E. S. Merriman & Sons

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 972 (N.L.R.B. 1975)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. S. Merriman & Sons ; Merriman Management
Services, Inc. and Stationary Engineers Local 39,
International Union of Operating Engineers, AFL-
CIO. Case 20-CA-9109
August 5, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On March 3, 1975, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondents
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge, for
the reasons fully set forth by him, that Respondents,
upon receiving the Union's demand for recognition,
immediately embarked upon an intensive and exten-
sive campaign to coerce the employees into abandon-
ing their support of the Union. Thus, on April 10,
1974,1 as soon as the Union's demand for recognition
was received, Respondents' apartment manager at
the Cove, David Lynch, called into his office four of
the five unit employees 2 and asked each individually
if he had signed a card? Each of the employees an-
swered in the affirmative. Lynch thereupon threat-
ened the employees by telling them that it would be
futile for them to support the Union, that there was
not a union at the Cove, and that there never would
be. Lynch also threatened to discharge the employees
because of their membership in or activities on be-
half of the Union. Lynch then went around the room
again and asked each employee if he was "going to
go with the Union." Again, all four employees an-
1 Unless otherwise indicated , all dates are in 1974
2 The appropriate unit , as found by the Administrative Law Judge, con-
sists of all maintenance employees employed by Respondents at Cove
Apartments , located in Tiburon , California , excluding office clerical em-
ployees , guards and supervisors as defined in the Act.
3 The four employees were Mike Fahey , Bill R. Atteberry . Tony Leonar-
di, and Steve Spanel . On April 8 they had attended an organizational meet-
ing with the Union's assistant business manager, Robert George . At that
time all four employees signed union authorization cards and gave them to
George . The fifth unit employee , Ernest Stoker , later signed a card and
mailed it to George.
swered affirmatively. Immediately thereafter, Lynch
made good his threat and fired all four of them. On
the following day, Lynch continued his unlawful
conduct by telling applicant Newbill that the entire
unit crew had been fired for joining the Union and
by asking Newbill how he felt about the Union.
On April 11, the discharged employees formed a
picket line at the Cove, where they picketed Respon-
dents that entire day and most of the next day. On
Friday, April 12, Lynch and his immediate supervi-
sor, George Patterson, reinstated the four pickets
with full backpay for what Lynch euphemistically
called their "temporary lay-off." When the employ-
ees reported for work on Monday, April 15, Patter-
son called each individually into Helen Smith's 4 of-
fice and, after assuring each employee of his
statutory right to organize and to select a union, told
him that joining a union would not be very advanta-
geous ; that Respondents could fire everyone and
contract the work out; that Respondents could not
afford union costs; that the work force might be re-
duced; and that preference might then be given to a
more junior employee (who would be the union stew-
ard) against a more senior employee. In addition,
Patterson asked each employee if he had signed a
union card and why he had done so, and urged him
to think it over. During these interrogations, two em-
ployees said that they would continue their support
of the Union, one said that he would think it over
and let Patterson know later, and the other two indi-
cated a willingness to withdraw from the Union.
Thereafter, four of the employees involved resigned
from their jobs with the Cove for various reasons
unrelated to their union activities.
Based upon the foregoing conduct, the Adminis-
trative Law Judge found that Respondents violated
Section 8(a)(1) and (3). We fully agree. He further
found, however, that a bargaining order under Gis-
sel5 is not warranted on the grounds that the adverse
effects of the unfair labor practices had been neutral-
ized and that a fair election is therefore now possible.
In reaching this conclusion, the Administrative Law
Judge relied principally on his finding that all of the
employees involved in the unfair labor practices were
reinstated and have since resigned; that on April 12,
Respondents posted a Board "Notice to Employees"
informing employees that a representation petition
had been filed with the Board, and advising them of
their rights under the Act, which "Notice" remained
posted throughout the period in issue ; that on April
15, Patterson assured the employees of their statutory
right to seek union representation; and that no fur-
4 Helen Smith is Respondents ' assistant manager of apartments.
5 N LR B v. Gissel Packing Co., inc., 395 U S. 575 (1969).
219 NLRB No. 114
E. S. MERRIMAN & SONS
ther unfair labor practices have been committed
since April 15.
The General Counsel has excepted to the finding
that no bargaining order is warranted here and to the
Administrative Law Judge 's failure to consider the
appropriateness of such an order predicated upon the
principles enunciated in Sullivan Electric Company.6
We agree with the General Counsel's contentions
and find that a bargaining order is clearly warranted
both under the Sullivan Electric and Gissel doctrines.
It is well settled that an employer who elects to
poll or interrogate his employees following a union's
demand for recognition is bound by the results of
that poll.' An employer who undertakes his own sub-
stitute for a Board-conducted election and thereby
confirms the union's claim of majority status, may
not thereafter decline to bargain with that union. He
cannot repudiate the route he himself has selected to
test the union's majority claim merely because the
results are not to his liking. Here, Respondents, im-
mediately upon receiving the Union's claim of ma-
jority and demand for recognition and bargaining on
April 10, called four of the five unit employees into
the office and systematically and coercively interro-
gated each individually as to whether or not he had
signed a card on behalf of the Union. Each employee
answered in the affirmative. Respondents, having
thus confirmed the Union's claim of majority status,
were "stuck" with the results. Accordingly, we find
that by refusing to recognize and bargain with the
Union on and after April 10, Respondents have vio-
lated and continue to violate Section 8(a)(5) and (1)
of the Act.
Moreover, we find that a bargaining order is also
warranted under Gissel, supra. Contrary to the Ad-
ministrative Law Judge, we find that the coercive na-
ture of Respondents' intensive and extensive unfair
labor practices has not been neutralized either by Re-
spondents' own conduct or by the employees' con-
duct in voluntarily quitting their jobs. In the first
place, the record shows, contrary to the Administra-
tive Law Judge's finding, that all employees involved
in the unfair labor practices have not yet left Respon-
dents' employ. Although four have quit for reasons
unrelated to Respondents' unfair labor practices, one
(Stoker) remains . It is reasonable to infer that
Stoker's enthusiasm for unions or other concerted
protected activities has been considerably dampened
by the memory of Respondents' conduct during the
period of April 10 through 15. It is equally reason-
able to assume that Stoker has related or is likely to
6 199 NLRB 809 (1972).
7 Fred Snow, Harold Snow and Tom Snow d/bla Snow & Sons , 134 NLRB
709 (1961 ); Sullivan Electric Company, supra; Nation - Wide Plastics Co., Inc.,
197 NLRB 996 (1972).
973
relate to new employees, if the occasion arises, his
experiences with Respondents during the period in
issue . The Respondents' unfair labor practices during
that rather short interval were so severe and so exten-
sive that they will likely have a long and lingering
effect on the Respondents' employees. Furthermore,
we have held in similar situations that mere turnover
among employees does not alone eliminate or dissi-
pate an employer's coercive conduct.'
Finally, we cannot find that either the Respon-
dents' posting of a Board "Notice" or Patterson's as-
surances to the employees on April 15 tended to dis-
sipate any of the unfair labor practices which had
been committed. Indeed, in the very interviews with
employees in which Patterson uttered these assur-
ances , he also threatened them with severe reprisals if
they continued their support of the Union, interro-
gated them about their union sympathies, and solic-
ited their withdrawals from the Union. In these cir-
cumstances , neither the "Notice" nor the oral
assurances could have given much comfort to the
employees.
In view of the above and the entire record herein,
we find that a bargaining order would also be war-
ranted under Gissel, supra.
