Heritage Fire Protection

National Labor Relations Board - Board Decisions

Jun 8, 1992

307 N.L.R.B. 824 (N.L.R.B. 1992)

824
307 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutiions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Hereinafter all dates are in 1990 unless noted otherwise.
2 Hereinafter called the Union.
3 The appropriate unit set forth in the agreement is:
All employees engaged in field installation of fire protection,
plumbing, and piping systems, employed by the Employer at its
Cannonsburg, Kentucky facility, including all laborers, helpers,
installers, journeymen and apprentices, but excluding all full-
time shop employees engaged in shop fabrication, office clerks,
designers, estimators, janitorial employees, and all professional
employees, guards and supervisors as defined in the Act.
4 Hereinafter called the Respondent, Employer, or Company.
Heritage Fire Protection, Inc. and United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada, Local 669, AFL–
CIO. Cases 9–CA–27659, 9–CA–27707, and 9–
RC–15699
June 8, 1992
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 26, 1991, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Heritage Fire Protection,
Inc., Cannonsburg, Kentucky, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 9 shall, pursuant to the Board’s Rules and Regu-
lations, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots cast
by Michael Kincaid, Jeff White, Terry Osborne, and
Mark Bussey, and cause to be served on the parties a
revised tally of ballots. In the event that the Union re-
ceived a majority of the votes cast according to the re-
vised tally, the Regional Director shall issue a certifi-
cation of representative. In the event that the Union
did not receive a majority of the votes cast according
to the revised tally, it is further directed that the elec-
tion conducted on June 29, 1990, is set aside and that
a new election be conducted in accordance with the
following.
[Direction of Second Election omitted from publica-
tion.]
David L. Ness, Esq., for the General Counsel.
Fred F. Holroyd, Esq. (Holroyd & Yost), of Charleston, West
Virginia, for the Respondent.
David L. Neigus (Beins, Axelrod, Osborne & Mooney), of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. These
consolidated cases were tried before me December 3, 4, and
5, 1990,1 in Ashland, Kentucky.
On May 8, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 669, AFL–CIO2 filed the
petition in Case 9–RC–15699. The National Labor Relations
Board, pursuant to a stipulated Election Agreement, approved
by the Regional Director, Region 9, on June 19, conducted
an election on June 29, among certain employees3 of Herit-
age Fire Protection, Inc.4 The results of the election were
two votes for the Union, four votes against the Union, and
six ballots challenged, a number sufficient to affect the re-
sults of the election. Following the election, timely objec-
tions were filed by the Union.
On July 3, the same date it filed its objections, the Union
filed the charge in Case 9–CA–27659. On July 23, it filed
the charge in Case 9–CA–27707.
On August 10, the Regional Director issued a report on
challenged ballots, objections to election, and recommenda-
tions to the Board in the representation case, and on August
20, he issued an order consolidating cases, consolidated com-
plaint and notice of hearing consolidating for hearing the two
unfair labor practice cases. On September 17, all three cases
were consolidated for hearing.
Respondent filed a timely answer to the consolidated com-
plaint in which it denied the commission of any unfair labor
practices.
825HERITAGE FIRE PROTECTION
5 The complaint and answer, as amended at the hearing, alleges
and admits that the Board has jurisdiction herein and that the Union
is a labor organization within the meaning of the Act.
6 Hereafter called Claude.
7 Hereafter called Philip.
The issues in these consolidated cases are as follows:
Case 9–RC–15699
The Challenges:
The eligibility of Stephen Conn, Michael Kincaid, Michael
Wilks, Jeff White, Terry Osborne, and Mark Bussey.
The Objection:
The Regional Director, in his report of August 10, rec-
ommended that all the Union’s objections be overruled ex-
cept for Objection 6 which should be heard by the adminis-
trative law judge in the instant proceedings. In Objection 6,
the Union alleges that the Employer terminated employee
Mark Bussey because of his activities on behalf of the
Union. The Employer denies that it engaged in any objec-
tionable conduct and asserts that Bussey was discharged for
cause. The alleged objectionable conduct described in Objec-
tion 6 is coextensive with the unfair labor practice alleged
in paragraph 5(a) of the consolidated complaint and will
therefore be considered below in the section of this decision
dealing with the alleged unfair labor practices.
