know." 4 At one of these
meetings about a week before the election, Raymond
Willie, Respondent's president, illustrated his assertion that
a union victory would mean a $10 monthly deduction from
each employee's paycheck by suddenly revealing 10,000
one-dollar bills.5
B. The Alleged Unfair Labor Practices
1. Wilson's background and employment history
At a time not shown by the record, Wilson completed 3
years of law school. He left law school when his veterans'
benefits ran out, and he has never been licensed to practice
law. Also at times not shown by the record, Wilson was a
warehouse manager at a public warehouse in Birmingham,
with 40 or 50 people under him, and industrial relations
manager for a firm in California, with authority to
represent it in a labor case in the Federal courts.
Wilson was hired in July 1972 by Warehouse Manager
Kennedy. Wilson was hired as a general warehouseman at
$2 an hour. However, on his second day of employment,
Kennedy gave him a $.25 raise because he was doing an
"excellent job." " Wilson also received wage increases in
January 1973 and 1974; on these occasions, all other
warehouse personnel received increases at least as great as
his. At the time of his February 1974 discharge, he was
receiving $3 an hour. Nobody else in the department was
paid less than he, but there is no evidence that anyone else
on his shift was paid more except for Ansel Martinez and
leadman Green, both of whom regularly operated the
forklifts. At the time of Wilson's termination, he was the
second senior man on his shift and the third senior
warehouseman; both of the senior employees were lead-
men.
In September or October 1972, Respondent assigned
Wilson to perform "preventive maintenance work" on
certain kinds of Company-owned vehicles. This work,
which required him to check tires, batteries, radiator water,
gasoline, and oil, consumed about 2 days a week. About
November or December 1973, Respondent decided to
transfer these responsibilities to the individual drivers.
Shortly after assigning Wilson to do preventive mainte-
nance work, Respondent learned that he could do minor
building' maintenance work, and he began- to receive
assignments to such work as part of his regular duties.
Warehouse Manager Kennedy credibly testified that
Wilson was the only employee who had this dual function.6
In addition, as discussed infra, he himself conceived of and
executed various building maintenance projects. Also,
Wilson was in charge of cleaning the cage where glassware
and paper cups were kept, about every 3 weeks took a
truck from Dallas to Fort Worth to be painted, about every
3 weeks went to Arlington to pick up coolers, and about
once a month drove a truck to Lamar, where he and one or
two employees who accompanied him would empty
damaged cans of beer and sell the cans for the aluminum.
Wilson spent the rest of his time doing the same work as
other warehousemen-that is, keeping the warehouse clean
and tidy, removing damaged beer cans from 6-packs and
repackaging the good cans, stacking up kegs and empty
bottles, loading or unloading boxcars with a butane or
electric forklift, loading or unloading trucks, and occasion-
ally taking in aluminum cans at the redemption center. The
extent of his work on the electric forklift is the subject of a
sharp evidentiary dispute resolved infra.
Warehouse Manager Kennedy conceded that he had
complimented Wilson on some of his work, including his
installation in summer 1973 of steel plates around the door
on the back dock "that has probably saved replacing that
door facing half a dozen times." Wilson credibly testified
that Operations Manager Jim Lewellen and General
Manager Hayes described this installation as an "excellent
job." 7 Kennedy also conceded that he had complimented
3 Hayes testified about them on surrebuttal , and after all of Respon-
dent's other witnesses had been excused and left the hearing room. Such
testimony was in no respect responsive to evidence adduced on rebuttal by
counsel for the General Counsel, whose objection on that ground was
overruled.
4 Prior to this meeting, Wilson had told employees that if the Union lost,
"one by one you will all go " Wilson testified that he believed this to be true
because of instructions to that effect which he had received from his own
superior when Wilson had served as industrial relations manager at another
plant, not operated by Respondent , where a union lost a Board election.
5 Respondent had about 90 rank-and-file employees.
6 Assistant Warehouse Manager Richardson testified that others, whom
he did not name, also performed this building maintenance work , but that
they did not spend as much time on it as Wilson.
7 Hayes testified for Respondent but was not asked about this matter.
Lewellen testified that he did not "recall" complmientmg Wilson about
anything.
WILLOWBROOK, INC. 383
Wilson on the appearance of some cabinets he was
constructing.8 Assistant Warehouse Manager Richardson
testified that in early 1973 he complimented Wilson about
the hanging of truck lane signs in the warehouse to help
overcome truck backups outside; this system was planned
and executed by Wilson. Wilson credibly testified without
contradiction that on different occasions from January
'1973 until he testified at the representation case hearing in
October 1973, Company President Raymond Willie told
him that when coming in in the morning and leaving at
lunch or for the day, Willie had watched him work, and
that he "always did a good job on everything [he] was
assigned to do. [He] did an excellent job."9 It is likewise
undenied that between June and September 1973, Hayes,
then general manager, complimented Wilson on two of his
projects, including his action (Wilson's own idea) in
wrapping warehouse posts in yellow-painted sheet metal to
keep forklift operators from running into them and
damaging them .10 Wilson further credibly testified that
General Sales Manager Vic Mozarelli, Warehouse Manag-
er Kennedy, and Operations Manager Lewellen all
complimented him on his July or August 1973 suggestion,
adopted by Respondent, to construct wooden racks on the
bottom of the trucks in order to keep the cartons dry in wet
weather and thereby prevent the fragile aluminum foil beer
cans from breaking.11
There is a sharp evidentiary conflict, resolved infra,
about whether Wilson received any criticism or reprimand
prior to his discharge.