REMEDY
Having found that Respondents engaged in certain
unfair labor practices, we shall order the Respon-
dents to cease and desist therefrom and to take cer-
tain affirmative action which we find to be necessary
to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act .9
For the reasons discussed above, we find the impo-
sition of a bargaining order is essential to remedy the
unfair labor practices and to protect the statutory
rights and interest of the employees. Because of the
scope and the extent of the unfair labor practices
found herein, we shall provide a broad cease-and-
desist order.
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Stationary Engineers Local 39, International
Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
s Henry Colder Company, 184 NLRB 118 (1970), enfd. as modified 447
F.2d 629 (C.A. 7, 1971); Atlas Engine Works, Inc., 181 NLRB 52, 53-at In.
10 (1970), enfd . 435 F 2d 558 (C.A 6, 1970), cert. denied 402 U.S. 909
(1971).
9 There is no contention that an order requiring reinstatement or backpay
is required.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All maintenance employees employed by Re-
spondents at Cove Apartments located in Tiburon,
California; excluding office clerical employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. By refusing to bargain with the Union, on and
after July 10, 1974 , Respondents engaged in and con-
tinue to engage in unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
5. By interrogating and polling employees con-
cerning their union activities , threatening them with
discharge and other economic reprisals, and solicit-
ing their withdrawals from the Union, Respondents
interfered with , restrained , and coerced said employ-
ees in the exercise of their rights guaranteed them by
Section 7 of the Act, in violation of Section 8(a)(1) of
the Act.
6. By discharging Bill R. Atteberry, Tony Leonar-
di, Steve Spanel, and Mike Fahey on April 10, 1974,
Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
7. Respondents did not violate Section 8(a)(1) of
the Act by threatening an employee through their
supervisor, Richard Kennon, on April 11, as alleged
in paragraph VI(d) and (e) of the complaint.
8. Respondents did not violate Section 8(a)(3) of
the Act by discharging employee Larry Newbill for
engaging in union activities as alleged in paragraph
VII(b) of the complaint.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that Respondents, E. S.
Merriman & Sons; Merriman Management Services,
Inc., San Francisco , California , their officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating or polling their employees about
their membership in or activities on behalf of Sta-
tionary Engineers Local 39, International Union of
Operating Engineers , AFL-CIO, or any other labor
organization.
(b) Threatening their employees with discharge or
other economic reprisals for signing union authoriza-
tion cards or engaging in other union activities.
(c) Soliciting employees to withdraw from the
Union.
(d) Discouraging membership in Stationary Engi-
neers Local 39, International Union of Operating
Engineers, AFL-CIO, or in any other labor organiza-
tion, by discharging, or in any other manner discrim-
inating against , employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(e) Refusing to recognize and bargain in good
faith with the aforementioned Union as the exclusive
bargaining representative of their employees in the
unit found appropriate. The appropriate unit is:
All maintenance employees employed by Re-
spondents at Cove Apartments located in Tibu-
ron, California, excluding office clerical employ-
ees, guards and supervisors as defined in the
Act.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to organize, to form, join, or assist labor orga-
nizations, including the above-named organization,
to bargain collectively through representatives of
their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named union as the exclusive representative of
the employees in the bargaining unit described
above, and, if an understanding is reached, embody
such understanding in a signed contract.
(b) Post at their Tiburon, California, place of busi-
ness copies of the attached notice marked "Appen-
dix." 10 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondents' representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply here-
with.
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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."
E. S. MERRIMAN & SONS 975
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity
to present evidence and state their positions, the Na-
tional Labor Relations Board has found that we have
violated the National Labor Relations Act and has
ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form , join, and assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection
To refrain from any and all such activities.
WE WILL NOT interrogate or poll our employees
about their membership in or activities on behalf of
Stationary Engineers Local 39, International Union
of Operating Engineers , AFL-CIO, or any other la-
bor organization.
WE WILL NOT threaten our employees with dis-
charge or economic reprisals for signing union au-
thorization cards or engaging in other union activi-
ties.
WE WILL NOT solicit our employees to withdraw
from the Union.
WE WILL NOT discourage membership in Stationary
Engineers Local 39 , International Union of Operat-
ing Engineers , AFL-CIO, or in any other labor orga-
nization, by discharging or, in any other manner, dis-
criminating against employees , in regard to their hire
or tenure of employment or any other term or condi-
tion of employment.
WE WILL NOT refuse to bargain collectively with the
aforementioned Union as the exclusive representa-
tive of our employees in the unit found appropriate.
The appropriate unit is:
All maintenance employees employed by Re-
spondents at Cove Apartments- located in Ti-
buron, California , excluding office clerical
employees, guards and supervisors as defined
in the Act.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their rights to organize , to form , join, or
assist labor organizations , including the above-
named organization , to bargain collectively
through representatives of their own choosing,
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
WE WILL bargain, upon request, with the
above-named Union as the exclusive representa-
tive of all employees in the unit described above
with respect to wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding
in a signed contract.
All of our employees are free to become and re-
main members of the above-named Union, or any
other labor organization, or to refrain from doing so.
E. S. MERRIMAN & SONS; MERRIMAN
MANAGEMENT SERVICES, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at San Francisco, California, on January
7 and 8, 1975.1 The amended complaint, issued November
27, is based on an initial charge filed April 12, and an
amended charge filed November 21, by International
Union of Operating Engineers, Stationary Local No. 39,
hereinafter referred to as the Union. The complaint alleges
that E . S. Merriman & Sons and Merriman Management
Services, Inc., hereinafter referred to as Respondents, inter-
rogated, threatened, and solicited withdrawal of union sup-
port on the part of its employees in violation of Section
8(a)(l) of the Act, and discharged five of its employees in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act, hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally , and to file briefs . Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondents.
Upon the record of the case, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
E. S. Merriman & Sons, a California corporation, pro-
duces mortgage loan investments and equity investments
for institutional and other investors. It also manages vari-
ous properties . Merriman Management Services , Inc., a
wholly owned subsidiary, acts as a payroll vehicle for E. S.
Merriman & Sons in conducting its property management
business.
One of the properties E. S. Merriman & Sons manages is
an office building complex in San Mateo County, Califor-
All dates hereinafter are within 1974, unless stated to be otherwise.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nia, which is owned by Manufacturers Life Insurance
Company. The annual gross rental revenues of this office
building complex are approximately $400,000 . This office
building complex receives annual gross rental revenues in
excess of $25,000 each from the Wells Fargo Bank, the
Keystone Life Insurance Company, and the Bank of
America.2
Another of the properties which E. S. Merriman & Sons
manages is the Cove Apartment complex , herein some-
times called the Cove, in Tiburon, California.3
Respondents challenge the Board 's jurisdiction herein,
primarily upon the theory that the controversy does not
affect interstate commerce within the meaning of the Act.
Seattle Real Estate Board, 130 NLRB 608 (1961 ), relied on
by Respondent, involved the question of jurisdiction over a
purely local real estate brokerage business . That is not the
question in this case . The issue here is whether the Board
will exercise jurisdiction over Respondents , who engage in
business as managers of office buildings and apartments,
among other things. The nature of the apartment compo-
nent of the business , and the amount of revenue it contrib-
utes to the total revenue of Respondents , is not controlling.
As anticipated by counsel for Respondents , General
Counsel relies on Mistletoe Operating Company, 122 NLRB
1534 (1959), for the proposition that managers of office
buildings are within the jurisdiction of the National Labor
Relations Board , provided jurisdictional amounts are met.
There is no question but what jurisdictional amounts are
met in this case , so far as office buildings are concerned!
Nor is there any question but what the Board would have
jurisdiction over a controversy involving that portion of
Respondents ' business devoted solely to management of
office buildings . In such a case, Mistletoe Operating Compa-
ny, supra, clearly would apply.