Cases 9–CA–27659 and 9–CA–27707
The substantive allegations contained in these consolidated
complaints are:
(a) On or about June 4, 1990, Respondent discharged
its employee Mark Bussey.
(b) On or about July 2, 1990, Respondent laid off its
employee Duncan Smith.
(c) On or about July 9, 1990 Respondent laid off its
employee James Adams.
At the hearing, General Counsel moved to amend the com-
plaint by adding two additional 8(a)(1) allegations. The mo-
tion to amend was granted.
The first amendment reads as follows:
Respondent, acting through Philip Hutchison, on or
about May 11, 1990 at its Cannonsburg, Kentucky fa-
cility, forcibly interrogated an employee regarding his
union membership, activities and sympathies.
The second amendment reads as follows:
Respondent, acting through Philip Hutchison, during
early June, 1990, at its Cannonsburg, Kentucky facility,
threatened employees with loss of employment if em-
ployees voted for the Union.
The above-described challenges and the cited objection and
allegations together with Respondent’s denials of the allega-
tions frame the issues. Representatives of all parties were
present and participated in the hearing and filed briefs.
Based on the entire record, including my observation of
the demeanor of the witnesses and after giving due consider-
ation to the briefs, I make the following
FINDINGS OF FACT5
Background
Respondent is a corporation engaged in the business of
fabricating, repairing, installing, and inspecting sprinkler sys-
tems. Its principal officers, Claude Hutchison,6 Philip
Hutchison,7 and Kevin Cleveland, had been employees of
Patton Construction Company’s sprinkler department, but in
February 1989, left the employ of that company to found
Heritage Fire Protection, Inc. Several of Patton’s employees
transferred over to Heritage at its inception and began work-
ing for Respondent, performing the same work that they had
performed previously for Patton. Among those brought over
from Patton were Mark Bussey whose installation ability is
admittedly excellent, David Haymond, and Bruce Livesay.
Philip, Respondent’s vice president and treasurer, informed
these three field employees that they would be bosses with
the new company and that the foremanship would be rotated
among them, as it had been with Patton. One day, on one
job, one of them would be boss over the other two. On the
next job, one of the others would be in charge. Philip added
however, that if Jeff White were on the job, he would always
be the boss because he had the most experience.
Initially, while the Company was still small, the jobs oper-
ated as Philip had said they would. Haymond and Bussey
usually worked together and rotated the foremanship while
Livesay and White worked together with White in charge.
Later, when the Company expanded, Haymond and Bussey
worked on separate jobs, each in charge of his own job and
helper. If Haymond or Bussey were transferred to the other’s
job, whoever was there first remained in charge.
Though these foremen were in charge of their own jobs,
each was expected to work with his tools. On a normal day
they would work 10 or 12 hours wrenching and installing
pipe and sprinkler heads. The foremen and their helpers, on
most jobs, did an equal amount of manual labor. In most in-
stances, the crews consisted of the foreman and helper.
Sometimes, however, a foreman would have two or three in
his crew.
As the Company obtained additional contracts, it expanded
its work force by hiring new employees, some experienced,
others with little or no experience. In April 1989 it hired
Duncan Smith and put him to work in the shop in
Cannonsburg, where new hires without experience were ini-
tially employed, in order to give them hands-on experience
before they were sent out into the field. Smith worked in the
shop for 3 or 4 weeks learning about the pipes, fittings, and
types of hangers; threading and fabricating pipe, preparing it
for the field. This type of work is not considered skilled.
After completing this apprenticeship program, Smith was
sent out with Bussey to work in the field.
In the summer of 1989, Respondent hired James Adams.
