Flippo's & Co.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1275 (N.L.R.B. 1980)

FLIPPO'S AND COMPANY
Flippo's and Company, Presnell & Stowe Tank Com-
pany, Presnell & Stowe Welding Company, Inc.
and Earnest L. Blanchard. Case I 1-CA-8220
August 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 28, 1980, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an opposing 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, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondents did not discharge or fail to reinstate Ear-
nest L. Blanchard because he joined or assisted the
National Transient Division, International Brother-
hood of Boilermakers, Iron Shipbuilders, Blacks-
miths, Forgers, and Helpers, herein called the Boi-
lermakers.2 The Administrative Law Judge found,
instead, that Blanchard was terminated by Re-
spondent Presnell & Stowe Welding Company,
Inc., herein called P & S Welding, because he re-
fused to execute a personnel form that had been
completed by all of his fellow employees.
In reaching this conclusion, the Administrative
Law Judge discredited testimony which he regard-
ed as being essential to the General Counsel's case
against Respondents. In our view, there is ample
evidence aside from the discredited testimony to
support the finding that P & S Welding used Blan-
chard's failure to sign the personnel form as a pre-
text to fire him for his prounion position.
Blanchard, who at all material times herein was a
member of the Boilermakers, had worked as a
welder intermittently for P & S Welding for about
I The General Counsel 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 ie-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 The Administrative Law Judge dismissed the complaint with respect
to Respondent Flippo's and Company for want of jurisdiction. I'he Gen-
eral Counsel has excepted to that dismissal, but we find that we need not
decide that issue.
9 years, including during January 1979 when P & S
Welding was acquired by Respondent Presnell &
Stowe Tank Company, herein called P & S Tank.3
Although Blanchard was a union member, P & S
Welding's employees were not represented by a
labor organization.
At a meeting with P & S Welding employees on
January 31, 1979, 4 William Flippo, president of Re-
spondent Flippo's and Company, herein called
Flippo's, announced that P & S Welding had
"merged" with Flippo's "Virginia corporations."
Flippo testified at the hearing in this proceeding
that he misrepresented the sale as a "merger" in
order to deemphasize the transition and "make
things appear as smoothly as they could be."
In addition to being informed that their employ-
er was now part of another corporation, P & S
Welding employees also were instructed at the Jan-
uary 31 meeting to fill out employment "applica-
tions" and insurance forms. The "application" form
called for miscellaneous personal information of a
routine nature, such as address, telephone number,
next of kin, prior employment experience, and ref-
erences. The form also contained, immediately
above the space for the employee's signature, a
noncompetition provision which stated that, in the
event the employee left P & S Welding's employ,
the employee "would not pursue or accept a posi-
tion with a concern of competitive nature or one
contemplating serving a similar industry or trade
for five years." All 19 or 20 of P & S Welding's
employees, including Blanchard, filled out and
signed the applications during this meeting.
Blanchard, who was aware that Flippo's was a
signatory to the Boilermakers' National Transient
Agreement,6 asked Flippo during the meeting
whether P & S Welding would be unionized as a
result of the "merger." Flippo replied that he
would talk about that subject at a later time. As the
meeting was breaking up, Blanchard approached
Flippo privately and again asked whether P & S
Welding would become a union shop. Flippo did
not respond, but James A. (Jim) Stowe, who
owned P & S Welding until its sale and who was
standing nearby, told Blanchard that P & S Weld-
ing would remain nonunion. After Blanchard
walked away, Flippo asked Stowe if Blanchard
was a union member and was advised that he was.
3 As fully set forth by the Administrative Law Judge, P & S Tank was
created by Flippl's and Company solely for the purpose of acquiring P &
S Welding The creation of P & S Tank and the acquisition of P & S
Welding occurred simultaneously in January 1979
4 Unless otherwise indicated, all dates hereinafter refer to 1979
b In fact, Flippo's and the Boilermakers had not renewed their contract
when it expired on December 31. 1978. and thus. on the date of the meet-
ing in question. none of Respondents had a collective-bargaining agree-
ment with a union Blanchard, apparently, was not aware of this fact
250 NLRB No. 145
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About an hour after the January 31 meeting,
Blanchard asked Flippo about the noncompetition
clause in the application form which he earlier had
signed and submitted. (Blanchard, who apparently
does not read or write very well, was assisted in
completing the form by P & S Welding's corporate
attorney, and did not notice the clause until it was
brought to his attention by Jim Stowe's son, James
P. (Jimmy) Stowe, after Blanchard had turned in
the form.) When Blanchard requested that his sig-
nature be removed from the form to indicate that
he would not be bound by the noncompetition
clause, Flippo assured him that the clause had
never been used against a welder, that it would not
be enforced against him, and that, in fact, Flippo
probably would help Blanchard get started if in the
future he desired to go into business for himself.