However, Respondents argue that, since only the Cove is
involved herein and since it is an apartment complex that
does not, of itself , come within the jurisdiction of the
Board , Mistletoe does not apply.
Respondents herein operate as managers , and they alone
have been named in the amended complaint. There is nei-
ther legal nor practical basis for considering the properties
they manage as separate jurisdictional questions . In assert-
ing its jurisdiction, the Board looks to the totality of a
respondent's operations , not its component parts. Acme
Paper Box Co., 201 NLRB 240 (1973); Siemons Mailing
Service, 122 NLRB 81 (1958); Kinney System Inc., 48
LRRM 1586.
Respondents also rely on Falk v. Brennan, 414 U.S. 190
(1973). However, as noted by Respondents, that is a case
under the Fair Labor Standards Act of 1938, 29 U.S.C.
2 The Bank of America was a tenant for the entire year preceding the
month of December 1974, but vacated in that month.
3 The situs of the controversy herein.
Source of the revenue constituting jurisdictional amounts requisite here-
in include the requisite amounts derived from employers engaged in com-
merce within the meaning of the Act. Administrative notice of this fact is
taken , as suggested by-General Counsel in his brief . Bank ofAmerica, 14
NLRB 209 (1939); 26 NLRB 198 (1940), modified and enfd . 130 F.2d 624
(C A. 9, 1942); cert . denied 318 U S. 791 ( 1943); 174 NLRB 101 (1969); 174
NLRB 298 (1%9); 196 NLRB 591 (1972); Wells Fargo Bank , 179 NLRB
465(1%9).
section 203(5x1) which provides a specific jurisdictional
standard. Not only is a different statute involved, requiring
review of a different line of cases, but only apartment com-
plexes were managed in the Falk case . That case is not
authority for the proposition that Respondents herein are
beyond the jurisdiction of the National Labor Relations
Board.
I find that Respondents are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Stationary Engineers Local 39, International Union of
Operating Engineers , AFL-CIO is now, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Cove Apartments is a large complex of buildings in Ma-
rin County near San Francisco. The buildings, with 284
apartments, cover several acres of land with extensive land-
scaping . Employed on the site during the time material
herein were a manager, two office employees , one mainte-
nance supervisor,s three maintenance employees, one gar-
dener, and one custodian. The three maintenance employ-
ees, the gardener, and the custodian were hourly
employees; the others were salaried.
Prior to April 8, the hourly employees were not orga-
nized and there had been no union activity at the Cove,
other than talk among employees about the possibility of
organizing . An organizational meeting was held April 8,
attended by four of the hourly employees and Robert
George (hereinafter George), the Union' s assistant business
manager . All four employees signed union authorization
cardS,6 which were given to George.
On April 10 David Lynch (hereinafter Lynch), manager
of Cove Apartments received a letter from George who
requested that Respondents recognize the Union as the
bargaining representative for the employees. On that same
day, April 10, Lynch called into his office the four employ-
ees who signed union cards. A discussion ensued, after
which Lynch fired the four, admittedly because of their
union activity and support.
The following morning, April 11, the four employees
formed a picket line at the main entrance to the apart-
ments , where they picketed throughout the day and for
most of the day on April 12.
On Friday, April 12, Lynch and his immediate supervi-
sor, George Patterson (hereinafter Patterson), Respon-
dent's supervisor of apartments, reinstated the four
picketers with backpay. They all returned to their regular
jobs the following Monday morning.
5 Hereby found to be a supervisor within the meaning of the Act, based
on the manager's testimony, and the showing in the record that this supervi-
sor participated in hiring and firing of maintenance employees, in addition
to his direction of work for those employees.
6 A fifth card , later signed by Ernest Stoker, was mailed to George.
E. S. MERRIMAN & SONS 977
On Monday, April 15, Patterson individually called the
four employees into Lynch's office and in the presence of
Helen Smith , assistant manager of Cove Apartments, ques-
tioned them about their union interest and activities.
Statements made and actions taken by Lynch and Pat-
terson during the meetings of April 10 and 15, briefly dis-
cussed above , form the basis of the principal charges in the
complaint.
The four employees involved in the charges subsequently
resigned from their jobs with the Cove , for various reasons
not related to this case.
A. Alleged Interrogation by Lynch
Paragraph VI (a) of the amended complaint states:
On or about April 10 and April 11, 1974, Respon-
dents, by David A. Lynch, at the Cove, interrogated
employees concerning their membership in or activi-
ties on behalf of the Union.
Fahey testified that he, Atteberry, Leonardi, and Spanel
were called into Lynch's office on April 10 and asked who
had signed union authorization cards. Leonardi corrobo-
rated Fahey's testimony and added that Lynch "went
around the room again, and asked each one of us individu-
ally, if we were going to go with the Union." Atteberry also
corroborated Fahey's testimony. Lynch acknowledged that
he asked Fahey, Atteberry, Leonardi, and Spanel on two
separate occasions during the meeting of April 10 if they
had signed union authorization cards.
The April 11 allegation refers to Larry Newbill's testimo-
ny, wherein he said Lynch asked him how he felt about the
Union. That testimony being supported by Lynch, at least
implicitly if not explicitly, it is found that such questioning
occurred.
Such questioning is a violation of the Act.
It is found that this allegation of the complaint is proved.
Struksnes Construction Company, 165 NLRB 1062 (1967);
Fontana Bros., 169 NLRB 368 (1968). The allegation refer-
ence to April I1 also is discussed in section D below.
B. Alleged Threat by Lynch
Paragraph VI (b) of the amended complaint states: "On
or about April 10, 1974, Respondents , by David A. Lynch,
at the Cove threatened employees that it would be futile
for them to seek union representation."
Fahey testified that Lynch stated, during the meeting of
April 10, that there was not a union at the Cove, and there
never would be. This testimony was corroborated by Leo-
nardi and Atteberry. Their testimony on this point is cred-
ited . Such a statement clearly is a threat , in violation of the
Act.
It is found that this allegation of the complaint is proved.
Mid-South Towing Co., 177 NLRB 964 (1969).
C. Alleged Threat by Lynch
Paragraph VI (c) of the amended complaint states: "On
or about April 10, 1974, Respondents , by David A. Lynch,
at the Cove threatened employees with discharge because
of their membership in or activities on behalf of the
Union."
Fahey, Atteberry, and Leonardi testified that Lynch told
them during the April 10 meeting that he would have to
discharge them if they remained in the Union. Lynch ac-
knowledged that he did make such a statement.
It is found that this allegation of the complaint is proved.
D. Alleged Threat by Lynch and Kennon
Paragraph VI (d) of the amended complaint states: "On
or about April 11, 1974, Respondents, by David A. Lynch
and Richard Kennon at the Cove, threatened an employee
that other employees had been discharged because of their
membership in or activities on behalf of the Union."
Larry Hughes I testified that he was in Lynch's office the
morning of April 11, with Kennon also present, when
Lynch said the entire crew had been fired for joining the
Union, and asked Newbill how he felt about the Union.
Lynch testified as follows on cross-examination:
THE WITNESS: Well, he was rather reticent about
starting to work.
And he said something about, "Well, I don't care
about the union; but I don't want to start to work, and
then be fired because I came on to work as scab la-
bor."
And I said, "I can assure you that you will not be
fired for having come to work as scab labor, or be-
cause the union was organizing.
It may be argued, as discussed below, that Newbill was
not an "employee" at the time of the conversation. Howev-
er, that fact is not dispositive of this issue. The nature of
the threat by Lynch is quite clear,8 and it is violative of the
Act whether directed to an employee or to an applicant.