Adams had been engaged in pipefitting work since 1969. He
had installed sprinklers before coming to work for Heritage
and had worked as a subcontractor for Heritage before going
on its payroll. Philip was aware of Adams’ experience and
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
skill in installing sprinkler systems, so did not require him
to work in the shop before sending him out in the field.
Adams had an Ohio license to install and inspect sprinkler
systems. This fact made him additionally valuable to Re-
spondent. Respondent hired Greg Sigler in July 1989. He,
like Duncan Smith, first worked a couple of weeks in the
shop before being sent out to work at the Ashland Mall
project, one of Respondent’s biggest jobs. Similarly, Re-
spondent subsequently placed newly hired employees Warren
St. Clair, Eric Miller, Frank White, and Tice Shelton in the
shop for training before they were sent out on field projects.
On December 11, Respondent obtained a contract to install
sprinkler systems in the J.C. Penney, Elder Beerman, and
Sears stores and the Hoyts Cinema in the Morgantown, West
Virginia Mall as well as in parts of the mall itself. This con-
tract represented the largest contract, to date, that Respondent
had ever obtained. Bussey was unanimously chosen by Phil-
ip, Claude, and Cleveland to be the foreman over the entire
project.
Philip advised Bussey, in January, that he had been chosen
to run the Morgantown job, and that it had been between
Haymond and him. Bussey told Philip that he appreciated
and accepted the opportunity, that he had never run a project
that size, with that many men to boss before, and this was
true.
The Question of Bussey’s Supervisory Status
Bussey credibly testified that his duties at Morgantown
primarily involved the manual installation of sprinkler sys-
tems. Virtually his entire workday, he worked with his tools
along with the other installers and helpers. However, Philip
had advised him that he was also to check with the men,
from time to time to see if they were having any problems
with their installation work which they could not solve them-
selves; such mechanical problems as ductwork or steel beams
interfering with the proper installation of the piping in ac-
cordance with the blueprints. This he did. If there were prob-
lems which were minor in nature, the workmen would usu-
ally make the changes and tell Bussey about it later. Occa-
sionally, a workman with a problem would bring it to
Bussey’s attention, in which case, he would tell him what to
do. If the problems were major, Bussey would contact the of-
fice and describe the problem before proceeding. A major re-
routing of piping would have to be cleared through higher
management.
Another one of Bussey’s duties was to attend the regular
Tuesday meetings called by the general contractor’s super-
intendent wherein the latter would discuss with the foremen
of the various subcontractors, including Bussey, rules, regula-
tions or problems, in connection with the project. The object
of these meetings was to coordinate the efforts of the dif-
ferent contractors and crafts, and to schedule their work so
as to progress in the most efficient manner toward the com-
pletion of the project.
Sometimes these Tuesday meetings would result in the su-
perintendent advising Bussey of changes in the scheduling.
He might request Respondent to start work early at a new
location, Sears or Elder Beerman; to bring more men on the
job in order to expedite construction; to change the installa-
tion schedule; or to reroute sprinkler lines to accommodate
the installation problems of other subcontractors. These re-
quests, unless of a minor character, would be forwarded by
Bussey to Philip for decision.
Claude testified that, in its early stages, the Morgantown
project went well and he felt justified in his faith in Bussey’s
ability to run the job. Bussey, before the project began, and
during its first few months, showed a good deal of interest
in the plans and in how the job progressed. There were no
problems. What few there were, Bussey solved himself, or
in consultation with Claude, at the end of the workweek,
when he returned to the shop from the project. At these
weekend meetings, Bussey would show Claude, on the blue-
prints, what progress had been made on the job and advise
him what materials would be needed for the job, the fol-
lowing week.
The project, under the contract, required that Respondent
have both an offsite and an onsite representative. Philip was
the offsite representative and was responsible for the design
and engineering work on the job, for invoicing and for the
general progress of the job. Rentenbach, the general con-
tractor, would contact Philip if any problems arose in these
areas.