2. Events preceding Wilson's discharge
In April or May 1973, Operations Manager Lewellen
told Wilson that he was a "good employee" who was doing
a "real good job"; and that when Respondent built its new
warehouse, he wanted Wilson to take care of the TV
monitors which would watch the employees as they worked
in the warehouse. Redemption Center Manager Bob Pratz,
who was also present, told Wilson that he would go "into
management, on salary." Wilson replied that he would not
care for the monitoring job because it was too confining. In
8 Kennedy testified that Wilson worked on these between about October
1973 and his February 1974 discharge, and that Kennedy thought this
period was too long However, Kennedy testified at the December 1974
hearing that the cabinets had not yet been finished.
9 Willie testified for Respondent but was not asked about this matter.
10 Hayes testified for Respondent but was not asked about this matter.
11 Kennedy was not asked about this specific matter, but testified that he
was "sure" he complimented Wilson on some of his work. Mozarelh did not
testify, nor was his absence explained . Lewellen testified that he did not
"recall" complimenting Wilson about anything.
12 My findings in this paragraph are based on Wilson's testimony. Pratz
did not testify. For this reason, and in view of the considerations
summarized infra, fn. 13, I credit Wilson.
13 This finding is based on Wilson's credited testimony On direct
examination, Kennedy replied , "No sir," to the question, "Did you ever
promise [Wilson] that he was going to be made a part of the Willowbrook
management?" Thereafter, on cross-examination , Kennedy testified that he
"might have" discussed with Wilson the "need for more people in
management" once the warehouse was completed, but "I don't recall
discussing it with him" In view of Kennedy's equivocation in this
connection and the credible and in part uundemed testimony that
Respondent's representatives made somewhat similar statements to Wilson
on earlier and later occasions , I accept Wilson's testimony notwithstanding
his testimonial failure to add, as did his first pretrial affidavit, that Kennedy
also told him not to vote for the Brewery Workers, and notwithstanding
August or September 1973, Pratz told Wilson, "Hal, you've
got a good future here with this Company, and the
Company is trying to put you in management." 12
In the first week of October 1973, Kennedy told Wilson
that he had "a good future with the Company, that [he]
was going to management when we got into the warehouse,
in some position, but [Kennedy] didn't know what." 13
As previously found, Wilson testified for the Brewery
Workers at the representation case hearing on October 16,
1973. It was stipulated that Willie, Kennedy, and Lewellen
knew about this, and Richardson testified that he learned
on October 15 of Wilson's forthcoming appearance there.
The first week in November, Wilson had separate
conversations with Kennedy and Lewellen, the contents of
which are discussed infra, part II, C. Also as previously
found, the Union lost the election on November 27, 1973.
About February 4, 1974 (see infra, fn. 14), Kennedy
received a telephone call from the manager of Central
Beverage, a former employer, asking Kennedy to come
back to work for it. When Kennedy replied that-he was not
interested, the Central Beverage representative asked him
to recommend someone else for the job.14 On February 14
(infra, fn. 16), Kennedy approached Wilson and said, "Hal,
I've got a good job for you. I've already recommended you
for the job.15 All you have to do is go out, and it's yours.
It's [an] assistant warehouse manager's job with Central
Beverage, and it starts you out at $800 a month, and then if
you work out successfully, they'll raise you to $1000 a
month." Kennedy told Wilson to go out there and check
on it, but not to say anything to Lewellen about it. Wilson
said that he would go down there the next day, Saturday.16
Wilson was unwilling to accept a job for an employer
which was having labor trouble with the Teamsters, and he
had heard that Central Beverage was having such difficul-
ties, but he went down there the following day on the
chance that the picket line had been removed. It was still
there, and Wilson did not apply for the job at that time.
The following Monday, February 18, he told Kennedy that
he had gone out to Central Beverage and checked it out,
Wilson's assertion in that affidavit (corrected in a later affidavit) that this
incident occurred about November 13.
14 My findings as to the date and contents of this conversation are based
to a significant extent on Kennedy 's admissions during cross-examination,
when inspection of his prehearing affidavit led him to modify to
Respondent's prejudice some of his previous testimonial assertions.
Kennedy initially testified that this conversation occurred about mid-
January (rather than in early February, 2 weeks closer to Wilson's
discharge), and initially gave the somewhat unlikely testimony that Central
Beverage's representative merely asked Kennedy to send someone who
might be "interested" rather than to "recommend" someone . These efforts
to improve Respondent's case seriously reflect on his credibility.
15 Kennedy denied having done this or having made this representation
to Wilson. However, Kennedy conceded telling Wilson that "ifhe needed
references over there, [Kennedy ] would be happy to talk to the man for
him." While I accept Wilson's version of this conversation (infra, fn. 16),
and infer therefrom that Kennedy did in fact recommend Wilson to Central
Beverage for the vacancy, the results herein would be the same even
accepting Kennedy's testimony described in this footnote.
16 My findings as to this conversation are based on Wilson's testimony.
For the reasons' summarized supra, fn. 14, and in view of the witnesses'
demeanor, I credit Kennedy's version only to the extent it is corroborated
by Wilson. The February 14 date testified to by Wilson gains some support
from the uncontradicted evidence regarding Lewellen 's postdischarge
remarks to Wilson.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but "didn't want to get involved in labor trouble with the
Teamsters, because I'm a Teamsters man." 17
3: Events immediately preceding and following
Wilson's discharge
Kennedy and Richardson both testified that the decision
to discharge Wilson was made prior to February 19. On the
morning of that day, Wilson brought down to the plant a
rough draft of a petition to the Equal Employment
Opportunity Commission. 'S Between the time Wilson
reported to work at 10:30 that morning and 12 noon,
Wilson showed the petition to six employees who agreed to
sign it-, without borrowing it, and two more who each
borrowed it for a considerable period before returning it
with an agreement to sign it.19
In the afternoon of Tuesday, February 19, the end of a
payroll veriod, Kennedy discharged Wilson in an interview
whose contents are discussed infra. As Wilson was leaving
the premises , he told Redemption Center Manager Pratz
that Wilson would "file Federal charges against the
Company, because they fired [him] because of [his] taking
part in union activity." There is no evidence that Pratz
made any reply.