Orlando Paper Co., Inc., 197 NLRB 380 (1972).
It is found that this allegation of the complaint is proved,
but only so far as Lynch is concerned.
E. Alleged Threat by Kennon
Paragraph VI (e) of the amended complaint states: "On
or about April 11, 1974, Respondents, by Richard Kennon
at the Cove threatened an employee with discharge if he
became a member of or engaged in activity on behalf of
the Union."
According to Newbill's testimony, Kennon did consider-
ably more than threaten. Newbill said he and Kennon
talked about the other employees having been fired, after
which Kennon said, "If that's the way you feel about it,
then you're fired."
Kennon's testimony is almost totally contrary to that of
Newbill. Newbill's testimony was far from convincing, and
is without support in the record. Based on appearance and
demeanor of the witnesses, and the record, Kennon is cred-
ited over Newbill.
It is found that this allegation of the complaint is not
proved.
r A k a Larry Newbdl at the times relevant herein
s Performance, Inc., 208 NLRB 618 (1974)
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Alleged Threat by Patterson
Paragraph VI (f) of the amended complaint states: "On
or about April 15, 1974, Respondents, by George Patterson
at the Cove threatened employees with loss of employment
if they continued to designate or select the Union as their
collective bargaining representative."
Fahey testified that Patterson called him into Helen
Smith 's office on Monday , April 15, and with Smith pres-
ent, told him that joining a union would not be very advan-
tageous; that if Respondent chose , it could fire everyone
and retain private contractors ; and that Respondent could
not afford union costs . Leonardi and Atteberry testified to
similar conversations with Patterson , under the same con-
ditions.
Patterson acknowledged holding individual interviews
with Spanel, Atteberry, Leonardi, and Fahey in Helen
Smith 's office and in her presence as a "witness ." Patterson
said all interviews were much the same , with his opening
statement being:
... to assure you that you have every right to orga-
nize, to belong to a union or other organization that
you wish to belong to; and that you can be fully as-
sured that I myself, and our company , have no inten-
tions of trying to bring any intimidation, any kind of
punishment, or anything else, against you for this-for
anything that you might do in this regard-and that
you are perfectly free to belong to any union that you
wish.
Patterson stated:
And I told him that, should the corps of employees
be unionized, there was a possibility that expenses
might continue to go up; and that, at that point, I had
no idea of what the Owners might do.
I told him that we, the company, could even be sub-
ject to dismissal , if the expenses get out of hand. That
I just had no way of knowing their reaction, or what it
might be.
Patterson also told the employees that, since Atteberry
was the principal organizer, he probably would be the
union steward if the Union came in: that under the reorga-
nization then being considered by management , one job
position may be deleted and, if so, Atteberry may be re-
tained because he would be a steward , even though he had
less seniority than Leonardi.
Helen Smith corroborated Patterson 's testimony.
Looking at the circumstances, and the interviews as a
whole , it is clear that Patterson threatened the four em-
ployees as alleged . The interviews were individual ones,
held in a management office and conducted by an out-of-
town management official well up in Respondent 's hierar-
chy, with a salaried employee as a "witness ." There is no
doubt about the import of Patterson 's statements: Respon-
dent could not afford a union, a layoff was likely, a union
steward probably would be given preference, the owners
were likely to take drastic measures if expenses increased
because of the Union. After those statements, Patterson
asked each employee if he still wanted the Union in.
Such interviews could have but one purpose-to threat- the hearing.
en the employees in an attempt to get them to reject the
Union.
It is found that this allegation of the complaint is proved.
G. Alleged Interrogation by Patterson
Paragraph VI (g) of the amended complaint states: "On
or about April 15, 1974, Respondents, by George Patter-
son, at the Cove, interrogated employees concerning their
membership in or activities on behalf of the Union."
Fahey testified that Patterson asked him if he had signed
a union authorization card. When Fahey said he had, Pat-
terson asked him why. Leonardi testified that Patterson
asked him the same two questions . Atteberry also testified
that Patterson asked him if he had signed a union card and
why. Patterson acknowledged he asked those three if they
had signed a union card and why . This clearly is question-
ing proscribed by the Act.
It is found that this allegation of the complaint is proved.
Struksnes Construction Company, supra; Fontana Bros., su-
pra.
H. Alleged Solicitation by Patterson
Paragraph VI (h) of the amended complaint states: "On
or about April 15, 1974, Respondents , by George Patter-
son, at the Cove, solicited an employee to withdraw from
his membership in or activities on behalf of the Union."
Leonardi testified that , during his discussion with Patter-
son on April 15, the latter asked him his reasons for signing
a union authorization card . After receiving Leonardi's re-
ply, Patterson told Leonardi the various reasons for
Respondent 's considering the Union a detriment to em-
ployees . Those statements were in the form of threats and
illegal questioning , as discussed above. Thereafter , Patter-
son asked Leonardi to think it over , and let him know his
decision . That chain of events properly can be considered
in only one light-solicitation of Leonardi 's withdrawal of
union support by use of threat and illegal questions . Patter-
son acknowledged the foregoing conversation related by
Leonardi, and said he talked in the same way with Atteber-
ry and Fahey.
It is found that this allegation of the complaint is proved.
Ra-Rich Manufacturing Company, 120 NLRB 503 (1958);
N. L. R. B. v. Lexington Chair Co., 361 F.2d 283 (C.A. 4,
1966)?
1. Alleged Discharge of Four Employees
Paragraph VII (a) of the amended complaint states:
On or about April 10, 1974, Respondent discharged
the following-named employees because of their mem-
bership in or activities on behalf of the Union or be-
cause they engaged in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection:
9 Par VI (i) of the complaint was withdrawn by the General Counsel at
E. S. MERRIMAN & SONS
(1) Bill R. Atteberry,
(2) Mike Fahey,
(3) Tony Leonardi, and
(4) Steve Spanel.
This. charge was testified to by each of the four employ-
ees and was admitted by Lynch and Patterson.
Respondent introduced testimony and evidence to show
that the discharge of the four employees was the result of
Lynch's sudden anger and "losing his cool" upon being
unexpectedly confronted by the employees ' having signed
union authorization cards . With less than 2 days after the
discharges , Lynch delivered letters to the four employees,
reinstating all of them without any loss of pay or benefits.
All four returned to work the following Monday morning.
Respondent argues that the reinstatement warrants mitiga-
tion of any possible remedy and negates the possibility of
union animus.
Regardless of any consideration of mitigation and the
question of union animus (discussed below), the fact of the
discharges , and the specific reasons therefor , are of record
and are not in dispute.
It is found that this allegation of the complaint is proved.
J. Alleged Discharge of Newbill
Paragraph VII (b) of the amended complaint states: "On
or about April 11, 1974, Respondents discharged , and at all
times thereafter have refused to rehire or reinstate, employ-
ee Larry Newbill because of his membership in or activities
on behalf of the Union or because he engaged in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection."
Newbill (Hughes) testified that , on April 10, he applied
for work at the Cove and talked with Lynch, who said, "I
was hired, and to come in the next day." Newbill said Fa-
hey walked in and Lynch introduced Newbill, saying that
Newbill would be working under Fahey. He said Spanel
then came in and Newbill was introduced as "the new gar-
dener."
