Anderson Plumbing and Heating Co.

National Labor Relations Board - Board Decisions

Apr 19, 1973

203 N.L.R.B. 18 (N.L.R.B. 1973)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert M . Anderson, an Individual Proprietorship
d/b/a Anderson Plumbing and Heating Company
and United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States & Canada, Local 412, AFL-CIO.
Case 28-CA-2619
April 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On November 28, 1972, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a "Brief in Answer to Respondent's Exceptions."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) by
briefly posting new work rules on April 10, 1972, and
by coercively interrogating employee Spitzer on April
20; violated Section 8(a)(3) and (1) by locking out
employees on April 20; and violated Section 8(a)(5)
and (1) by posting unilaterally promulgated work
rules on April 25.
2. We also agree with the Administrative Law
Judge's conclusion that Respondent discriminatorily
discharged 2 six employees on April 28, 1972,' but do
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
r-solutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
eafd 188 F .2d 362 (C.A. 3) We have carefully examined the record and find
no basis for reversing his findings
2 Chairman Miller , concurring in the result, would not adopt the Adminis-
trative Law Judge 's rationale that since the employees were discharged for
not complying with a rule unlawfully promulgated under Sec . 8(a)(5) and (1)
of the Act, their discharges were ipso facto violative of Sec . 8(aX3) and (1)
of the Act. He would, instead, fird the discharges to be in violation of Sec
8(axl), since the record supports the Administrative Law Judge 's finding that
the employees clearly were engaged in protected concerted activity when
Respondent discharged them.
a Contrary to the implication of our dissenting colleague , we do not find
that the discriminatory discharges of these employees resulted ipso facto
because they had not complied with a rule violative of Sec. 8 (aX5) The
Administrative Law Judge found , and we agree , that the rule imposed
changed working conditions unilaterally upon the employees I week after the
not agree with his further finding that Respondent's
subsequent offer to reinstate them was conditional.
The record shows that shortly after the employees
were discharged, Respondent spoke with them about
"if we were going to act like men or boys" and stated
that they could all come back to work, except Spitzer.
From these facts, the Administrative Law Judge
found that Respondent's offer of reinstatement was
conditioned on the employees' acting "like men and
not boys" and inferred that this condition meant that
the employees must comply with one of the unlawful-
ly promulgated work rules; i.e., the rule requiring the
loading of trucks on their own time. The Administra-
tive Law Judge, accordingly, concluded that the em-
ployees remained dischargees and recommended a
make-whole order.
We do not agree that Respondent's offer to five of
the six discriminatees was conditional and, conse-
quently, we do not adopt the recommended remedy.
Instead, we find that Respondent's vague reference to
acting like men and not boys set no specific precondi-
tions to returning to work, nor does the record reveal
that it was understood by the employees as imposing
any conditions upon their reinstatement. The sole rea-
son the employees gave for not accepting the rein-
statement offer was that Respondent was unwilling to
reinstate one of their group, Spitzer.4 Under these
circumstances, we conclude that Respondent's rein-
statement offer was unconditional and constituted a
valid offer to return to work.
We, agree, however, with the Administrative Law
Judge's conclusion that Respondent's refusal to offer
reinstatement to Spitzer was not justified by Spitzer's
earlier argument with Superintendent Pohl over
whether the latter was responsible for breaking
Spitzer's thermos bottle, while closing the gate to the
yard, in the course of discharging the employees be-
cause of their failure to comply with the requirement
of loading their trucks on their own time. Spitzer's
conduct, while not to be condoned, was understanda-
ble in the light of his just having been unlawfully
discharged, an event that for him was agravated by his
having his thermos bottle broken in the process. His
ensuing argument with Pohl in no way harmed or
inconvenienced the Respondent. Nor do we believe
that in the event of his reinstatement the strain created
in his relations with Pohl by their argument would,
with the passage of time and cooling of tempers, nec-
essarily persist so as to lead to possible disruption of
Respondent's operations . In these circumstances, we
Union 's certification and that their discharges for noncompliance with the
new rule in these circumstances tended to discourage membership in the
Union
" Respondent apparently refused to reinstate Spitzer on the advice of his
superintendent , who was still irritated over an argument he had with Spitzer
that morning.