During this conversation, Flippo remarked to Blan-
chard: "I know you're union. I am, too. I carry a
book, too."
On February 1, Blanchard telephoned Thomas
Livengood, a Boilermakers representative who had
an established business relationship with Flippo's,
and asked whether P & S Welding would be orga-
nized as a result of the "merger." Livengood then
called Flippo to ascertain whether there had been a
merger of Flippo's with P & S Welding. Flippo ex-
plained to Livengood that there had been no
merger and stated that he was not prepared to dis-
cuss the situation any further at that time. To date,
the Boilermakers has not tried to organize P & S
Welding's employees.
A day or two after the January 31 meeting, Phil-
lip Dowdy, the new president of P & S Welding,
allegedly discovered that his file of completed em-
ployee application forms did not include that sub-
mitted by Blanchard. 6 Blanchard's was the only
application to turn up missing. Subsequently, when
Blanchard returned to the plant from a field assign-
ment on February 9, Dowdy told him that his
original application had been lost, and asked him to
complete a new one. Blanchard said that he would
fill out another application, but that he would not
sign it because he objected to the noncompetition
clause. Dowdy then instructed Blanchard not to go
on an out-of-town job that he was scheduled to
begin on Sunday, February 11, but instead to stay
near and see Flippo about the matter when he
came to the plant the following week. When Blan-
chard informed Dowdy that he would not sign the
form even if it meant he would be fired, Dowdy
6 Dowdy testified that Blanchard's original application form inadvert-
ently had been taken to the Richmond, Virginia, office of the corporate
attorney who had assisted Blanchard in its completion and that the miss-
ing form was not discovered in the attorney's files until several weeks
after Blanchard was terminated.
replied, "You've already quit as far as I'm con-
cerned."
Blanchard ultimately met with Flippo, Dowdy,
and Jim Stowe on February 14. Throughout this
hour-long meeting, Flippo evidently took the posi-
tion that Blanchard had quit his employment
during the discussion with Dowdy on February 9.
At the beginning of the meeting, Flippo told Blan-
chard that he knew that Blanchard had called Boi-
lermakers Representative Livengood about unioniz-
ing P & S Welding, but that he would not fire
Blanchard because that would give Blanchard the
opportunity to "take them to the Labor Board."
Flippo told Blanchard during the February 14
meeting that, if he wanted to remain employed at P
& S Welding, he would have to accept a janitorial
job at greatly reduced hours and pay, rather than
continue in his full-time, higher-paying welder's
job. Although Respondents contend in their brief
that Blanchard would have retained his welder's
job merely by signing a new application form, both
Flippo and Dowdy admitted at the hearing that
Blanchard was not offered the opportunity during
the February 14 meeting to continue working as a
welder, but instead was told that the only position
available for him at P & S Welding was "clean-
ing." (Nevertheless, P & S Welding advertised in
the local newspaper for welders on the following
day, February 15.) In addition, Flippo acknowl-
edged that, during the February 14 meeting, he and
Dowdy "never got around to asking Blanchard to
sign an application." Flippo and Dowdy also testi-
fied that they told Blanchard that he could have
part-time work "cleaning up," even if he failed to
complete another application form. Blanchard de-
clined the offer of janitorial work and subsequently
he secured a welder's job with another employer.
According to Respondents, there is no evidence
of union animus involved in Blanchard's separation
from P & S Welding. They explain the events sur-
rounding Blanchard's termination as a situation in
which an employee was confronted with a simple,
new requirement of his employer (viz, signing an
application) arising from a change of ownership
and procedures, and the employee decided to quit
his job rather than comply with that new require-
ment. Respondents assert that they gave Blanchard
the option of signing the application or accepting
lower paying work, but, when neither of those al-
ternatives were to his liking, he left. The Adminis-
trative Law Judge agreed and, therefore, dismissed
the complaint.
The General Counsel contends that the facts es-
tablish that Respondents constructively discharged
Blanchard because of his union activity by offering
him the choice of performing janitorial work or
1276
FLIPPO'S AND COMPANY
nothing. The General Counsel maintains that Re-
spondents' union animus is shown by Flippo's in-
quiry into Blanchard's union membership, Jim
Stowe's telling Blanchard that P & S Welding
would not be unionized, and Flippo's statement to
Blanchard that he knew that Blanchard had called
the Boilermakers, but that he was not going to dis-
charge him because he knew that Blanchard would
go to the Labor Board. We find merit in the Gen-
eral Counsel's contention.