The= following day, Wilson returned to the plant to turn
in his uniforms, obtain his paycheck20 and his vacation
paycheck; and clean, out his locker. While he was cleaning
out his locker, he told Kennedy, "Jim, you know this is not
right. You're firing me because I took an active part in
trying to organize, that union .... You said I'm over-
qualified to do building maintenance work, when I don't
have a license as an electrician or plumber or carpenter or
painter or anything. You're firing me because I took part in
that union." Kennedy replied, "Hal, I don't have any
comments to make about it." Wilson then went to
Lewellen and said, "Lew, this is not right. Jim Kennedy
fired me because I took part in that union." Lewellen as ked
whether he had gone out to Central Beverage and checked
on that job as "assistant warehouse manager." Wilson
asked how he knew about that job, and said that Kennedy
had told Wilson to be sure not to tell Lewellen about it.
Lewellen said that he had known about the job for several
weeks . Wilson said, "Lew, you going to stand behind Jim
Kennedy and fire me for this?" Lewellen replied, "I've got
to go along with him." 21
17 My findings as to the contents of this conversation are based on
Wilson's testimony. On the basis of the witnesses' demeanor and Kennedy's
demonstrated efforts to misrepresent other aspects of the Central Beverage
matter (supra, fn. 14), I credit Kennedy's version of this conversation only to
the extent it is corroborated by Wilson.
18 The bottom of this 'rough draft contained a notation that copies were
also to be sent to the NLRB and the United States Department of Labor.
19 No contention is made that Wilson's discharge was motivated by this
activity, which occurred after Respondent (according to its witnesses)
decided to discharge him. After his discharge, Wilson arranged for the
typing of separate petitions addressed to the EEOC, the United States
Department of Labor, and the NLRB, and obtained employee signatures
thereon . Respondent's counsel stated at the hearing that Wilson's activity in
connection with the petitions had "no bearing on" the instant proceeding,
except to explain 'the 2-month interval between his discharge and his filing
of the NLRB charge. However, Respondent 's brief suggests that "his lack of
attention to his job is illustrated" -by this February 19 activity, which
occurred after Respondent assertedly decided to discharge him and is not
shown to have interfered with his job performance that day. Indeed, the fact
Wilson then went to Company President Willie and said,
"Mr. Willie, this is not right. The Company's firing me
because I took an active part in that union back there, and
I've always tried to do a good job for this company. I've
did building maintenance work, warehouse work; anything
you assigned, me to do I tried to do a good job." Willie
replied, "You're right, Hal, you're one of the best
employees that's ever worked for this company," but, "I'm
going to tell you, the supervisors back there, none of them
like you, because, they think you know more about running
this warehouse than they do, and they want to get rid of
you; and I've got to go along with them." Willie then said,
"I'll tell you what, if you'll go somewhere else and get you
a good job, then you put me down as a personal reference.
Don't list anyone else here in this company except me, and
I'll give you the highest recommendation, that you're one
of the best employees that's ever worked for this company.
But Hal, don't fight it and cause us any labor troubles. Will
you do that for me?" Wilson replied, "I'm going to have to
think about that, because this is wrong." At some time
during this conversation, Willie said that he had watched
Wilson working.22
Wilson thereupon left the premises.
C. Wilson's Preelection Conversations With
Lewellen and Kennedy
Wilson testified that, during the first week in November,
Lewellen "again offered me the job as a TV monitor at the
new warehouse when they built it. And he asked me, he
said, `Hal, we don't need a third party to represent the
employees for the Company here, and you should vote
against the Union. And the job will be yours,when we
move into the warehouse; the new warehouse.' " In
contending that I should find that no such conversation
occurred, Respondent points to the following testimony by
Wilson on cross-examination:
Q. Do you ever recall having a conversation with
Mr. Kennedy or Mr. Lewellen in which you told them
that you had checked out the-either the Brewery
Workers or the Union-where the Union's claims by
going over to Schlitz Distributor Company, beer
distributor company, and the S. H. Lynch Company
that distributes Schlitz beer, and had looked at their
that Wilson did not punch in until 10 : 48 suggests that some of his petition
activity occurred on his own time.
20 Wilson's check included payment for a full day's work on February
19, although Kennedy had rejected Wilson's offer to finish the shift and
required him to leave immediately after his midafternoon termination.
21 My findings in this paragraph are based on Wilson's uncontradicted
and credible testimony . Kennedy and Lewellen were not asked about these
conversations.
22 My findings in this paragraph are based on Wilson's credited
testimony. Willie conceded that he offered to give Wilson a good reference,
an offer which Willie testified he always makes to all dischargees. Willie
further testified that Wilson alleged that he had been fired for being "over-
competent" and had been reprimanded by one supervisor because he
applied to "Pearl" for a "head warehouse" manager's job which another
supervisor had told him about. Willie testified that he had been "surprised"
by this first statement, but made no comment about either of them. On the
basis of the witnesses' demeanor and the uncontradicted evidence regarding
Willie's similar prior compliments about Wilson 's work, I credit Willie's
version only where corroborated by Wilson.
WILLOWBROOK, INC. 385
agreement? And that you had concluded that this
union wasn 't all that it was cracked up to be?
Did you ever make any statements like that to any of
them?