203 NLRB No. 5
ANDERSON PLUMBING AND HEATING CO.
find that Spitzer's argument with Pohl was not of such
a serious nature as to warrant departure from the
Board's normal remedial order.' Accordingly, as Spit-
zer was also entitled to an unconditional offer of rein-
statement, but was not offered such with the other five
employees, we find that he continued in the status of
a discriminatorily discharged employee, and we will
adopt the Administrative Law Judge's recommended
make-whole remedy with respect to him.
We further find, however, that the other five discri-
minatees' failure to accept Respondent's uncondition-
al offer of reinstatement had the effect of changing
their status from discriminatorily discharged employ-
ees to unfair labor practice strikers. Accordingly, they
are entitled to full reinstatement upon application,
but their right to backpay is tolled from the time the
unconditional offer to them was made .6
3. The Administrative Law Judge further found
that employee Sanchez was unlawfully discharged.
We do not agree. Sanchez did not appear for work on
the morning Respondent unlawfully discharged the
aforementioned six employees. After the employees
refused Respondent's reinstatement offer, four of
them went to the home of Sanchez where they told
him they had been discharged. Sanchez asked wheth-
er he too had been discharged, and they replied that
they did not know. Sanchez then accompanied the
group to Respondent's office where they had been
told to pick up their checks. After a slight delay, all
seven employees, including Sanchez, were handed
their checks, although normally they would have been
paid some 3 hours later. Sanchez made no inquiry of
Respondent as to his status and never reported back
to work nor did Respondent subsequently contact
him.
The Administrative Law Judge inferred that San-
chez was discharged either because Respondent erro-
neously believed he had been among those discharged
that morning, or because Respondent considered him
allied with the others in refusing to return to work. In
either case, the Administrative Law Judge concluded
that Respondent violated Section 8(a)(3) and (1) of
the Act. We do not adopt these conclusions for the
following reasons.
The burden is on General Counsel to make out a
prima facie case that Sanchez was unlawfully dis-
charged. Showing that Sanchez was a union adherent
and received his paycheck 3 hours earlier than normal
on a day he did not appear for work is not sufficient
to establish a prima facie case of unlawful discharge.
Nor can inference be substituted for lack of evidence,
5 Blue Jeans Corporation, 170 NLRB 1425, Burlington Industries, Inc., 144
NLRB 272, 282.
6 O'Damel Oldsmobile, Inc, 179 NLRB 398: Southwestern Pipe, Inc, 179
NLRB 364.
19
for any inference would be pure speculation. Under
the circumstances, it is as reasonable to infer that
Sanchez voluntarily threw in his lot with the other
employees as unfair labor practice strikers as it is to
infer that he was unlawfully discharged. Consequent-
ly, we find that the General Counsel has not sustained
his burden of establishing that Respondent dis-
charged Sanchez for unlawful reasons, and conclude
that Sanchez took on the same status as other employ-
ees who refused Respondent's offer of rein-
statement-that of an unfair labor practice striker.
REMEDY
Inasmuch as we have found, contrary to the Ad-
ministrative Law Judge, that five of the employees
unlawfully discharged by Respondent were offered
unconditional reinstatement and thereafter became
unfair labor practice strikers, and that employee San-
chez voluntarily joined these employees as an unfair
labor practice striker, we will substitute for the make-
whole remedy recommended by the Administrative
Law Judge an order requiring Respondent to offer
each of these employees, upon their unconditional
application, 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 other rights and privileges, dismiss-
ing, if necessary, any employee hired on or after April
28, 1972, to replace them. If, after such dismissal,
there are still not sufficient positions available for all
the strikers, we shall order Respondent to place the
names of those employees not reinstated on a prefer-
ential hiring list. It having been found further that
Respondent discriminatorily discharged Alan Spitzer,
and has failed to offer him unconditional rein-
statement, we shall require that Respondent offer him
immediate and full reinstatement in the manner set
forth in "The Remedy" section of the Administrative
Law Judge's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Robert M.