The fundamental weakness of the reasons offered
by Flippo and Dowdy as to why Blanchard had to
sign a second application strongly suggests that his
refusal to complete the form was used as a pretext
to mask the true reason for his discharge. In our
view, Flippo, upon learning of Blanchard's prefer-
ence for the Union, decided that he should be dis-
charged, or at least put in a situation which would
make him want to quit.
Respondents assert that it was necessary for
Blanchard to complete a second application be-
cause his original one was lost. They claim that
they needed Blanchard to complete another appli-
cation because the information therein was vital to
their operations. As indicated above, however,
Blanchard at all times was willing to fill out a
second application and thus provide the informa-
tion which Respondents sought to obtain. Despite
this willingness, Respondents maintain that any in-
formation so provided would have been inadequate
because Blanchard would not "verify" it by affix-
ing his signature to the form. According to
Dowdy, two of the primary purposes of the appli-
cation were to furnish P & S Welding with infor-
mation so that it would be able to recall workers
when they were needed and so it could notify an
employee's next of kin in case of an accident or
other emergency on the job.
In fact, P & S Welding already had Blanchard's
address readily available from his W-2 form and
other papers that he had submitted during his 9
years of employment with the firm. The fact that P
& S Welding never had any difficulty in contacting
Blanchard about returning to work during those
previous 9 years indicates that Respondents' assert-
ed need for his "verification" of the information
provided on the application was contrived as a
way to get rid of him.
The above is borne out by Dowdy's concession
that the original form had been located several
weeks after Blanchard left P & S Welding's
employ, but that no effort was made to contact
Blanchard to inform him that the Company now
had a signed application of his in its personnel files.
In view of their professed need for Blanchard's sig-
nature on an application, Respondents' failure to
notify Blanchard of its discovery of his application
at that point renders its asserted reason suspect.7
The pretextual nature of Respondents' actions
also are shown by Flippo's offer to retain Blan-
chard as a janitor, even absent his signature on a
second application form. We are not persuaded by
Respondents' assertion that it was essential that
every employee sign an application when converse-
ly Respondents were willing to keep Blanchard on
as a cleaning employee even if he would not sign a
second application. This inherently contradictory
policy leads us to conclude that Respondents' at-
tempt to demote Blanchard from welder to janitor
did not arise from his refusal to sign a second ap-
plication, but rather is explained by his interest in
bringing the Union into the P & S Welding shop.
Blanchard, as credited by the Administrative
Law Judge, denied telling anyone that he was quit-
ting on February 9. Thus, Flippo's and Dowdy's
insistence from the start of and throughout the
February 14 meeting that Blanchard was no longer
a P & S Welding employee, as well as their failure
to ask him to sign an application then, demon-
strates that they were intent on dismissing-for
whatever reason could be concocted-an employee
whom they knew to be a union adherent.
In the totality of the circumstances of this case,
we do not find plausible the explanation advanced
by Respondents for Blanchard's termination. We,
therefore, conclude that the General Counsel has
satisfied his burden of proving that requiring Blan-
chard's signature on a second application form was
pretextual, and that the actual reason for his termi-
nation was his prounion activity. Accordingly, we
find that Respondents have violated Section 8(a)(3)
and (1) of the Act by constructively discharging
Blanchard.
THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act,
we shall order that they cease and desist therefrom,
and take certain affirmative action designed to ef-
fectuate the policies of the Act.
In this respect, our usual remedy would be to
order Respondents to offer Blanchard full reinstate-
ment to his former job without prejudice to his se-
niority or any other rights or privileges previously
enjoyed, and to make him whole for any loss of
I Dowdy attempted to explain away this failure by saying he had
heard "one of the guys in the shop say" that Blanchard had another job
and that, in any event, P & S Welding had a full crew of men at the time.
We do not believe that this explanation withstands scrutiny in light of the
circumstances; namely, that the original application had been lost through
Respondents' fault, they knew that Blanchard had wanted to remain as a
welder with the Company, and they were acting on the basis of a rumor.
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings that he may have suffered as a result of
the discrimination practiced against him, from the
date of his discharge to the date of his reinstate-
ment or an unconditional offer of reinstatement.