A. Yes, sir.
Q. And, when was that done, approximately?
A. Approximately in October.
Q. This was after-
A. After the hearing in Fort Worth [on October 16,
19731.
Q. Did you ever make any statements to either one
of them that (Mr. Lewellen or Mr. Kennedy) that
subsequent to the time you told them it wasn't all it was
cracked up to be; did you ever make any statements to
them that you were still supporting the Union?
[Emphasis supplied.]
A. No, sir.
Respondent contends that Wilson's testimony is im-
peached in this respect, and is thereby drawn into question
generally, by his testimony on rebuttal about a conversa-
tion with Kennedy after he had seen Wilson receive a
check from the Union to compensate him for his pay loss
due to his absence from work to testify for the Union at the
representation case hearing. Wilson testified that he told
Kennedy, "Jim, I've already been over to Schlitz Beer
Distributors, and I have checked their contract, and the
employees over there don't make as much money as
warehouse personnel make here . . . I don't think they've
got a good contract, but if the Union comes in here, and if
I should be elected as a shop steward or anything, I will try
to see that we have a better contract here than the one
they've got over there"; and that Kennedy replied, "If
that's the way you feel about it." Wilson further testified
on rebuttal that he had never discussed the Schlitz contract
with Lewellen or any other supervisor except Kennedy.
Respondent's impeachment contention assumes that Wil-
son's rebuttal testimony regarding his conversation with
Kennedy dealt with a different conversation than did his
testimony on cross-examination. I regard this assumption
as unwarranted; 'Wilson was asked on cross-examination
whether he had such a conversation with Kennedy or
Lewellen, and Kennedy testified that such a conversation
took' place.23 Nor do I regard as reflecting on Wilson's
credibility the fact that this conversation with Kennedy
was not set forth in his pretrial affidavits-an omission
which Respondent did not ask Wilson to explain. Kenne-
dy's statements on this occasion are not claimed to
constitute an unfair labor practice, and counsel for the
General Counsel asked Wilson about this conversation in
an effort to negate Kennedy's testimony (supra, fn. 23) that
Wilson then expressed disenchantment with the Union.
On the basis of the witnesses' demeanor, I credit
Wilson's testimony, quoted at the beginning of this section
II, C, about his conversation with Lewellen regarding the
TV monitor's job and Wilson's vote at the representation
election; and, I discredit Lewellen's testimony, set forth in
the attached footnote, about his conversations with
Wilson.24 While it is true that Wilson had said 6 months
earlier that he was not interested in that jib, Respondent
might well have had nothing better to offer him and have
hoped that he had changed his mind in the meanwhile. Nor
am I persuaded by Respondent's reliance on the Brewery
Workers failure to file objections to the election. Assuming
that the Brewery Workers found out about this incident
early enough to file timely objections (although there is no
evidence that the Brewery Workers ever found out about it
at all), the Brewery Workers may well have felt that the
overwhelming vote against it made a rerun election futile.
Further, in view of the witnesses' demeanor and the defects
in other aspects of Kennedy's testimony (supra, fns. 8 and
14; infra, Sec. II, D), I believe Wilson's version of his
conversation with Kennedy about the Schutz contract, and
discredit Kennedy's.
D. The Discharge Interview and Related Matters
1. Testimony regarding the contents of the
discharge interview
Three persons were present during Wilson's termination
interview on February 19, 1974-Wilson, Kennedy, and
Richardson. Each of them tendered different versions of
what was said. Wilson testified:
[Kennedy] said, "Hal, you're not happy in your
work; you're over-qualified to do building maintenance
work and warehouse work, and you should be in
management with some other company." I said, "No,
Jim, I'm happy right here, and I want to stay here at
Willowbrook because it's in walking distance of home,
and I think it's the best company to work for, and I
want to stay here."
He said, "No, we want you to go someplace else." I
said, "Does that mean I'm being fired?" He said, "If
you want to put it that way, yes, you're fired now." I
said, "The payroll period ends tonight. Can I stay and
finish out the shift?" He said , "No, you're fired now."
Said, "Come in in the morning and pick up your
checks, turn in your uniforms." Said, "I would get your
checks today, but the girl that makes out the checks,
she's sick and won't be here today, so come in in the
morning."
13
Q. [By Mr. Carsey ] What-was anything else said
during the conversation?
A. Not at that time. I told them I would come in in
the morning.
Q. Did Mr. Richardson say anything?
A. No.
23 Kennedy's version was, "He told me that after going over and looking
over the Schlitz contract and talking to some of the people over there, that
he had changed his mind about unions, and he thought ... Willowbrook
employees were better off than Schlitz employees were."
24 Lewellen testified that he did not "recall" any conversation with
Wilson about the TV monitor's job, but admitted that installation of a
monitor system had been "talked about." Lewellen further testified that he
had only one conversation with Wilson about the Union, during which
Wilson said that the Schhtz contract called for lower benefits than
Respondent was already paying and Lewellen replied that this was strictly
up to Wilson. In view of the witnesses' demeanor, I credit Wilson's denial
that he ever discussed the Schlitz contract with Lewellen.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On direct examination, Richardson testified, without
specifying who made such remarks, that "it was [Wilson's]
failure to learn how to operate a forklift, his failure to want
to do the things he was supposed to do: the cleaning up
and unloading the trucks and such as that . . . he just
wanted to` do things different than what we needed him
for." On cross-examination, Richardson testified:
Q. [By Mr. Carsey]: Did Mr. Kennedy mention
anything about Mr. Wilson being over-qualified during
the termination conversation?
A. No sir.
Q. He didn't? Did Mr. Kennedy discuss Mr.
Wilson's being over-qualified for the job?