Anderson, an Individual Proprietorship d/b/a An-
derson Plumbing and Heating Company, Albuquer-
que, New Mexico, his agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following paragraph for that pre-
sently lettered 2(b):
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(b) Offer to Alan Spitzer immediate and full rein-
statement to his former job or, if his job no longer
exists , to a substantially equivalent position without
prejudice to his seniority or other rights or privileges,
and make him whole for any loss of pay suffered by
him by reason of his discriminatory discharge on
April 28, 1972, in the manner set forth in the section
of the Administrative Law Judge 's Decision entitled
`The Remedy.' "
2. Insert the following as paragraph 2(c), and relet-
ter the present paragraphs 2(c), (d), and (e) and (d),
(e), and (f), respectively:
"(c) Upon application, offer to Tom Clayton,
Gene Evans, David Franklin, Richard Pierce, Rudy
Sandoval, and Jake Sanchez immediate and full rein-
statement to their former jobs or , if those jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges , dismisssing , if necessary , any persons hired
on or after April 28, 1972. If jobs are not available,
place the names of the aforementioned employees on
a preferential hiring list."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT discourage membership in United
Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States & Canada , Local 412, AFL-CIO,
or any other labor organization , by discriminat-
ing against employees in regard to hire and ten-
ure of employment or any other term or
condition of employment.
I WILL NOT unlawfully interrogate employees
with respect to their protected activities.
I WILL NOT promulgate or maintain work rules
which constitute changes in the terms and condi-
tions of employment (from those prevailing on
April 18 , 1972) of employees in the bargaining
unit for which the above -mentioned Union has
been certified as the bargaining representative
without previously bargaining with said Union
with respect thereto.
I WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of
their rights under Section 7 of the Act.
I WILL make Alan Spitzer , Rudy Sandoval,
John Pierce, Richard Pierce, Tom Clayton,
David Franklin, Jake Sanchez, Pedro Griego,
and Greg Williams whole for any loss of pay they
may have suffered by reason of the unlawful re-
fusal to permit them to work on April 20, 1972.
I WILL offer to Alan Spitzer immediate and full
reinstatement to his former job or, if his job no
longer exists , to a substantially equivalent posi-
tion , without prejudice to his seniority or other
rights and privileges , and make him whole for
any loss of pay suffered by him by reason of his
discriminatory discharge on April 28, 1972.
I WILL, upon application, offer to Tom Clayton,
Gene Evans , David Franklin , Richard Pierce,
Rudy Sandoval , and Jake Sanchez immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiv-
alent positions , without prejudice to their seniori-
ty or other rights or privileges , dismissing, if
necessary , any persons hired on or after April 28,
1972. If jobs are not available, I will place the
names of the above employees on a preferential
hiring list.
ROBERT M. ANDERSON,
AN INDIVIDUAL
PROPRIETORSHIP D/B/A
ANDERSON PLUMBING AND
HEATING COMPANY
(Employer)
Dated By
Robert M. Anderson
I will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States , of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 7011 Federal Building and U. S.
Courthouse, P. O. Box 2146, 500 Gold Avenue,
S. W., Albuquerque, New Mexico 87101, Telephone
505-843-2508.
ANDERSON PLUMBING AND HEATING CO. 21
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on a
charge filed on May 2, 1972, as amended on May 26, 1972,
and May 31, 1972, by United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States & Canada. Local 412, AFL-CIO, here-
inafter referred to as the Union, the complaint herein was
issued on June 30, 1972. An amendment to said complaint
was subsequently issued on August 16, 1972. The complaint,
as amended, alleges that Robert M. Anderson, an Individ-
ual Proprietorship d/b/a Anderson Plumbing and Heating
Company, hereinafter referred to as the Respondent, viola-
ted Section 8(a)(1), (3), and (5) of the Act. Respondent by
its answer denies that it committed the unfair labor prac-
tices alleged in the complaint.
Pursuant to notice, a hearing was held in Albuquerque,
New Mexico, on August 29 and 30, 1972. Appearances were
entered on behalf of all of the parties. Briefs were received
from the General Counsel and Respondent on October 4
and October 3, 1972, respectively.