Newbill said he reported for work the next morning
about 8 o'clock . He said only Kennon was there , and that,
when Newbill tried to engage him in conversation, Kennon
ignored him . Newbill said Lynch came in about 9 or 10
and asked if Newbill wanted to work . Newbill said he did,
and Lynch said that was good , because he had fired the
entire maintenance crew for joining the Union. Newbill
said he and Kennon left Lynch 's office and Newbill tried,
.unsuccessfully , to engage Kennon in a discussion about the
discharges and about unions. Newbill said a telephone call
.then came in for repair work, and either the secretary or
Kennon "signed up one of those slips, for me " to take care
of the repairs . At that point , according to Newbilt , Kennon
fired him because of his union views . Newbill said he gave
the repair slip back to the secretary and left. He then went
to the picket line and picketed while the line was in effect.
Lynch testified that he talked with Newbill April 10 and
had him fill out an application . He told Newbill to come
back the following day if he was interested in work. He
said Newbill came in the 11th, that he talked with Newbill
"momentarily ," and that he told Newbill to report to Ken-
979
non. Lynch said that, so far as he knows, Newbill did not
start to work. Testifying from Cove records, Lynch said
Newbill performed no work on the 11th, and there was no
record that Newbill started to work.
Kennon testified that he saw Newbill in the office April
11, and thought he was applying for work. He said both he
and Lynch interview applicants before they are hired for
the maintenance crew, and that Lynch had said nothing to
him about Newbill's being hired. Kennon said he had not
been at work for 2 days and, being uncertain about the
situation, asked Newbill if Lynch had hired him. Newbill
said he did not know. Kennon said a service call came in
and he asked Newbill if he would like to take it. Newbill
said he had no tools. Kennon said he would get some,
something then distracted him, and he did not see Newbill
again that morning; Newbill just "disappeared." Kennon
said he refused to discuss union matters with Newbill, and
he said he did not have authority to fire employees.
Analysis
Fahey and Helen Smith, who allegedly were present dur-
ing the events described above, testified but neither was
questioned about the conversations. Spanel, also allegedly
present, was not called as a witness.
It is not contended by Newbill or the General Counsel
that Newbill was fired by Lynch. To the contrary, it is clear
that Lynch wanted Newbill to go to work, and instructed
him to report to Kennon. Furfher, there is no evidence that
Lynch knew Newbill signed a union authorization card or
otherwise was interested in the Union, at the time of the
conversations . To the contrary, Newbill informed Lynch
that he was not interested in the Union at that-time It also
is clear that Kennon did not have independent authority to
hire or fire employees for the Cove; his authority was limit-
ed to participation with Lynch in such matters.
Newbill said he was fired by Kennon, after leaving
Lynch's office and reporting to Kennon as instructed by
Lynch. That discharge allegedly took place in the midst of
a conversation with very little preliminary discussion be-
tween Kennon and Newbill. Kennon denied any such con-
versation and the firing of Newbill . Newbill was an unim-
pressive witness ; his recitation of the alleged firing was not
convincing. He explicitly described Kennon's reaction to
Newbill's questions about the Union, while Kennon and
Newbill were talking just a few minutes prior to the alleged
firing. Newbill said, "I asked him who all had been fired,
and I got no reply ." " I asked him, once more, what his
personal feelings were on the subject . Same as the first
time , I got no reply." Newbill made it quite clear that,
during his conversation with Kennon that morning, try as
he may, he- could not get Kennon to say anything about
unions or the situation at the Cove. Kennon "just leaned
against the files ." Yet Newbill claims that, only a few min-
utes later during preparations for Newbill to go to work,
Kennon fired him allegedly because of Newbill's -union
views. That testimony is not credited , first because of its
improbability , and second because uncontradicted testimo-
ny established -that Kennon did not have independent fir-
ing' authority . Finally, Kennon was an impressive witness,
and his version of events is credited. He said he talked
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefly with Newbill after the latter came from Lynch's
office, and that nothing was mentioned about union activi-
ties or Newbill's union views.
There is no question but what Newbill did not go to
work the morning of the 11th. All witnesses, including
Newbill, agree that he left the Cove office within a few
minutes after talking with Lynch. Lynch said he directed
Newbill to report to Kennon, which statement was sup-
ported by Newbill. Kennon said Newbill just "disap-
peared." Newbill said he left because he was fired.
If Newbill was fired as alleged, it could have been only
by Kennon. Kennon denies firing Newbill, and Kennon's
testimony is credited. It is found that Newbill rejected
Lynch's job offer, and left the Cove office the morning of
April 11 for his own reasons, and that he was not fired by
Kennon as alleged.
The record shows that Newbill was hired by Lynch on
July 2, after the events discussed above, and that he was
fired after working about 3 weeks. Based on thorough re-
view of the testimony on this subject, it is found that New-
bill was fired on this occasion for good cause, not related in
any way to his union or concerted activity. It is clear from
the testimony that Newbill wasted much time at work, was
unreliable, and was the cause of work complaints by his
fellow employees. Newbill acknowledged that he did not
get along with Fahey, his foreman, and he acknowledged
that he was fired after having been given a week to im-
prove; he also acknowledged that the statements on his
work preformance reviews, Respondent's Exhibits I and 2,
are correct, although he offered explanations for several of
them. Newbill said neither Lynch nor anyone else in man-
agement talked with him about unions while he was work-
ing at the Cove from July 8 to 29. There is no basis in the
record for a finding that Newbill was fired July 29 for
engaging in union or other protected activity.
It is found that this allegation of the complaint is not
proved.
K. Alleged Discontinuance of Benefits
Paragraph VIII (a) of the amended complaint states:
"Commencing on or about April 15, 1974, and continuing
to date, Respondents have discontinued employment bene-
fits, including free gasoline , swimming and sauna privi-
leges, previously enjoyed by employees in the unit de-
scribed below in paragraph IX."
Testimony shows, and it is found, that as a general rule
no custodial work is done at the Cove on Saturdays.
Undisputed testimony of Lynch shows that keys are nec-
essary for access to the clubhouse and swimming pool
maintained for residents and guests of the Cove. Prior to
April 10 only employees who worked on Saturdays had
been issued clubhouse keys, that is, Atteberry and Leonar-
di. Fahey and Spanel never had clubhouse keys.
Undisputed testimony shows that employees customarily
carried keys other than those for the clubhouse and that,
until Lynch was hired as manager January 2, 1974, all
maintenance employees deposited their keys in the office
when they quit work each day. Lynch changed that policy
in order that employees would have their keys available
when they first came to work in the morning-thereafter,
employees took their keys home at night. Lynch tempo-
rarily discontinued this policy April 15 and, until it was
reinstituted about 10 days or 2 weeks later, employees left
their keys in the office at night.
Fahey testifed that, when he was hired,1° he was told he
could use the clubhouse, swimming pool and sauna and
that, between his date of hire on March 5 and April 10, he
used the clubhouse and its facilities without asking permis-
sion on three occasions in the evening. He said he was
accompanied each time by Atteberry, Leonardi and Spa-
nel. Fahey said he never was told by Lynch or anyone else
in management that his clubhouse privileges were re-
moved. He said he never had a clubhouse key.
Leonardi testified that, when he returned to work April
15, his clubhouse key was taken from him and he was re-
quired to turn in his other keys each night when he went
home. His clubhouse key was returned (for daytime use)
about 2 weeks later, and he said Lynch told him at the time
that return of the key did not necessarily mean that his
clubhouse privileges were returned. Leonardi also testified
that he only used the clubhouse on one occasion while
employed at the Cove. That occasion was on April 8, after
the union meeting at Atteberry's house. Leonardi said
Lynch never told him, when he was hired or later, that he
had clubhouse privileges; further, that Lynch never told
him he did not have clubhouse privileges. Leonardi testi-
fied that occasionally he used the clubhouse key for Satur-
day work.