A. Yes, sir. I'll tell you the background on how that
came up. Mr. Kennedy told him, said, "Hal, you're just
not-don't fit in. You're not doing the things we
require to be doing. And you might be more capable
fording a job that you're interested in somewhere else."
And Hal said, "You mean I'm over-qualified?" And
that's not what he meant. He meant that he might ford
something more to his interest somewhere else. Because
he wasn't interested in doing what we had for him to
do.
Q. Mr. Kennedy told him that?
A. Yes, sir.
He was definitely not over-qualified to be a forklift
operator or cleanup man even.
Q. But he-Kennedy told him that he wasn't
interested?
A. That's right.
Q. Did Mr. Wilson mention anything about union
discrimination?
A. Not that I can recall,, sir.
Q. Did he mention anything about racial discrimi-
nation during that conversation?
A. No, sir.
On direct examination, Kennedy testified:
A. Well, after we got into the office, I told him why
he was brought in, and that I felt that he wasn't doing
the job for the Company that he should be doing; and I
let him go.
Q. [By Mr. Crawford] Did you tell him anything
about him being over-qualified?
A. No, sir.
Q. Did that word come up, as you recall?
A. Yes, sir, it came up a couple of times.
Q. Would you tell us how that came up?
A. Mr. Wilson asked me two or three different
times if I was firing him because he was over-qualified.
So, I told him I was not.
Q. All right.
Would you tell us whether or not you made any
statement to him concerning that he might be-
MR. CARSEY: I object, Your Honor. This is a leading
question. ,
JUDGE S Rss : I think it is. Why don't you simply
ask the witness just what was said by who?
MR. CRAwFoRD: I have no further question.
On cross-examination, Kennedy testified:
Q. [By Mr. Carsey] You say that Mr. Wilson was
terminated because he didn't seem satisfied. Did you
tell him that during the discharge conversation, on the
day you fired him?
A. I don't recall whether I made that specific-
Q. Tell me everything you remember about who
said what on that Tuesday afternoon when he was
discharged.
A. That's been a long time ago, you know.
Q. Just what you remember.
A. I remember telling him that he wasn't progress-
ing as I felt he should in learning to operate the forklift.
Yes, I believe him not being happy or satisfied,
whichever word was used, was discussed at that time.
About him being too slow with his maintenance work
and not being happy with the salary he was making.
Q. Did you talk about anything else? Did you talk
about the attitude?
A. I don't recall it.
Q. Is that what you were talking about, his
dissatisfaction?
A. Yes, that would probably be covered by his not
being satisfied; his attitude towards the job or jobs that
he was doing.
Q. What else did you discuss with him during that
conversation?
A. I don't recall the entire conversation. I've tried
to cover everything that we discussed. I don't know
whether I've covered it all or not. But the one thing that
I recall is Mr. Wilson asking me several times if I was
firing him because that he was over-qualified?
Q. I see. And what did you reply.
A. No.
The substantial lack of overlap between Richardson's
and Kennedy's versions casts doubts on the reliability of
both. Thus, Kennedy alone testified that he told Wilson he
was unhappy with his salary and was too slow with his
maintenance work. On the other hand, Richardson alone
testified about a reference to Wilson's alleged reluctance to
unload trucks and to clean up. The veracity of their
testimony about the contents of the discharge interview is
further drawn into question by an analysis of the evidence
bearing on the reasons assertedly then tendered for
Wilson's discharge.
2. Wilson's alleged refusal to perform cleanup
work
The evidence bearing on Wilson's alleged reluctance to
perform cleanup work centers on Richardson's and
Kennedy's testimony relating to a single alleged incident.
Richardson testified that this incident occurred about a
month prior to Wilson's February 19, 1974, discharge, and
that after working 6 or 7 hours, Wilson punched out about
an hour or an hour and a half before the others rather than
obey instructions to perform such work. Both Richardson
and Kennedy conceded that they had previously dis-
charged on the spot other employees who had engaged in
like conduct. Richardson was given an opportunity to
WILLOWBROOK, INC.
inspect Wilson's timecards from October 31, 1973, to his
February 1974 discharge, but Richardson testified that he
would not be able to determine the date of this alleged
incident without inspecting the other employees' timecards
too-which Respondent unexplainedly failed to produce.
Wilson's timecards for this period show that he worked as
few as 7 hours on only one day-Saturday, January 5,
1974, when he worked until shortly before noon. Richard-
son testified that this incident occurred near the end of the
day, and he did not testify that it occurred on Saturday,
when Wilson normally did not work.
Wilson initially acceded to the suggestion of counsel for
the General Counsel that on this occasion Wilson refused
to do "sweeping or something"; then testified that "That
evening we were cleaning the floors"; then added, "and
walls, all around the office. There was some mildew on the
walls"; and then again acceded to the suggestion of
counsel for the General Counsel that Wilson refused to
clean up the floor. When asked why these operations were
being performed that evemng,Richardson replied,"Because
we had time to do it." However, when then asked
whether it had been done that morning, he conceded that
the floors probably had, and that they would be cleaned
again the next morning if necessary.
Richardson testified that on the following morning he
reported this incident, which according to him occurred
about January 19, to Kennedy, who dated this alleged
report as about February 5. Kennedy testified that when he
asked Wilson why he did not want to stay around and do
cleanup work like everyone else, Wilson replied that he did
not feel that he was a janitor, and that "he'd rather punch
out than do cleanup work, that we had niggers hired to do
that." The uncontradicted evidence shows that Wilson had
been regularly performing cleanup work during his 1-1/2
years on the job, and that he had engaged in extensive
efforts to correct what he believed to be discrimination by
Respondent against his Negro fellow workers. Kennedy at
first tacitly accepted the description of counsel for the
General Counsel that Wilson had refused to "sweep the
floor," but then stated that the cleanup work in question
was "Working in the offices and restrooms, I believe ... .