Upon the entire record I in this proceeding and my obser-
vation of the witnesses as they testified, I make the follow-
ing:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Respondent is, and at all times material herein has been,
an individual proprietorship doing business under the trade
name and style of Anderson Plumbing and Heating
Company. At all times material herein, Respondent has
been engaged in the business of providing heating and
plumbing services from its place of business in Albuquer-
que, New Mexico. During the 12-month period preceding
the issuance of the complaint, Respondent, in the course
and conduct of its business operations, purchased and
caused to be delivered to its place of business goods and
materials valued in excess of $50,000 from other enterprises
located in the State of New Mexico which said other enter-
prises had received said goods and materials in interstate
commerce directly from States of the United States other
than the State of New Mexico.
As is admitted by Respondent, it is now, and has been at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED HEREIN
As admitted by Respondent, the Union is, and has been
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
1 During the course of the hearing the complaint and amendment thereto
11 THE UNFAIR LABOR PRACTICES
The following allegations in the complaint were admitted
by Respondent and it is found as follows:
8. All plumbers, pipe fitters and apprentices em-
ployed by the Respondent at its place of business locat-
ed at 9905 Bell, S. E., in the city of Albuquerque, State
of New Mexico, exclusive of all office employees, cleri-
cal employees, guards and supervisors as defined by
the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
9. On or about April 10, 1972, a majority of employ-
ees of Respondent in the unit described above in para-
graph 8, by a secret ballot election conducted in Case
No. 28-RC-2311 under the supervision of the Regional
Director for the Twenty-eighth Region of the National
Labor Relations Board, designated and selected the
Union as their representative for the purposes of collec-
tive bargaining with the Respondent, and on or about
April 18, 1972, said Regional Director certified the
Union as the exclusive collective-bargaining represent-
ative of the employees in said unit.
The only testimony elicited in this proceeding was from
witnesses called by the General Counsel; the Respondent
called no witnesses to rebut any of said testimony. The
findings of fact hereinbelow are based on the aforesaid
testimony which is credited, except in one instance which is
noted.
There are two jobsites involved in this proceeding, one
the main shop of Respondent and the other a number of
miles away therefrom, Respondent's Kassuba jobsite. The
Kassuba jobsite pertains to a large apartment complex un-
der construction and a yard across the street therefrom
which was used by Respondent in connection with its work
on the Kassuba jobsite.
On April 10, 1972, the day of the election, Anderson
posted in the main shop six written work rules under the
heading, "Notice To All Personnel." It appears that Re-
spondent had not prior thereto posted its work rules and
that the work rules which were posted on April 10 incorpo-
rated changes from and additions to those which had been
informally established prior thereto. Rule 1 prohibited alco-
holic beverages of any kind on the premises and prior there-
to it had been the customary practice for the men to drink
beer during nonwork hours, a practice which Anderson,
himself, engaged in with them. Rule 2 provided that the
trucks were to be out of the yard at a prescribed starting
time. It appears that the practice theretofore was for the
men to start loading their trucks at the prescribed starting
time. Thus, under this new rule, it was required for them to
load their trucks on their own time. Rule 3 limited the use
of trucks for private purposes. It appears that prior thereto
use of the trucks was permitted for such things as obtaining
lunch. Rule 5 required the wearing of hard hats. Although
such had been the requirement theretofore, the rule further
provided for instant dismissal for the failure to observe the
rule which apparently was not the disciplinary action for-
merly applied. The other two rules apparently were consis-
tent with prior practice.
were amended , particularly by the withdrawal of the allegation in 17(b). It appears that the aforesaid six rules were only posted
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the latter part of the day of April 10. It is inferred
from the testimony of Roger John Marney, Respondent's
foreman at the Kassuba site , that he persuaded Anderson
to remove the notice of the rules by his observation to
Anderson that the men would resent the rules thereby ad-
versely affecting their work. It is further inferred from
Marney's testimony as to what Anderson stated to him as
the reason 2 for posting the rules that he was motivated to
do so in reprisal for his employees having selected the
Union as their bargaining representative at the election ear-
lier that day. It is found that posting of said rules on April
10 constituted a violation of Section 8(a)(1) of the Act in
that it coerced and restrained the employees. The General
Counsel urges that it was also a violation of Section 8(a)(5)
of the Act in that the rules constituted a change in the terms
and conditions of employment made without consultation
with the Union. Inasmuch as the rules were taken down
before they had any effect on the terms and conditions of
the employment of Respondent's employees, it does not
appear appropriate to find that the brief posting of the rules
constituted a violation of Section 8(a)(5) of the Act.