However, at the hearing in this proceeding, Re-
spondents stated that they were offering Blanchard
unconditional reinstatement as a welder at the same
pay rate he previously had. Further, the remedy
sought by the General Counsel in his brief to the
Board is limited to an order that Blanchard be
made whole and a notice be posted. It would
appear, therefore, that Respondents did make an
unconditional offer of reinstatement on the date of
the hearing, July 5, 1979, which would terminate
their backpay liability on that date.8 Thus, in these
circumstances, we shall fashion a remedy whereby
Respondents will be required to make Blanchard
whole for any loss of earnings that he may have
suffered from the date of his discharge to the date
of their unconditional reinstatement offer on July 5,
1979. Backpay shall be computed with interest
thereon in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
Presnell & Stowe Welding Company, Inc., and
Presnell & Stowe Tank Company, Hickory, North
Carolina, their officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against, employees for their membership in, support
for, or activities on behalf of, the National Tran-
sient Division, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers,
and Helpers.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Make whole Earnest L. Blanchard for any
loss of earnings which he may have suffered as a
result of the discrimination practiced against him,
in the manner prescribed in the section of this De-
cision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
a There is no indication in the record whether Blanchard accepted or
refused the offer of reinstatement.
I See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facility in Hickory, North Caroli-
na, copies of the attached notice marked "Appen-
dix."1 0 Copies of said notice, on forms provided by
the Regional Director for Region 11, after being
duly signed by Respondents' authorized representa-
tive, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11,
in writing, within 20 days from the date of this
Order, what steps Respondents have taken to
comply herewith.
"' 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise dis-
criminate against our employees for their
membership in, support for, or activities on
behalf of, the National Transient Division, In-
ternational Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers, and Help-
ers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL make Earnest L. Blanchard whole
for any loss of earnings which he may have
suffered as a result of our discrimination prac-
ticed against him, from the date of his dis-
charge to the date of our valid offer of rein-
statement to his former job, together with in-
terest.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of
the National Transient Division, International
Brotherhood of Boilermakers, Iron Shipbuilders,
1278
FLIPPO'S AND COMPANY
Blacksmiths, Forgers, and Helpers, or any other
labor organization of their choosing.
PRESNELL & STOWE TANK COMPA-
NY, PRESNELL & STOWE WELDING
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS, Administrative Law Judge: This case
was heard at Newton, North Carolina, on July 5, 1979.
It stemmed from a charge filed by Earnest L. Blanchard
on March 14, 1979, claiming that Presnell & Stowe
Welding Company, Inc. (P & S), fired him because of his
affiliation with the National Transient Division, Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers, and Helpers (the Boilermakers).
The charge was amended on April 10, 1979, to include
two companies affiliated with P & S as additional re-
spondent-employers (Presnell & Stowe Tank Company,
and Flippo's and Company). The complaint was issued
on April 17, 1979.
FINDINGS OF FACT
1. JURISDICTION
Respondent P & S is located in Hickory, North Caroli-
na. It assembles and erects storage tanks (such as elevat-
ed water storage tanks). P & S admits that it receives
goods from and ships goods to points outside North
Carolina valued in excess of $50,000. '
The Boilermakers is a labor organization within the
meaning of Section 2(5) of the Act.
II. SUMMARY OF THE FACTS
Most of the basic facts are undisputed. Blanchard is a
welder. He had worked off and on for P & S for about 9
years and was employed by P & S in January 1979. P &
S was not unionized. Blanchard, however, was a member
of the Boilermakers.
In January 1979 P & S was acquired by Flippo's and
Company (via Presnell & Stowe Tank Company).2 On
January 31 William Flippo called the P & S employees
together for a meeting that had two purposes: First, so
that the employees could meet Flippo and get his reas-
surance about the business and their jobs continuing; and
second, so that the employees could be given, and could
I P & s is the wholly owned subsidiary of Presnell & Stove Tank
Company. Flippo's and Company created Presnell & Stowe Tank Com-
pany solely for the purpose of acquiring P & S. Under the circumstances
the Board may assert jurisdiction over Presnell and Stowe Tank Compa-
ny (even though nothing in the record indicates the level of that compa-
ny's interstate business). Flippo's and Company, on the other hand, while
indirectly owning at least a majority share of P & S, is a company with
an ongoing business and with a location and management different from
that of P & S. Because of that, and because nothing in the record indi-
cates whether Flippo's and Company is engaged in interstate commerce,
the complaint should be dismissed for want of jurisdiction as respects
Flippo's.