Cleaning walls, if I'm not mistaken."
In view of the inconsistency between Wilson's timecards
and Richardson's testimony regarding this incident;
Respondent's failure to discharge Wilson at the time,
although both Richardson and Kennedy had previously
discharged other employees summarily for "this type of
insubordination"; the inconsistency between Wilson's
alleged reply to Kennedy's alleged complaint and Wilson's
other conduct as shown by uncontradicted evidence;
Richardson's and Kennedy's uncertainty about the kind of
work involved and their inconsistent testimony about the
date of this alleged incident; Wilson's uncontradicted
testimony that Respondent had subcontracted wall-wash-
ing and cleaning the offices and restrooms to a janitorial
service; and the witnesses' demeanor, I discredit Richard-
son's and Kennedy's testimony about this alleged incident.
2a These, forklifts had a different loading mechanism from those used by
Respondent. However, Kennedy testified that Wilson's difficulties with the
electric forklift involved steering it
26 In May or June 1973, Wilson showed these instructions to Lewellen
387
Rather, I believe Wilson's testimony that no such incident
ever occurred. Accordingly, I do not believe Richardson's
testimony, uncorroborated by either Kennedy or Wilson,
that reluctance to clean up was a reason tendered for
discharging Wilson.
3. Wilson's alleged deficiencies in connection with
the electric forklift
The record contains considerable evidence bearing on
Wilson's alleged inability to operate the electric forklift
and his alleged failure or refusal to learn how-a matter
alluded to in both Richardson's and Kennedy's versions of
the discharge interview. It is undenied that on several
occasions in the summer of 1973 Kennedy complimented
Wilson's operation of the electric forklift-Wilson "didn't
hotrod the forklift like thee other drivers, but [he] never
damaged any beer [cans], and that meant more to a
company than trying to speed up and hotrod the forklift
and damage the beer [cans ]." Moreover, Richardson
identified the 2 or 3 months prior to Wilson's discharge as
the period when he would do anything else other than learn
how to operate the forklift; whereas Kennedy testified that
during this very period Wilson started training on the
forklifts a little more than he had previously. Furthermore,
Richardson testified that the employees were supposed to
learn how to operate the electric forklift during "slack
time"; whereas Kennedy testified that "it wasn't usually
done in slack time, practicing. It was done, actually doing
the work." Also, Kennedy testified on direct examination,
and initially testified on cross-examination , that a new
employee is put with an experienced electric forklift
operator who was supposed to help him learn, and (on
cross-examination) that Wilson was assigned to Hayes or
Green, probably Green; but then testified that the
employees "weren't assigned an individual tutor. If I left
that impression, I didn't mean to," and that any experi-
enced operator might give the new employee pointers.
Further, it is undenied that when working as a warehouse
manager elsewhere, with 40 or 50 people under him,
Wilson had trained employees how to use the electric
forklifts 25 and drew up some instructions on the subject 26
For these reasons, and on the basis of the witnesses'
demeanor, I believe Wilson's testimony that he operated
the electric forklift without incident when the occasion
arose (that is, when the two regular forklift operators on
the shift were both occupied), and discredit the testimony
of Richardson and Kennedy that Wilson almost never
actually loaded beer cans with the electric forklift because
he had trouble steering it and either could not, or did not
really try to, learn how to run it. For similar reasons, I
discredit Kennedy's and Richardson's testimony (credibly
denied by Wilson) that they expressed dissatisfaction to
him about the forklift matter ; and their testimony that
Richardson complained to Kennedy about Wilson's
alleged deficiencies in this respect 27 Accordingly, I
discredit Kennedy's and Richardson's testimony, denied
and Kennedy and suggested that Wilson set up a training program to teach
warehouse personnel how to operate a forklift. The proposal was rejected at
least partly on expense grounds.
27 After Richardson testified that he had expressed dissatisfaction to
(Continued)
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Wilson, that the forklift matter was mentioned during
the termination interview.
4. Wilson's alleged slowness and his alleged
reluctance to unload trucks
Richardson and Kennedy both testified that Wilson
spent an unnecessarily long time performing various
maintenance projects, and Richardson testified that Wil-
son performed maintenance work when he was needed for
what Richardson regarded as the more urgent task of
unloading trucks. Richardson testified that the "best
example" of Wilson's slowness was- an incident where
Wilson took over a week to install one protective
sheetmetal plate on a wall and, after Wilson's discharge,
another employee installed the remaining plate in an hour
and a half. However, on rebuttal Wilson credibly testified
without contradiction that he had to order and pick up the
plates and that before putting up the first plate, he had to
repair a hole in the wall by removing broken concrete
blocks, procuring cement and new blocks, mixing the
cement , resetting the blocks, and letting the cement set for
a day or two. He further credibly testified without
contradiction that the portions of the wall covered by the
other plate were undamaged. In, view of Richardson's
deliberately misleading failure to mention these factors
(particularly Wilson's need to repair the wall), Richard-
son's and Kennedy's demeanor, and the other deficiencies
in their testimony discussed supra, I do not believe their
testimony in this respect, or their testimony that from time
to time they complained to Wilson about these matters, or
their testimony that Richardson complained to Kennedy
about them (see supra, fn. 27). Rather, I credit Wilson's
testimony that Kennedy always accepted Wilson's expla-
nation for why particular projects took longer to complete
than Kennedy would have liked, and that Wilson received
no criticisms from management about the matter. Accord-
ingly, I discredit Kennedy's testimony, uncorroborated by
Richardson or Wilson, that Kennedy told Wilson during
the discharge interview that he was too slow with his
maintenance work.