As stated hereinabove, the Union was certified as the
bargaining representative of Respondent's employees on
April 18, 1972. On the following day, a number of the em-
ployees went down to the union offices after work hours and
signed membership application cards. Shortly thereafter
that day Anderson learned of their action to which he re-
acted angrily. The next day, April 20, Anderson refused to
let nine of the employees work who, he apparently believed,
had signed union membership application cards. Following
is the credited testimony of Marney as to what Anderson
told him with respect to the men not being permitted to
work:
A. He told me, because the employees had signed,
the employees on this job had signed application for
membership to this local that he did not know if he was
going to let them work, because he did not know what
obligations he was under.
The men were instructed to report back at noon and,
when they did so, they were told that it was too windy for
them to work. It appears, however, that it was no more
windy that day than the previous day when they had
worked. Of the nine employees who did not work, eight
were given 2 hours' showup pay and one was not.' Respon-
dent argues that Anderson did not permit employees to
work because he was seeking legal advice as to what his
obligations were, but offers no reasonable explanation of
why he needed legal advice as to whether they should be
permitted to work. In its brief, Respondent stresses the fact
that some or all of the employees went to the Union to sign
application cards at the suggestion of Marney, job superin-
tendent. This fact is of no materiality to the issue. In any
event, there is no showing that, at the time, Anderson had
any knowledge of the fact that Marney had made such a
suggestion . Since Anderson was not called as a witness,
2 " .. if they want some rules I'll give them rules"
7 The eight who received showup pay were Tom Clayton, David Franklin,
Pedro Grego, John Pierce , Richard Pierce, Jake Sanchez , Rudy Sandoval,
and Greg Williams. The ninth man who also was not permitted to work but
apparently did not receive showup pay was Alan Spitzer
there is nothing in the record to indicate what legal problem
he thought he had to resolve before permitting employees
to work. Consequently, it is found that Respondent violated
Section 8(a)(3) and (I) of the Act by not permitting the
employees to work on April 20, 1972, because they had
signed applications for union membership.
Also, in the morning of April 20, Anderson asked Spitzer
if he "had been down to the union to sign the card." When
Spitzer told him that he had, he was told by Anderson that
he could not work that morning. Although this is the only
incident of interrogation of an employee with respect to
protected activity, nevertheless, it is found to have been
violative of Section 8(a)(1) of the Act inasmuch as it was
accompanied by the unlawful refusal to let Spitzer work
because he had signed a membership application card.
Thus, the interrogation had the effect of unlawfully re-
straining and coercing Spitzer as well as the other employ-
ees.
Marney resigned shortly after the April 20 incident and
Isabio Pohl replaced him as the Kassuba job superintendent
or foreman for Respondent. On April 25, Pohl posted a
"Notice To All Personnel" which notice stated that, "As of
this date April 25, 1972," certain rules were to be followed.
The rules contained the six mentioned hereinabove as hav-
ing been posted temporarily on April 10, and an additional
three rules (the contents of which are not material to the
issues in this case). As explained hereinabove, three of the
first six rules constituted changes in the terms and condi-
tions of employment and a fourth rule incorporated the
penalty of discharge for failure to wear hard hats which
apparently had not been invoked theretofore. There was no
attempt on the part of the Respondent to consult with the
Union with respect to imposition of these changes in terms
and conditions of employment despite the fact that the
Union had been certified as the bargaining representative of
the employees a week prior thereto. Consequently, it is
found that by posting said rules on April 25, 1972, thereby
changing the terms and conditions of the employment of the
employees in the bargaining unit without consulting the
certified bargaining representative, the Respondent violated
Section 8(a)(5) and (1) of the Act."