2 The acquisition was not made final, as a technical matter, until Fe-
buary I. 1979.
fill out, "application" forms intended to provide informa-
tion to insurers Flippo's and Company said they needed.
The application forms called for miscellaneous person-
al information, all of a very routine nature. 3 But they
also contained the following provision, immediately
above the space for the employee's signature: "It is . . .
understood should our relationship terminate, I would
not pursue or accept a position with a concern of com-
petitive nature or one contemplating serving a similar in-
dustry or trade for five years."
All of the employees, including Blanchard, filled out
the applications and signed them.
At that same meeting Blanchard asked whether P & S
was going to be unionized as a result of the acquisition.
(Flippo's and Company had been unionized, and Blan-
chard knew that.) Blanchard did not get an answer then.
But later, with Flippo standing by, James Stowe, who
had owned P & S until its sale to Flippo's and Company,
told Blanchard that P & S would remain nonunion. That
led Flippo to ask Stowe whether Blanchard was a union
member. Stowe knew that Blanchard was and answered
affirmatively.
About an hour after that sequence of events, Blan-
chard asked Flippo about the noncompetition clause in
the application. (Blanchard could not read or write very
well and did not notice the clause until James Stowe's
son, Jimmy Stowe, Jr., pointed it out to him.) 4 Flippo
told Blanchard that the clause would not be enforced
against him and that, in fact, if Blanchard wanted to go
into business on his own, Flippo would help him get
started.
Then, a day or two after Flippo's meeting with the P
& S employees, two things of relevance here occurred.
First, Phillip Dowdy, the new president of P & S, dis-
covered that his file of completed application forms did
not include Blanchard's. And second, Stowe Jr. told
Blanchard that, as Blanchard testified, the Company was:
. . . going to ask me to fill out another application
and if I wouldn't sign it, then they were going to
fire me. If I did, they would find some other reason
to.
Blanchard subsequently went out of town on a field
assignment for P & S. Dowdy left word for Blanchard to
report to the office when he returned. Blanchard did so
on or about February 9. Dowdy told Blanchard to fill
out a new application form. Blanchard said he would fill
it out, but not sign it. When Dowdy insisted, Blanchard
left the factory.
Blanchard then sought to meet with Flippo, and did so
on Febuary 14 (with Dowdy and, for some of the time,
Stowe Sr., also present). The meeting was a long, con-
fused, and angry one. It is probable that in its course
Flippo told Blanchard that he (Flippo) knew that Blan-
chard had called the Boilermakers about unionizing P &
S and that Flippo was not going to fire Blanchard be-
' The application form was introduced into the record a G.G Exh 3.
' James Stowe, the father and prior owner orf P & S. will henceforth
be referred to as "Stowe Sr." Jimmy Stowe, the son. will be referred to
as "Stowe Jr."
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause Blanchard would then "take them to the Labor
Board." And while other offers may have been made, it
is clear that at one point Blanchard was told that if he
wanted to return to work at P & S he would have to
work as a janitor at substantially reduced wages. The
meeting ended when Blanchard walked out.
Blanchard earnestly believes, and the General Counsel
argues, that P & S's insistence that Blanchard fill out a
second application form, and P & S's subsequent offer of
a janitorial position, were based on his prounion posture.
Respondents claim that Blanchard's unionism had noth-
ing whatever to do with their actions, and that, up at
least through the beginning of the February 14 meeting,
all that Blanchard had to do to retain his job as a welder
with P & S was to execute the same kind of form that
had been completed by every other P & S employee.
III. THE EVIDENCE OF RESPONDENT'S ANTIUNION
DISCRIMINATION
The General Counsel's case hinges on the testimony of
James Stowe, Jr., and, to a lesser extent, the Stowe Jr.
statement to Blanchard about which Blanchard testified.
Stowe Jr. is Stowe Sr.'s only son and a friend of long
standing of Blanchard. Stowe Jr. had been employed by
P & S until its sale to Flippo's and Company. Stowe Jr.
had held the title of P & S vice president, but well
before the sale Stowe Sr. had relieved Stowe Jr. of the
supervisor position the latter had held, although not his
title. That resulted in a situation in which Stowe Jr., who
was son of P & S's owner, technically a P & S officer,
and an erstwhile supervisor, was doing nonsupervisory
work in the charge of an employee he had previously su-
pervised. From Stowe Jr.'s point of view, his father's
sale of P & S made a bad situation even worse. Finally,
Flippo told Stowe Jr. that, in order to continue to work
for P & S, Stowe Jr. would have to enter into a noncom-
petition agreement. That was the last straw for Stowe
Jr., and he quit.