Bussey was Respondent’s onsite representative and was
present at the jobsite every workday. He was in charge of
the entire project and of coordinating the work of the other
foremen on the job. He was to instruct and assign work to
employees on the job, to solve any problems which arose
and which were brought to his attention by the general con-
tractor, and to report on such problems to Philip. Bussey
served as the main conduit between the employees and the
general contractor on one hand and Respondent’s upper man-
agement on the other. Although the contract gave authority
to both the onsite and the offsite representatives to establish
pricing for extra work, in practice, only Philip, not Bussey,
did this.
Philip, Cleveland, and other subcontractor and tenant rep-
resentatives visited the jobsite for 2 days early each month
to discuss with the general contractor the progress of the job
and to work on pricing so that invoices could be sent out.
Meetings with the representative of the general contractor
would take place in each of the areas where Respondent had
a job in progress. Each meeting would last an hour or so and
the entire first day would thus be spent until 5 p.m. On the
evening of the first day and after additional meetings with
the general contractor on the second day, Philip would visit
with Bussey and Respondent’s other employees for 2 or 3
hours and look over the work in progress. Bussey would
point out problems and Philip or Cleveland would, perhaps,
make suggestions. Bussey was not invited to attend the meet-
ings held earlier in the day with the general contractor’s rep-
resentative.
On his visits to the site, Philip inspected the work in
progress but testified that he did not concern himself with the
particulars of the job. He took no measurements but de-
pended on Bussey and his expertise to get the system in
place without his intervention. Bussey was responsible for
the proper installation of not only the job that he was person-
ally working on, but all of Respondent’s jobs at Morgan-
town. He was also the person who had to report to Philip
any problems which might come to his attention at Morgan-
town.
In addition to the monthly and Tuesday meetings de-
scribed above, Bussey would meet with Philip, Claude, and
827HERITAGE FIRE PROTECTION
8 Capital Transit Co., 114 NLRB 617, 618–619 (1955).
9 Bussey testified that on one occasion he asked Philip to fire two
employees who were not doing their jobs right. They had been
working in the shop. Philip refused to follow Bussey’s suggestion,
stating that he did not think Bussey’s reasons for firing them were
good enough.
Jeff White each Friday to discuss the various jobs and the
progress made that week on each. Bussey would report what
piping had been installed, what changes had been required by
the superintendent and what piping still needed to be in-
stalled. Based on Bussey’s Friday report and those of
leadmen on other jobs, Philip and the other above-named
members of management would hold regular Monday morn-
ing meetings with the employees at which Philip would
make assignments of personnel to particular jobs. All field
workers and shop workers attended these meetings and it was
then that they learned where they would be working the
forthcoming week. If any employee expected to be absent for
any reason during the week, he was expected to advise Philip
at this time.
Although Bussey testified that he considered himself a
boss on the Morgantown jobsite and although he was re-
ferred to by management and other employees as supervisor
or even as superintendent, this, of course, does not conclu-
sively determine his supervisory status under the Act.8 On an
average workday, Bussey would be busy, personally install-
ing sprinkler piping. At different times during the day, how-
ever, he would go to where the other men were working to
see if they had any problems installing the piping. If he dis-
covered that there were such problems as pipes or hangers
missing, or the wrong size, he would so advise Philip or
Claude by telephone. This type of problem and problems
brought to his attention by the general contractor would ne-
cessitate his calling the office, sometimes once or twice per
day, sometimes only twice in a week, where higher manage-
ment would decide what to do and issue instructions to
Bussey.
As to Bussey’s actual authority over other employees on
the job, Bussey testified that he had never hired nor fired9
employees while at Morgantown, nor interviewed prospective
employees. He did sit in on one occasion when Philip inter-
viewed an applicant and asked a few questions himself.
However, Philip made the decision on whether to hire the
applicant.
Similarly, Bussey credibly testified that he could not trans-
fer employees from one jobsite to another, for example from
Morgantown to Lancaster. He could, however, reassign em-
ployees from one area to another, at the same jobsite, if addi-
tional help were needed or if, for one reason or another, they
could not continue working where they were. Sometimes,
under these circumstances, Bussey would first contact Philip
before making the reassignment. At other times, in the case
of smaller jobs, he would not bother to do so. These re-
assignments did not result in any change in the type of work
being performed or in the employee’s wage rate.