Atteberry testified that he was told by Kennon, 2 or 3
days after he was hired, that he could use the clubhouse
and its facilities other than on weekends or when it was
crowded with tenants and guests . He said he used the club-
house facilities on two occasions, one of which was in com-
pany with Leonardi, Fahey and Spanel after the April 8
meeting . He said his clubhouse key was taken away when
he returned to work April 15 and was returned to him
about a week and a half later. He said Lynch remarked,
when he returned the key, "This key is for maintenance use
only. It does not mean that you will get your privileges
back." Atteberry testified that he had never discussed the
matter of clubhouse privileges with anyone in management
other than Kennon.
Lynch testified that there are no clubhouse privileges for
any employees. He said he was given no instructions about
the subject when he was hired, but that he knew it was
company policy that employees do not use clubhouse facil-
ities ." t Lynch stated that he said nothing to Spanel, Leo-
nardi, Fahey or Atteberry, when he hired them, relative to
clubhouse privileges. He said Fahey once came into the
office and asked to use the pool and sauna; permission was
given for afterhours use on that occasion. He said Spanel
came to his home one night and asked to use the pool-
room; permission was given. Lynch said he knew of no
other instance when employees used the clubhouse facili-
ties, other than one occasion when Atteberry asked to rent
the facilities for his wedding party.
Lynch testified that, during the 2 days the maintenance
10 Lynch testified that he interviewed and hired Fahey, as well as Atteber-
ry and Leonardi.
11 Patterson corroborated this policy of Respondents'.
E. S. MERRIMAN & SONS 981
men were off work, an independent contractor (Gary Ap-
pleton), who works at the Cove, came to see him. The con-
tractor "was very, very upset," and accused Lynch of dis-
cussing his salary with the union employees. The
contractor said the employees quoted to him the exact
amount of a check that Lynch said had been in his locked
office, in a sealed envelope. Lynch said his personal files
had been rifled and his office security breached. He had his
office locks changed, ordered a locked file cabinet, locked
his door when out of the office, and reinstituted the former
policy of having employees turn in keys at night. When the
locked file cabinets arrived about 2 weeks later, he rescind-
ed the policy of turning in keys at night.
So far as the subject of gasoline is concerned, only Atte-
berry and Spanel are involved. Spanel did not testify.
Atteberry testified that Lynch "initiated a program,
where you could fill your gas tank once every two weeks,
and use your car on the job," and charge it to the Cove.
Atteberry said the free gasoline was discontinued "shortly
after we were rehired." He said the employees were told
that Respondents were ordering three-wheeled bicycles for
the maintenance crew to use. On cross-examination Atte-
berry said he was told when the free gasoline was discon-
tinued that it was a budget problem, and that the privilege
had been abused. He said two of the new bicycles had
arrived by the time he left the Cove (mid-May). He stated
that he only used the free gasoline privilege twice.
Lynch testified that transportation was of concern to
him from, the time he became manager of the Cove. Be-
cause of the problem, sometimes it was more convenient
for the men to use their own cars and Lynch agreed to
supply free gasoline each 2 weeks if employees used their
cars while working. At about the same time in March,
when he made the free gasoline arrangement, Lynch or-
dered two three-wheeled bicycles, with an 8-week delivery
date. Only Atteberry and Spanel used the free gasoline ar-
rangement and, when the statement arrived April 11 or 12
for the preceding 2-week period, Spanel had a "staggering"
number of tickets. Atteberry had only one. Lynch that day
talked with Spanel about the abuse, cancelled the arrange-
ment for free gasoline, and told the maintenance employ-
ees the privilege had been abused.
Analysis
Patterson and Lynch credibly testified that it is, and has
been since prior to 1971, company policy that employees
do not use the clubhouse or its facilities. That testimony is
supported by Fahey and Leonardi, who said neither Lynch
nor anyone else in management ever told them they had
such privileges. Atteberry said Kennon told him he could
use the clubhouse, but that testimony is not credited be-
cause (1) it is contrary to the great weight of other testimo-
ny, and (2) as discussed below, Atteberry's testimony, as
well as that of Fahey and Leonardi, on this subject is not
reliable. It is found that it is the policy of Respondents that
employees are not privileged to use the clubhouse or its
facilities.
Aside from policy considerations, a question was pre-
sented concerning use of the clubhouse and its facilities.
Fahey said he used the facilities without asking permission
on three occasions between March 5 and April 10, accom-
panied each time by Atteberry, Leonardi, and Spanel. Leo-
nardi testified he only used the clubhouse and its facilities
on one occasion (April 8). Atteberry said he used them
twice (once on August 8). These recitations are contradic-
tory and are not credited, for obvious reasons . Possibly all
four maintenance employees used the facilities together on
one occasion, but that is the most that can be made of this
testimony. Further, it appears that, if they did so, it was
without sanction by Respondents. Lynch testified that he
gave permission to use the facilities twice; once was to
Fahey to use the pool and sauna and once was to Spanel to
use the pool room at night. Possible rental of facilities to
Atteberry for a wedding party is given no weight; the testi-
mony is not clear and such use certainly is not a "privi-
lege."
Leonardi and Atteberry testified that, when Lynch re-
turned their clubhouse keys, he said the return did not
mean that their clubhouse privileges were restored. That
testimony is not credited, since it is contrary to the over-
whelming weight of evidence. It is found that maintenance
employees were not permitted to use the Cove clubhouse
or its facilities, as a matter of privilege.
So far as the use of keys is concerned, Lynch's testimony
is credited in its entirety. It is found that use of keys by
maintenance employees was restricted by Lynch for a peri-
od of about 2 weeks or less, pending receipt of locked file
cabinets, for security reasons and for no other reason.12
So far as use of gasoline is concerned, Lynch's uncontra-
dicted testimony is credited in its entirety. Only Atteberry
and Spanel were involved. Spanel obviously should have
been disciplined, as he was, because of his abuse of the
offer by Respondents to replace gasoline used for the busi-
ness . He was not to be trusted, hence his use of the gasoline
was discontinued. There was no longer any necessity for
Atteberry to receive the gasoline, f2 since new three-
wheeled bicycles became available for use by maintenance
employees. It is found that replacement of gasoline used by
maintenance employees on Respondents' business was dis-
continued for good and valid reason not related, directly or
indirectly, to union or concerted activity.
It is found that this allegation of the complaint is not
proved.
L. Alleged Imposition of Additional Duties
Paragraph VIII (b) of the amended complaint states:
"Commencing on or about April 15, 1974, and continuing
to date, Respondents have imposed additional duties on
their employees in the unit described below in paragraph
IX, including the maintenance of detailed daily work logs."
The "additional duties" consist of the temporary require-
ment instituted after the employees came back to work on
the 15th, that they carry a timecard with them to each job,
and that they record on the card the time required to do
the work. The requirement was discontinued after amonth
or two. Fahey testified that Lynch told him the cards were
12 It is noted that Lynch's office is in the clubhouse building. Security
r,rements thus necessitated close scrutiny of use of clubhouse keys
I Atteberry received such gasoline a total of two times.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Lynch's use, to justify the payroll. Fahey said the em-
ployees filled out timesheets prior to April 15, but only
recorded the time they came to work and the time they left.
The backs of the timesheets had spaces for the same infor-
mation placed on separate cards after April 15, but the
forms were changed by Respondents. The cards were
about 3 inches by 9 inches and were carried while working
by maintenance employees. Leonardi testified that Lynch
told him the new timecards would be used to justify em-
ployees and would only be used temporarily. He said it
was, in fact, a temporary practice. Atteberry testified that
the timecards were filled out during work time, but they
were an "annoyance." He said he never complained to Re-
spondents about the cards; "There was not a big enough
complaint to complain." He said it was brought up at a
union meeting, however, by someone.