According to Stowe Jr., Flippo's anti-Blanchard atti-
tude first surfaced soon after the January 31 meeting.
Stowe Jr. testified that, in a meeting between Flippo and
the two Stowes, Flippo announced that he was opposed
to unions and in view of Blanchard's prounion stance
wanted to get rid of Blanchard.
Stowe Jr. further testified that Flippo raised the sub-
ject again on February I (the following day). Flippo al-
legedly said that he planned to handle the situation by
telling Blanchard that Blanchard would have to sign an-
other employment application, would fire him if he re-
fused to sign, and would offer him only a low-paying,
menial job if he did.
According to the General Counsel, that testimony,
when coupled with the circumstances outlined earlier,
shows that Blanchard was fired for his prounion position.
On the Company's part, Flippo denied Stowe Jr.'s alle-
gations. (While Flippo's denial was generally direct,
Flippo also said that "Jimmy Stowe was confused when
he made his testimony." The General Counsel argues
that that does not amount to a denial, but at the hearing
it was evident that Flippo considered Stowe Jr.'s testi-
mony too preposterous to be believed; and that Flippo
used the mild "was confused" terminology because that
is Flippo's style of speaking, and because of Stowe Jr.'s
youth, his relationship to Flippo's new business associate,
Stowe Sr., and Stowe Jr.'s down-on-his-luck circum-
stances. 5 As far as requiring Blanchard to sign a second
copy, the Company claims that that was solely a func-
tion of Blanchard's original application form being mis-
placed (by the attorney for the Company who had at-
tended the January 31 meeting). 6 Finally, the Company
claims that even during the last tumultuous meeting that
Blanchard had with Flippo: (1) Blanchard could initially
have gotten his welding job back if he had simply signed
the application form, and (2) Blanchard never did make
it clear why he would not sign the form.
Analysis and Conclusions
Stowe Jr.'s testimony is not credible. Based on my ob-
servation of Flippo as he was testifying, it is hard to
imagine Flippo telling anyone that he was going to engi-
neer Blanchard's departure because of Blanchard's
prounionism. And in view of the vast differences be-
tween the personalities and circumstances of Flippo and
Stowe Jr., it is impossible to believe that Flippo would
confide anything to Stowe Jr.-even apart from the fact
that the alleged remarks involved a friend of Stowe Jr.'s.
Moreover, Stowe Jr.'s background-one disappointment
after another, displeasure with his father's sale of P & S,
and friendship with Blanchard-would alone have made
his testimony suspect.
And absent Stowe Jr.'s testimony, there is no case
against the Company. Flippo did ask if Blanchard was a
union member, but in the context in which the question
was asked-Blanchard just having asked whether the
Company was going to go union-it signified nothing.
As for requiring Blanchard to sign a second question-
naire, I am convinced the problem came about as the
Company claims: because of a misplaced form.
I recognize that Stowe Jr.'s testimony is supported by
Blanchard's testimony that Stowe Jr. advised Blanchard
that the Company was going to attempt to get rid of
Blanchard by demanding that he sign another application
form. But even assuming the accuracy of Blanchard's
testimony, Stowe Jr.'s prediction could easily have been
based on a combination of innocuous statements by com-
pany officials coupled with misplaced speculation by
Stowe Jr. In fact, that could be the only basis of Stowe
Jr.'s prediction since, as discussed above, no company of-
ficial would have confided in Stowe Jr.
CONCLUSIONS OF LAW
1. Neither Presnell & Stowe Welding Company, Inc.,
nor Presnell & Stowe Tank Company, nor Flippo's and
Company either discharged or failed to reinstate Earnest
L. Blanchard because he joined or assisted a labor orga-
a Apart from Stowe Jr.'s other problems. he apparently had badly hurt
one foot prior to the hearing. He came to the hearing on crutches and
wearing a cast.
I The attorney had helped Blanchard fill out the form.
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FLIPPO'S AND COMPANY
nization or because he engaged in any other concerted
activity. 7
7 Neither the complaint nor the General Counsel's brief claimns that
any statement by any of the Respondent Companies' agents violated the
Act in any respect.
2. There has been no showing that Flippo's and Com-
pany and Presnell & Stowe Welding Company, Inc., are
a single employer for purposes of the Act or that the
Board's jurisdictional standards have been met with re-
spect to Flippo's and Company.
[Recommended Order for dismissal omitted from pub-
lication.]
1281