It appears that employees at the Kassubajobsite particu-
larly resented the new work rule which required them to
load their trucks on their own time; i.e., prior to the start of
the workday for which they were paid. Before the start of
the workday on April 28, employees Spitzer, Sandoval,
Richard Pierce, Clayton, Franklin, and Evans 5 discussed
4 Respondent in its bnef argues that the rules posted on April 25 were not
new rules because they had been previously posted on April 10. However,
with respect to the posting of the rules on April 10, Respondent in its brief
argues that the rules were taken down the same evening , and "Thus, at the
most , the rules were posted for only one day, April 10th " The inconsistency
in the above two arguments is obvious in any event , it has been found
hereinabove that the rules were not put into effect on April 10 , because of
their removal after only a short period of posting, and were therefore not
implemented . Thus, the rules that were posted on April 25 which constituted
changes in the terms and conditions of employment were new rules and there
is no merit to Respondent 's argument that Respondent had no obligation to
bargain with the Union with respect to imposing such changes in the terms
and conditions of employment of the employees in the bargaining unit
s The record is not clear whether John Pierce was or was not included.
However , for the reason ;ndicated hereinbelow , it is not necessary to make
a determination with respect thereto
ANDERSON PLUMBING AND HEATING CO.
the requirement that they load their trucks on their own
time and agreed that they were not going to do it, that they
wanted to be paid for the time required in loading their
trucks. They delayed going into the Kassuba yard until
shortly before the start of worktime, a few minutes before
7. When they approached the gate, they were informed by
Pohl that they were fired because they had not complied
with the rule requiring them to start work sufficiently before
the workday so as to load their trucks by the start of the
workday. Pohl then added that "if Anderson wants to hire
you back, it is up to him." At the time Pohl refused to let
the employees work, he closed the gate to the yard and it
appears that Spitzer's thermos bottle was broken while he
was doing so. It further appears that Spitzer believed that
Pohl had broken his bottle in closing the gate and engaged
in a heated argument with Pohl with regard thereto.
At this point the aforesaid employees were in the status
of dischargees and their discharges were violative of Section
8(a)(3) and (1) of the Act in that they were motivated by the
employees' failure to comply with a rule which was herein-
above found to have been unlawfully imposed in violation
of Section 8(a)(5) and (1) of the Act and thus their dis-
charges tended to discourage membership in the Union.
Shortly after they were discharged, Anderson appeared
on the scene and offered them reinstatement (except for
Spitzer). However, there is an issue as to whether or not the
offer was unconditional. Anderson stated to the employees
that they could all come back to work, at which point Pohl
indicated that the offer did not apply to Spitzer, to which
reservation apparently Anderson acceded. However, it is
found from credited testimony in the record that Anderson
conditioned their reinstatement upon their acting like men
and not boys. It is inferred that this condition could only
reasonably have been intended and understood to have
meant that the employees would have to comply with the
rule requiring them to load the trucks on their own time .6
Consequently, it is concluded that the offer of rein-
statement was not unconditional and that the employees,
including Spitzer,' remained in the status of discriminatees;
i.e., employees who were discharged in violation of Section
8(a)(3) and (1) of the Act. Although the record discloses that
the employees refused to accept the offer unless it included
Spitzer, this does not alter the conclusion that the offer
nevertheless was not an unconditional offer of rein-
statement and the fact that the offer was refused on another
ground does not affect the finding with respect to the inef-
fectiveness of the offer to remedy the unlawful discharges.
After the above incident, the employees went to the union
ball where they were given "termination slips" and advised
to have Anderson sign them. They then returned to the
6 Although Spitzer testified that Anderson specifically referred to compli-
ance with the new work rules , the General Counsel in his brief makes no
mention of this testimony . While this testimony is not rebutted , it was not
corroborated by any other witness and there is no reference to such a state-
ment by Anderson in Spitzer 's pretrial affidavits Spitzer was not a convinc-
ing witness on this point and, therefore, I do not believe it appropriate to rely
on this aspect of his testimony However, I do believe that it was predicated
on Anderson 's statement that they act like men, not boys , which he rea-
sonably construed to mean they would have to abide by the new work rules
r Spitzer was not offered reinstatement and it cannot be appropriately
contended that there was no obligation to offer him reinstatement. His quar-
rel with Pohl did not make him unemployable
23
Kassuba jobsite and saw Pohl, who said that Anderson
would have to sign the termination slips. They then saw
Anderson, who told them that he would sign the cards later
and they could pick them up at his office about noon.