Patterson testified that, early in 1972 in conjunction with
a systems analyst (Forbes Company), he instituted for Re-
spondents a timesheet and work record (Resp. Exh. 11),
primarily for cost accounting purposes. It was used at the
Cove from February to July or August 1973, and reinstitut-
ed for a couple of months starting mid-April 1974.
Lynch said he received instructions from Patterson the
latter part of April to start keeping work logs and that,
since the backs of timesheets were too difficult to fill out,
he obtained cards for that purpose. He said he met two or
three times with the employees to show them how to fill out
the cards, and that filling them out after a job required
about half a minute. He said no one complained to him
about having to fill out the cards. They were discontinued
after 1 -1/2 or 2 months.
Analysis
Uncontradicted testimony shows that the information
required by the timecards is for cost accounting purposes,
and first was placed in use early in 1972. That testimony
also shows the information was gathered at the Cove dur-
ing temporary use of the forms in 1973.
Filling out the cards is a simple matter, requiring less
than a minute after each job. No employee complained to
Respondents about the cards. Leonardi testified that
Lynch told him the cards were going to be used on a tem-
porary basis.
General Counsel asks that the inference be drawn that
use of the cards was Respondents' reprisal for the employ-
ees' having engaged in protected activity. Evidence and
testimony do not provide the basis for making such an
inference. Filling out the cards is a trivial matter, was re-
quired but temporarily and at least one employee was so
told in advance, and information on the cards had a legiti-
mate business purpose. Testimony shows, and it is found,
that budget requirements were of considerable concern to
Respondents and to Lynch. Use of information on the
cards clearly was related to budget preparation and main-
tenance.
It is found that this allegation of the complaint was not
proved.
M. Alleged Refusal to Bargain
Paragraph XII of the amended complaint states: "On or
about April 10, 1974, and continuing to date, Respondents
have refused to recognize and bargain collectively with the
Union as the exclusive collective bargaining representative
of all employees in the unit described above in paragraph
IX."
On April 10, maintenance employees 14 at the Cove were
Atteberry, Fahey, Leonardi, Spanel, and Stoker. Lynch
talked with all employees on April 10 except Stoker, and
learned by questioning them that they had signed union
authorization cards.15 It is found that Lynch knew on April
10 that all the maintenance employees were represented by
the Union.
On April 10 Lynch received from George a letter re-
questing a bargaining session for the maintenance employ-
ees. It is found that the Union requested on April 10 that
Lynch bargain with it for said employees. It is also found
that Respondents have failed and refused to bargain with
the Union as requested.
As discussed above, certain 8(a)(1) and (3) violations
have been found. General Counsel requests a bargaining
order on alternative theories: an "unfair labor practice
theory," and a "polling theory."
General Counsel relies most heavily on the law enuncia-
ted in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). In that case, the Supreme Court held that a bar-
gaining order would be appropriate in two situations. The
first is in the case of "outrageous" and "pervasive" unfair
labor practices when the employer' s actions are so coercive
that , even in the absence of an 8(a)(5) violation, a bargain-
ing order is necessary to repair the unlawful effect of those
actions . The second is "in less extraordinary cases marked
by less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election process." In Ship Shape Maintenance Co., Inc., 189
NLRB 395 (1971), enforcement denied in part 474 F.2d
434 (C.A.D.C., 1972), the Board expressed the test to be
whether the lingering effects of the unfair labor practices
render uncertain the possibility that traditional remedies
can ensure a fair election, and whether the Union's majori-
ty card designations obtained before the unfair labor prac-
tice provide a more reliable test of the employees' desires
and better protect employee rights than would an election.
As stated in Joseph J. Lachniet d/b/a Honda of Haslett, 201
NLRB 855 (1973), where a coercive atmosphere is created
by the employer, which conventional Board remedies may
not adequately dissipate so that a fair election can be held
with reasonable certainty, a bargaining order is warranted.
Review of cases decided since Gissel show that the Board
and the courts have expanded Gissel in two ways. First, it is
now clear that employer unfair labor practices, in and of
14 it is found that all maintenance employees employed by Respondents
at Cove Apartments located in Tiburon, California; excluding office clerical
employees, guards and supervisors as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Sec. 9(b) of the Act, based on common supervision, work sdus, employee
contact and interchange , general working conditions , and common interests
of employees.
13 He later learned that Stoker also had signed a card.
E. S. MERRIMAN & SONS 983
themselves , do not necessarily warrant a bargaining order.
More must be found ; a fair election (past or future) must
be, or have been , precluded because of the unfair labor
practices . See, for example , Motown Record Corp., 197
NLRB 1255 (1972); Gold Circle Department Stores, Inc.,
207 NLRB 147 (1973); J.J. Newberry Company, 202 NLRB
420 (1973 ); Restaurant Associates Industries , Inc., 194
NLRB 1066 (1972); Central Soya of Canton, Inc., 180
NLRB 546 (1970). Second , no longer is it enough to view
unfair labor practices through a narrow tunnel, ignoring
other factors and changed circumstances . See, for example,
Peerless of America, Inc. v. N.L.R.B., 484 F.2d 1108 (C.A.
7, 1973); Clark's Gamble Corporation v. N.I,.R.B., 422 F.2d
845 (C.A. 6, 1970); N.L.R.B. v. Gibson Products Company of
Washington Parish, La., Inc., 494 F.2d 762 (C.A. 5, 1974).
Finally , it is Board policy to establish bargaining rela-
tionship by means of election rather than Board order,
when fair elections are not precluded by the employer's
conduct. Linden Lumber Div., Sumner & Co. v. N.L.R.B.,
419 U.S. 301 (1974).
As shown above, Respondents engaged in several viola-
tions of the Act, including interrogation , threats , solicita-
tions to withdraw union support , and discharges . The ques-
tion is whether that conduct precludes a fair election, or
whether a bargaining order is necessary to establish a bar-
gaining relationship between Respondents and their main-
tenance employees at the Cove.
It is noted at the outset that all violations of the Act
involved in this controversy were committed within a very
limited period of time-on April 10, 11, and 15. There is no
showing in the record of any antiunion action by Respon-
dents prior to April 10. To the contrary, Leonardi testified
that he told Lynch before Lynch hired him in January, that
he was a member of Local 39, and had been in the Local's
apprenticeship program. Yet, he was hired without ques-
tion . Atteberry testified that he had been a member of the
Teamsters for 10 years, and so told Lynch at the time he
was hired . He said no one in Respondents ' management
expressed any concern with that fact . Lynch hired all em-
ployees involved herein, but the record is devoid of any
showing of union animus at the time of any hire. Lynch
credibly testified that he, his father, and his grandfather
had been union members ; that his father was a labor lead-
er in San Francisco for many years ; and that he "grew up
in unions" and certainly had no objection to them. All
violations by Lynch occurred on April 10 and 11, and he
credibly testified that they were committed only because he
"lost his cool" when he unexpectedly learned that the em-
ployees were seeking union representation while he was
working diligently with management to obtain benefits for
them.
It is clear from the record that Patterson had no contact
with the employees prior to April 15 , and Dwight Merri-
man credibly testified that there is no policy of Respon-
dents' relative to unions . He said he never issued any in-
structions to Patterson relative to unions or union
membership.
So far as Respondents' post-April 15 actions are con-
cerned , it is abundantly shown that they made every effort
to avoid even the appearance of opposing union activity.