5. The alleged evaluation form
Kennedy testified that on August 30, 1973, he filled out
an "employee evaluation form" covering Wilson's employ-
ment from March 1 to September 1, 1973. He identified
Respondent's Exhibit 5 as constituting this form. Kennedy
testified that he filled out this form in pencil and reviewed
it with Wilson. Kennedy and Lewellen both testified that
Kennedy then reviewed the form with Lewellen, who
suggested that he trace over the penciled entries in ink
because the form was going into a permanent file. The
blanks beside the words on the exhibit "Report by" and
"Reviewed by" are not filled in; nor does Respondent's
Exhibit 5 contain any signatures.
Kennedy with Wilson's work since about July 1973, and Kennedy testified
to such complaints from Richardson since about September 1973, Kennedy
admitted that in early February 1974 he offered to recommend Wilson for a
warehouse or assistant warehouse manager's job with another firm.
2s Wilson's average grade for the factors marked was about 3.7, within
the "fair" range. Wilson is marked "2" ("poor" is 1-2) beside the factor
I credit Wilson's denial that he ever saw-or discussed this
alleged report and, therefore, find that it was prepared for
the,-purpose of concealing Respondent's real reason for
discharging Wilson. The uncontradicted evidence estab-
lishes that during the period covered by this alleged report,
Wilson received compliments about his work from both
Kennedy and Lewellen, as well as Company President
Willie, General Sales Manager Mozarelli, Assistant Ware-
house Manager Richardson, and then General Manager
Hayes; and the credited evidence shows that during this
period Wilson was promised a job in Respondent's
management. Such evidence renders inherently unlikely
both the below-average rating on the face of the alleged
report,28 and Kennedy's testimony that his review with
Wilson was "Not long. We just went through it hurriedly,"
notwithstanding such prior compliments from Kennedy
and others and Kennedy's testimony that he had reviewed
similar forms with other employees for as long as 45
minutes. Moreover,, although Kennedy testified at the
December 1974 hearing that he had `prepared- similar
evaluations with respect to all employees on September 1,
1973, March 1, 1974, and September 1, 1974, and Lewellen
testified that Respondent still retained all 'these alleged
'filled out forms in its personnel files, Respondent did not
produce any of such other alleged forms after Wilson
testified that none of the other employees had ever said
anything to him about supervisors' discussing any person-
nel evaluations with them-testimony by Wilson which I
therefore credit.
6. Wilson's alleged complaints about his pay -
Kennedy testified that Wilson complained about his pay.
In view 'of Kennedy's failure to describe the time, place,
and circumstances of such alleged complaint or com-
plaints, Kennedy's, unreliability as a witness in other
respects, and the witnesses' demeanor, I credit Wilson's
testimony that he never complained about his pay.
Accordingly, I discredit Kennedy's testimony, uncorrobo-
rated by Richardson or Wilson, that Wilson's alleged
dissatisfaction with his pay was mentioned during, the
termination interview.
7. The alleged keg-truck incident
Finally, on the basis of the witnesses' demeanor and
Richardson's unreliability as a witness in other respects, I
'discredit Richardson's testimony that on one occasion,
whose date he did not give, Wilson was helping a forklift
driver unload a keg truck, in Richardson's opinion to avoid
having to unload a package' truck by hand, and was
reluctant in obeying Richardson's order to help unload the
package truck. Rather, I credit Wilson's denial that this
incident occurred, and his testimony that he in fact
preferred unloading package trucks to unloading keg
trucks. Accordingly, I discredit Richardson's testimony,
uncorroborated by Kennedy or Wilson, that Wilson's
"uses time efficiently," with a penciled entry (never inked in) "Extremely
Slow." Kennedy testified that he "possibly" or "probably" made this entry
while he was going over it with Wilson , but did not really remember.
Lewellen could not "truthfully" recall whether this entry was on the -form
when he saw it.
WILLOWBROOK, INC. 389
alleged unwillingness to help unload was mentioned at the
termination interview.
8. Conclusions
For the foregoing reasons, I credit Wilson's version of his
termination interview and discredit the respective versions
given by Kennedy and by Richardson. Also for the
foregoing reasons, I credit Wilson's testimony that he never
complained about his work and was never criticized about
it and discredit all contrary testimony of Kennedy and
Richardson. Nor do I believe Lewellen's testimony that
beginning about November 1973 Kennedy "periodically"
complained to Lewellen about Wilson's work. I rely on
Kennedy's failure to corroborate Lewellen's testimony in
this respect, the absence of credible testimony that
Kennedy complained about Wilson's work to anyone else,
and Lewellen's demeanor. Also, on the basis of the
witnesses ' demeanor, the absence of credible evidence that
Kennedy had previously complained about Wilson's work,
and Kennedy's admission that about February 5 he offered
to recommend Wilson for a management job with another
firm, I do not believe Kennedy's or Lewellen's testimony
that a day or two before Wilson's February 19 discharge,
Kennedy told Lewellen that Kennedy wanted to discharge
Wilson for lawful reasons and Lewellen acceded on the
basis of this representation.
E. Analysis and Conclusions
1. The alleged independent violation of Section
8(a)(1)
The credited testimony shows that during the first week
in November, Lewellen offered Wilson the TV monitor's
job at a new warehouse to be constructed, and said, "we
don't need a third party to represent the employees for the
Company here, and you should vote against the Union.
And the job will be yours when we move into . . . the new
warehouse." I agree with counsel for the General Counsel
that Lewellen thereby impliedly promised this job to
Wilson if he voted against the Union, and impliedly
threatened that he would not receive the job if he voted for
the Union. Accordingly, I conclude that this statement
constituted a violation of Section 8(a)(1) of the Act.