Four of the employees then went to the home of Sanchez
who had not reported for work that morning . They told
Sanchez that they had been discharged, whereupon he
asked if he had been discharged, too. The employees told
him that they did not know. Sanchez then accompanied the
employees to Anderson's office. The six employees who had
been discharged earlier that day and Sanchez were told to
wait . After a delay all seven employees , the six who had
been discharged that morning and Sanchez, were handed
their checks . Sanchez made no inquiry as to his status and
no statement was made to him by Anderson or anyone in
management with respect to his status.
It appears that in ordinary circumstances Sanchez would
not have received his paycheck until the end of the workday
at 3:30 p .m. Sanchez testified that he thought he was dis-
charged. It is noted at this point that Sanchez was one of the
employees who was not permitted to work on April 20 be-
cause they were believed to have signed membership appli-
cation cards for the Union, as found hereinabove. It is
inferred from the record that the Respondent considered
Sanchez to be in the same status as that of the other six
employees and that he was discharged on April 28. Since
Respondent called no witnesses , no explanation was offered
on the record as to why Sanchez was given his paycheck at
the same time the other six employees were given theirs or
as to why he was not asked his reason for reporting to the
office for his paycheck before the time it was ordinarily
issued. Since there is no explanation on the record as to why
Sanchez was treated in the same manner as the other six
employees , it cannot be determined whether Respondent
mistakenly assumed that he was among the men who re-
fused to comply with the work rule that morning and had
been discharged with the others who refused to do so, or was
discharged because he was considered to be allied with them
in refusing to return to work unless Spitzer was reinstated.
If he was discharged because of the mistaken belief that he
was among those who refused to report early that morning,
then his discharge was violative of Section 8(a)(3) and (1)
of the Act as were the others . If he was discharged because
he was considered to be allied with the others in refusing to
return to work in protest of the failure to reinstate Spitzer,
it was because he was engaged in a protected concerted
activity and thus in violation of Section 8(a)(3) and (1) of
the Acts Consequently, it is found that Clayton, Evans,
Franklin, Richard Pierce, Sandoval , Spitzer, and Sanchez
were unlawfully discharged on April 28, in violation of Sec-
tion 8(a)(3) and (1) of the Act 9
8 Since the protected concerted activity was closely allied to the union
activity of the employees and thus tended to discourage membership in the
Union , it is considered that Sec. 8(a)(3) as well as Sec . 8(axl) was violated
by his discharge.
9 It is noted from credited testimony that Franklin was one of the employ-
ees who were discharged at or about 7 in the morning on April 28 for not
reporting to work in accordance with the above -mentioned invalid rule. It is
also noted that the complaint includes Franklin among the employees who
were alleged to have been unlawfully discharged that day. However, it is
further noted that his name appears on G.C. Exh. 9 among the names of
Continued
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above , occurring in connection with its opera-
tions set forth in section I, above , have a close , intimate, and
substantial relation to trade , traffic , and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
V THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Alan Spitzer, Rudy Sandoval, Richard Pierce,
Tom Clayton, David Franklin, Gene Evans, and Jake San-
chez, it will be recommended that Respondent be ordered
to offer them immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges. It will be further recommended
that Respondent be ordered to reimburse them for any loss
of pay they may have suffered as a result of their discrimina-
tory discharges in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, 291-293, together with 6-percent
interest thereon in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716.
It will be further recommended that Respondent be or-
dered to reimburse Spitzer , Sandoval , John Pierce, Richard
Pierce, Clayton, Franklin, Sanchez, Pedro Griego, and Greg
Williams for any loss of pay they suffered on April 20, 1972,
when Respondent unlawfully refused to allow them to
work.