As noted in Respondents ' brief, and as shown by the rec-
ord, Respondents reinstated all 8(a)(3)'s within 2 days,
acknowledged to the 8(a)(3)'s Respondents ' error, and
made the employees whole for all losses incurred , because
of the discharges . Respondents have posted a Board notice
(Form 666) continuously since April 12 in conspicuous
places at the Cove , and that notice was seen by the mainte-
nance employees ; and Respondents clearly have made no
effort since April 15 to interfere with , restrain , or coerce
employees in their union activities . When Patterson com-
mitted the 8(a)(1) violations on April 15, he prefaced his
remarks with the statements : "to assure you that you have
every right to organize , to belong to a union or other orga-
nization that you wish to belong to ; and that you can be
fully assured that I myself , and our company , have no in-
tentions of trying to bring any intimidation , any kind of
punishment, or anything else, against you for this-for
anything that you might do in this regard-and that you
are perfectly free to belong to any union that you wish."
Patterson went too far in his conversations and did violate
the Act, but it is clear that he simultaneously advised em-
ployees of their rights under the Act. The record shows that
all the maintenance employees involved in this controversy
voluntarily 16 left their employment at the Cove , at various
times over the months following the April incidents; it was
stipulated by all counsel that they were not discriminatori-
ly discharged after their reinstatement and the record es-
tablishes that each left for his own reasons . The mainte-
nance unit now consists entirely of employees who were
not working at the Cove during April of 1974.
It is seen from the foregoing that far more is involved
than the commission of 8(a)(1) and (3) violations suggests
at first glance . The 8(a)(3) discharges promptly and com-
pletely were corrected. The 8 (a)(1)'s were compressed with-
in a very short time period . Lynch's actions of April 10 and
II were reflexive in nature , Patterson exceeded the pro-
scriptions of the Act, but his statements to employees on
April 15, and the Board notice posted from and after April
12, clearly communicate to employees the full extent of
theii rights under the Act. The record is devoid of any
word or act by Respondents prior to April 10 or after April
15 that shows any union animus , or attempt to interfere
with any union activity at the Cove . It is so found.
Present employees of the Cove are total strangers to any_
conversations or actions at the Cove in April 1974 . None of
them were shown to have been subjected to any restraint,
coercion or interference in their union or concerted activi-
ty. The Board notice referred to above remains posted in a
conspicuous place , advising employees of their rights. The
8(a)(3)'s lost neither money nor position as a result of their
discharges . General Counsel's witness Atteberry testified
that relations at the Cove between - employees and manage-
ment resumed a normal course after about 2 weeks from
the April 10-15 incidents . So far as the record shows, -the
Cove has been a quiet and normal work area since about
May I of 1974 . There is no basis for a finding that a bat-
gaining order should be issued . As stated in Peerless, Inc.,
v. N. L. R. B., supra:
Since it is the present work force that stands to be
16 The applicant Newbill was fired for cause , as discussed above.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deprived of exercising its free choice in the preferred
election process, the fact that it is substantially differ-
ent from the one which existed at the time of the mis-
conduct militates against issuance of a bargaining or-
der where , as here , that drastic remedy is not
otherwise clearly warranted. Here it simply reinforces
our conclusions that a bargaining order is clearly un-
warranted.
General Counsel raised an interesting point when he
quoted Gibson Products Company, 185 NLRB 362 (1970),
for authority that, in assessing employer conduct for possi-
ble issuance of a bargaining order, "the situation must be
appraised at the time of the commission of the unfair labor
practices, and not currently...." Gibson was remanded
by the Fifth Circuit to the Board for reconsideration of the
bargaining order aspect, and on August 27, 1970, the
Board affirmed its original bargaining Order. The Board
thereafter reopened , and remanded the case to a Trial Ex-
aminer to obtain a more complete record. In its Second
Supplemental Order dated October 17, 1972, the Board re-
affirmed its original Order of September 24, 1968. On ap-
plication of the Board for an enforcement order, the U.S.
Court of Appeals for the Fifth Circuit denied enforcement
in N.L.R.B. v. Gibson Products Co., supra, and said:
V. This case is a difficult one. The Board's findings
and conclusions leave something to be desired. The
law to be applied is somewhat confused . Lurking in
the background of the case is the unfair benefit the
employer may have obtained through delay, and that
one purpose of a bargaining order is to deter future
misconduct . See Gissel, supra, 395 U.S. at 612. But
when the Board issues an order to bargain at a time
when employee free choice can be determined by a
fair election, the remedy becomes punitive , rather than
remedial. Perl, The NLRB and Bargaining Orders:
Does a New Era Begin with Gissel? 15 Vill. L. Rev.
106, 118 (1969). Inasmuch as a free election can now
be held and the desires of the employees can be fairly
determined we will follow the thrust of Gissel: a fair
election is the best and preferred method of determin-
ing a bargaining representative.
The Fifth Circuit does not stand alone in its position that
the continuing effect of the misconduct is controlling, rath-
er than the effect of the misconduct at the time it was
engaged in , and that an election is the preferred method
unless such is precluded now because of the nature of the
employer's actions, rather than when the misconduct oc-
curred. That also is the position of the Seventh Circuit
Peerless, Inc. v. N.LR.B., supra, and N.L.R.B. v. Gruber's
Supermarket, Inc., 501 F.2d 697 (C.A. 7, 1974); and the
Sixth Circuit (Clark's Gamble Corporation v. N.L.R. B., su-
pra) and is the clear import of Linden Lumber Div., Sumner
& Co., supra.
I find that, even though the Union represented a majori-
ty of Respondents ' employees in an appropriate bargaining
unit at the time it demanded recognition , the Board's con-
ventional remedies are adequate to neutralize the effect of
Respondents ' unfair labor practices described herein and
that, therefore, a bargaining order is not warranted.
N. Alleged Refusal to Bargain
Paragraph XIII of the amended complaint states: "On
or about April 15, 1974, Respondents instituted the
changes described above in paragraph VIII, subparagraphs
(a) and (b), without affording prior notification to and bar-
gaining with the Union."
Based upon the findings set forth in paragraph M next
preceding, it is found that this allegation is not proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, I shall recommend that Respondents be ordered
to cease and desist therefrom , and from any other manner
infringing upon their employees ' Section 7 rights, and to
take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that all employees discharged April
10 in violation of Section 8(a)(3) of the Act were reinstated
by Respondents-April 12 and made whole for any and all
losses suffered by them, no order of reinstatement will be
issued.
Upon the basis of the foregoing findings of fact and the
record in this proceeding , I make the following:
CONCLUSIONS OF LAW
1. E. S. Merriman & Sons ; Merriman Management
Services, Inc., Respondents herein , are employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Stationary Engineers Local 39, International Union
of Operating Engineers , AFL-CIO, is a labor organization
within the ' meaning of Section 2(5) of the Act.
3. By coercively interrogating, threatening, and solicit-
ing employees concerning their union activities , Respon-
dents interfered with, restrained, and coerced said employ-
ees in the exercise of their rights guaranteed them by
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
4. By discharging Bill R. Atteberry, Tony Leonardi,
Steve Spanel , and Mike Fahey on April 10, 1974, Respon-
dents have engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. Respondents did not, through alleged conduct, vio-
late Section 8(a)(l) of the Act by threatening an employee
through its supervisor, Richard Kennon , on April 11, as
alleged in paragraphs VI(d) and (e) of the complaint.
E. S. MERRIMAN & SONS 985
6. Respondents did not , through alleged conduct, vio-
late Section 8(a)(3) of the Act by discharging employee
Larry Newbill (a k a Larry Hughes) for engaging in union
activities as alleged in paragraph VII(b) of the complaint.
7. By the action described in paragraph 4 above, and by
the independent 8(a)(1) violations described in paragraph 3
above, Respondents have interfered with, restrained, and
coerced, and are interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]