2. The discharge of Wilson
The evidence summarized supra establishes that Respon-
dent opposed the advent of the Brewery Workers, on
whose behalf Wilson had campaigned. After Wilson had to
management's knowledge testified for the Brewery Work-
ers, Lewellen sought to procure Wilson's vote against it by
offering him a better job if he voted against the Brewery
Workers and threatening that he could not obtain that job
if he voted for the Brewery Workers. However, at or about
the same time Wilson told Kennedy that if the Brewery
Workers won the election and Wilson were selected as
shop steward (a not unlikely choice, in view of Wilson's
leadership in the union activity), he would try to get a
contract better than the Brewery Workers contract with
Schhtz. About 3 months after the Brewery Workers lost the
election, and the day after Wilson advised Kennedy that
Wilson's Teamsters sympathies had deterred him from
pursuing a management opportunity elsewhere at a
substantial raise, Kennedy discharged Wilson. Kennedy
told Wilson not only that he was "over-qualified" for the
job he had held for 18 months without any criticism from
management, and that he was "not happy in [his] work"
(although Wilson then replied that he was "happy" and
wanted to stay, and although he had never complained
about it), but also that he "should be in management."
This last consideration would appear to militate in favor of
efforts to keep Wilson, in view of the new warehouse under
construction, but Kennedy stressed that Respondent
wanted Wilson's "management" job to be with "some
other company . . . someplace else," and did not even
permit him to finish out the full shift for which Wilson was
later paid. When Wilson asserted that union activity was
the real reason for his discharge, Pratz did not deny this,
Kennedy refused to comment, Lewellen said he had to go
along with Kennedy, and Willie said he had to go along
with the others even though Wilson was one of the best
employees who ever worked for Respondent. Willie added
that he would give Wilson "the highest recommendation,
that you're one of the best employees that ever worked for
this company. But Hal, don't fight it and cause us any
labor troubles." Kennedy discharged Wilson 2 weeks after
admittedly offering to recommend him for an assistant
warehouse manager's job with another firm. Moreover, the
evidence (mostly undisputed, and to a significant extent
corroborated by Respondent's own witnesses) establishes
that prior to early November 1973, Wilson's work had been
complimented by Company President Willie, Operations
Manager Lewellen, General Manager Hayes, Warehouse
Manager Kennedy, and Assistant Warehouse Manager
Richardson; and that Kennedy and Redemption Center
Manager Pratz had told Wilson that eventually he would
likely receive a position in management. Further, at the
hearing Respondent's witnesses gave untruthful testimony
about alleged deficiencies which were not mentioned to
Wilson when he was discharged.
On the basis of the foregoing evidence and the record as
a whole, and in view of Kennedy's demeanor, I do not
believe his testimony that he discharged Wilson solely for
reasons unrelated to his union activity.29 Rather, I am
persuaded that the record preponderantly shows that
Wilson's discharge was motivated by his activity on behalf
of the Brewery Workers and, therefore, violated Section
8(a)(3) and (1) of the Act. While it is true that 3 months
elapsed between the Brewery Workers loss of the Novem-
ber 1973 election and Wilson's February 1974 discharge,
Respondent had no reason for speed, because Section
9(e)(2) of the Act precluded another election until
November 1974.
29 When asked why he terminated Wilson, Kennedy testified:
Well, there were several reasons. He was extremely slow. He
didn't-he wasn't progressing in the type work we had for him. He
didn't seem to be satisfied; always wanting to do something besides the
type work that we had. He wanted to do maintenance work and he
complained that the pay wasn't enough for maintenance work. He said
he'd rather do that than what we wanted him to do (the incident about
not wanting to do cleanup work) I don't remember all the reasons, but
those were some of them.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW before it could obtain another, Respondent's unlawful
conduct leads me to anticipate that unless restrained, it will
engage m "continuing and varying efforts to attain the
same end in the future" (N.L.RB. v. Express Publishing
Company, 312 U.S. 426, 437-439 (1941)). Accordingly, I
shall recommend that Respondent be required to cease and
desist from infringing on employee rights in any other
manner. N.LRB. v. Southern Transport, Inc., 343 F.2d 558,
560-561 (C.A. 8, 1965). I shall also recommend that
Respondent be required to offer reinstatement to Wilson,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
would have earned from the date of his discharge to the
date of a valid offer of reinstatement less his net earnings
during this period, to be computed in the manner described
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as described in Isis Plumbing & Heating Co., 138 NLRB
716 (1962). In addition, I shall recommend that Respon-
dent be required to post appropriate notices. Because
Respondent's business is located in an area where Spanish
is many people's native language, and because the record
affirmatively shows that at least one of Respondent's
employees is Mexican-American, the notices shall also be
posted in Spanish should the Regional Director determine
that any of Respondent's employees will find them easier
to understand than notices in English.
[Recommended Order omitted from publication.]
1. Respondent is engaged in commerce within the
meaning of the Act.
2. The Brewery Workers is a labor organization within
the meaning of Section 2(6) and (7) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by promising employee Hal C. Wilson enhanced job
opportunities if he voted against the Brewery Workers, and
threatening him with loss of job opportunities if he voted
for it.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employee Wilson because of his
activities on behalf of the Brewery Workers.
5. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because Respon-
dent's unfair labor practices included the discriminatory
discharge of an employee leader in the Brewery Workers'
organizing campaign, an unfair labor practice which "goes
to the very heart of the Act" (N.L.R.B. v. United Mineral &
Chemical Corporation, 391 F.2d 829, 837-838 (C.A. 2,
1968)), and because this discharge took place after the
Brewery Workers had lost a representation election and