It will be further recommended that Respondent be or-
dered to rescind the work rules which were promulgated on
April 25, 1972, which constituted changes in the terms and
conditions of employment of the employees in the bargain-
ing unit , and, if it wishes to promulgate such rules in the
future, bargain with the Union with respect thereto.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
employees who worked on April 28 . It is determined that the inclusion of his
name on G. C. Exh. 9 was an inadvertent error
It is not clear from General Counsel 's brief whether or not he contends that
John Pierce was among those who were unlawfully discharged on the morn-
ing of April 28 . While the record tends to indicate that he may have been
among the group of employees who were discharged at that time , his name
does not appear among the alleged discnminatees in the charges filed herein
nor does it appear in par. 15 of the complaint among the names of those who
were alleged to have been unlawfully discharged The record will not support
a finding that the issue of whether or not he was among those unlawfully
discharged was fully litigated or even that Respondent was sufficiently
alerted to a contention by General Counsel that John Pierce was unlawfully
discharged Consequently , his name is not included among those who are
found to have been unlawfully discharged
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act on
April 10, 1972, by posting work rules some of which consti-
tuted changes in the terms and conditions of employment
of its employees in the bargaining representative.
2. Respondent violated Section 8(a)(1) of the Act by in-
terrogating Alan Spitzer on April 20, 1972, as to whether he
had signed an application for membership in the Union.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to permit Alan Spitzer, Rudy Sandoval, John
Pierce, Richard Pierce, Tom Clayton, David Franklin, Jake
Sanchez , Pedro Griego, and Greg Williams to work on April
20, 1972, because Respondent believed they had signed ap-
plications for membership in the Union the previous day.
4. Respondent violated Section 8(a)(5) and (1) of the Act
by promulgating new work rules on or about April 25, 1972,
which constituted changes in terms and conditions of em-
ployment, without consulting the Union as the certified
representative of the bargaining unit of employees affected.
5. Respondent violated Section 8(a)(3) and (1) of the Act
by its discharge of Clayton, Evans, Franklin, Richard
Pierce , Sandoval , Spitzer , and Sanchez on April 28, 1972.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:10
ORDER
Respondent, Robert M. Anderson, an Individual Propri-
etorship d/b/a Anderson Plumbing and Heating Company,
his agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States & Canada, Local 412,
AFL-CIO, or any other labor organization, by discriminat-
ing against employees in regard to hire and tenure of em-
ployment or any other term or condition of employment.
(b) Unlawfully interrogating employees with respect to
their protected activities.
(c) Promulgating or maintaining work rules which con-
stitute changes in the terms and conditions of employment
(from those prevailing on April 18, 1972) of employees in
the bargaining unit for which the above-mentioned Union
has been certified as the bargaining representative without
previously bargaining with said Union with respect thereto.
(d) In any other manner interfering with, restraining, or
coercing the employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Make Alan Spitzer, Rudy Sandoval, John Pierce,
Richard Pierce, Tom Clayton, David Franklin, Jake San-
chez, Pedro Griego, and Greg Williams whole for any loss
10 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
ANDERSON PLUMBING AND HEATING CO. 25
of pay they may have suffi,-red by reason of the unlawful
refusal to permit them to vrork on April 20, 1972.
(b) Offer to Tom Clayton, Gene Evans, David Franklin,
Richard Pierce, Rudy Sandoval, Alan Spitzer, and Jake
Sanchez immediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay suffered by them by reason of their discriminatory dis-
charges on April 28, 1972, in the manner set forth in the
section hereinabove entitleli "The Remedy."
(c) Upon request, make available to the Board or its
agents, for examination and copying, all payroll and other
records containing information concerning Respondent's
backpay obligation under this recommended Order.
(d) Post at his place of business in Albuquerque, New
Mexico, copies of the attached notice marked "Appen-
dix."tt Copies of said notice on forms furnished by the Re-
gional Director for Region 28, after being duly signed by
Respondent, shall be posted by Respondent immediately
upon receipt thereof and maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 28, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
11 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."