Bussey credibly testified that he did not schedule em-
ployes’ vacations, that Philip did this. Similarly, he testified
that, at times, employees would ask him for time off. On
these occasions, Bussey would ask Philip if it was all right
or would tell the employee making the request to talk to
Philip. Bussey stated that he had no authority to independ-
ently grant time off to employees. On one occasion, an em-
ployee got sick on the job. He simply left the job without
seeking the permission of Bussey or anyone else.
Philip determined the number of hours the employees were
to work each day on the Morgantown job. Usually, he de-
manded that the employees work a 12-hour day or as long
a day as they could. Bussey had no authority to change these
requirements, but circumstances sometimes required
variances. All the crew members worked the same number
of hours per day and days per week including Bussey. All,
including Bussey, received overtime for hours worked over
12 plus traveltime. Bussey was paid an hourly rate of $8.50
and he and the other employees kept their own timecards.
Employee Jim Adams who worked on the Morgantown job
installing sprinklers, at the same time as Bussey, received
$8.75 per hour.
At some point the employees determined that they would
prefer to work a 4-day week with additional hours per day.
Although Bussey had heard of their preference, the employ-
ees did not address their request to him. Rather, they went
directly to Philip who granted their request and advised
Bussey later, without consultation with him beforehand.
According to the testimony of other employees working at
Morgantown, Bussey would tell them in what areas they
were to work. If they, through inexperience, were unable to
perform an assigned task, they would ask one of the more
experienced personnel, chiefly Bussey, to help with their
problems. When installer helper Warren St. Clair was as-
signed by Philip to work at Morgantown, Philip told him to
do whatever Bussey told him to do.
Philip emphasized, in his testimony, that there was a dif-
ference between jobs where there was a single foreman and
the Morgantown site, the largest in terms of employees,
where there were several jobs. In most jobs there was just
the leadman and his helper whereas at Morgantown, Bussey
was over several leadmen and their helpers. In the former
type of situation, according to Philip, the leadman works
with his tools most of the time whereas in the latter situation,
it was Bussey’s primary function to oversee the job, and
solve problems for the foremen and their helpers.
Although, as noted above, Philip testified that the Morgan-
town job differed from other jobs because it was larger, he
also testified that initially only J.C. Penney’s was being
worked on, the other jobs not yet ready. Therefore, only
Bussey and two or three other employees were required.
Thus, during the early period, the Morgantown job was no
different than any other job and Bussey’s duties were similar
to that of other foremen who were expected to work with
their tools.
By the time the mall itself was ready to be worked on,
Penney’s was 75 percent roughed in, and it was a simple
matter to transfer some of Respondent’s employees there
from Penney’s. Bussey and his helper moved into the mall
at this point leaving the others to finish Penney’s. Neverthe-
less, the time came that Bussey felt more men were needed
and asked for them at the regular Monday morning meetings.
The general contractor’s representative also suggested addi-
tional men. Philip initially ignored these requests in order to
save out-of-town expenses since he was obtaining good re-
ports on progress at the jobsite from the general contractor.
Most of the time four employees including Bussey were suf-
ficient to get the job done, although occasionally there were
as many as six during the initial stages. Philip hoped to get
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 John Cuneo of Oklahoma, 238 NLRB 1438, 1439 (1978), enfd.
106 LRRM 3077 (10th Cir. 1980).
11 Shelton denied that he was initially involved in organizing and
testified that Bussey was responsible for contacting the Union. It is
clear from Shelton’s testimony that he was not in favor of union rep-
resentation.
more production out of the men already there rather than hire
additional employees.
The pipe used at the Morgantown jobsite was cut and
threaded at the Cannonsburg shop. Occasionally, there were
mistakes made and pipe, too short for its purpose, was sent
out. This, according to Philip, was not unusual. It would hap-
pen, from time to time, on many jobs and no one was dis-
ciplined for these occasional mistakes. Responsible employ-
ees were, however, reprimanded and corrected.
Philip testified that Bussey, as superintendent on the job,
had the additional duties of completing daily reports and
turning them over to the general contractor’s representative.
He also attended weekly safety meetings and was responsible
for cleanup. Bussey also had to police the job to make cer-
tain that the employees all wore hard hats and followed
OSHA regulations. He recorded the time the men worked
and the lines put in. He listed material needed for the job
to progress. All of these duties were listed in a memo ad-
dressed to Bussey and signed by Hutchison at the beginning
of the project.
Philip testified that in his opinion, as the job progressed,
Bussey was spending too much time working with his tools,
hanging pipe and not devoting enough time to supervision.
Although this allegedly was Philip’s opinion, he never spoke
to Bussey about it. He explained that it was Bussey’s choice
to make, as to how he would spend his workday.
Before being assigned to run the Morgantown job, Bussey
was usually in charge of jobs where he had one or two help-
ers where the three, as a crew, would install a sprinkler sys-
tem. Both Bussey and the helpers would work with hand
tools, all doing the same thing, for the same amount of time.
Although Bussey was at Morgantown performing the tasks
described above for most of the first 6 months of 1990, Re-
spondent, on two occasions during this period, transferred
him to a jobsite in New Philadelphia. While working at New
Philadelphia, Bussey worked as a rank-and-file installer.
Dave Haymond was in charge at New Philadelphia and bore
responsibilities for that job similar to those borne by Bussey
when he was employed at Morgantown. Bussey’s wage rate
was not affected by his transfers between Morgantown and
New Philadelphia.
From the above description of Bussey’s duties and author-
ity, I conclude that he was both a leadman or working fore-
man and a conduit between Respondent’s management and
the general contractor. He was not, however, a supervisor
within the meaning of the Act. Bussey should not be denied
his right to representation or the protection of the Act based
on the minimal authority which he possessed to routinely as-
sign tasks to fellow employees who, on the next job, might
very well have the same minimal authority over him.10
Union Activity at Morgantown
In mid-April, at the Morgantown jobsite, according to
Bussey, three employees, Tice Shelton,11 Warren St. Clair,
and Greg Sigler began to discuss the possibility of obtaining
union representation. They expressed the hope of obtaining
better pay for fewer hours through the Union. When they
discussed these matters before Bussey, he told them that all
they had to do to get union representation was to vote.
On Friday, April 20, when Bussey returned to the shop in
Cannonsburg, he told Duncan Smith that the men were inter-
ested in talking to Union Representative Singleton about rep-
resentation. Smith declared that he too would be interested
in talking to Singleton.
On Monday, April 23, Bussey contacted Singleton and a
meeting was scheduled for April 24. Bussey advised Terry
Osborne, James Adams, and other employees about the meet-
ing. Four employees attended the meeting including Bussey
and Adams, both of whom signed union cards. The record
does not indicate whether the other employees present at this
meeting signed cards but at some time or other Shelton also
signed a card. Smith later contacted Singleton himself, met
with him, and signed a union card on April 28.
Between the signing of the cards in late April and the fil-
ing of the petition on May 8, the employees at Morgantown
discussed and debated the merits, or lack thereof, of union-
ization. Bussey and Adams would argue in favor of unioniza-
tion while Shelton would argue against it. Shelton advised
them that he could understand their position and wanted
them to understand his. He argued that he had only been
working for the Company 4 months, that when he got the
job, he and Philip had sat down and discussed how much he
would be making. He said that Philip had not done him any
wrong and he did not want to stab him in the back. Shelton
testified that although he had attended union meetings and
had signed a card, he had done so just to ‘‘go along with
the guys,’’ that he was worried about his job because he had
a family to support. He stated that he was caught in a situa-
tion where he really did not know what to do.
On May 8, the Union filed a petition to represent Re-
spondent’s field employees. Respondent received a copy of
the petition on May 9, the following day. This was the first
inkling that Respondent had that its employees had been en-
gaged in union activity.
On the evening of May 9, Philip was introduced to a labor
attorney who represents employers. The labor attorney gave
Philip a quick education as to precisely what could and could
not be done by an employer during a union organizing cam-
paign. He learned that evening, he testified, that he, Claude
and Kevin Cleveland were ‘‘to keep their mouths shut; were
not to say anything about union, nonunion or anything at that
point to the employees who they had working.’’ Respondent
retained this counsel throughout the instant proceedings and
attempted to follow his directions meticulously. Doing so,
however, made it extremely difficult for management to de-
termine which employees were responsible for the union or-
ganizational activity.
On Thursday, May 10, Philip called Bussey, apparently for
the purpose of determining who was involved in the union
organizing campaign. The content of the discussion between
Philip and Bussey is not all that well covered by record testi-
mony but as a result thereof, Bussey told the Morgantown
employees, ‘‘When you all go in, you got to meet with Phil.
He’s mad. He’s going to tear you all’s ass.’’
That evening was, of course, the end of the 4-day work-
week and the day after Respondent received notice that a pe-
tition had been filed. It was also the day after management
829HERITAGE FIRE PROTECTION
12 The complaint contains no allegation of violation in connection
with this matter. I therefore find none.
13 Philip denied that he asked this question. This denial is not
credited.
14 Gilberton Coal Co., 291 NLRB 344 (1988), enfd. 888 F.2d
1381 (3d Cir. 1989).
had been warned about mentioning the Union to the employ-
ees.
When the employees arrived at the shop, Philip said that
he wanted to speak to them individually. The employees,
however, insisted on sticking together, and all entered Phil-
ip’s office together. Present facing Philip were Bussey,
Adams, St. Clair, Shelton, and Sigler. St. Clair testified that
Philip acted very upset with him, Sigler, and Shelton. When
St. Clair asked Philip what the problem was, Philip would
not immediately reply. But then Philip stated that Bussey had
informed him that Sigler, Shelton, and St. Clair had been sit-
ting up there, at the Morgantown project, arguing about a
raise. Philip, following advice of counsel, did not mention
the Union, but it was perfectly clear to everyone that Philip
was talking about the employees’ union activity. St. Clair de-
nied the accusation and, in turn, accused Bussey of lying. He
stated that Bussey had a problem, that he had something
against the three named employees. St. Clair, in his testi-
mony, freely described Bussey’s alleged problem. He stated
that Bussey was trying to get him fired because he, St. Clair,
was against the Union and, he, Bussey had, in fact, told him
so. St. Clair, however, specifically denied that he told Philip,
that evening, during the meeting, about Bussey trying to get
him fired because he was not in favor of the Union.
Shelton’s testimony was similar to that of St. Clair. Ac-
cording to Shelton, sometime after he and Bussey had their
disagreement over the Union, Bussey tried to get him, St.
Clair and Sigler fired. He testified that Bussey called Philip
and told him that these three employees were sitting up at
the jobsite hollering for a raise when, in fact, this was not
so. Bussey insinuated, according to Shelton, that it was
Shelton and St. Clair that had gotten him to go to the Union
when, in fact, it was Bussey’s own idea to contact the Union.
Despite his belief that Bussey was trying to get him and St.
Clair fired, Shelton denied that he reported any of the em-
ployees’ union activities to Philip.
I do not credit St. Clair’s and Shelton’s denial that they
reported the employees’ union activity to Philip. Rather, I
believe that when Philip called Bussey, during working hours
on Thursday, May 10, he told Bussey that a petition had
been filed and probably asked him what he knew about it.
Bussey most likely replied that Shelton, St. Clair, and Sigler
had been sitting up at the jobsite hollering for a raise, thus
intimating that they had been responsible for contacting the
Union. Philip then summoned the three to the meeting not,
of course, to reprimand them for talking about a raise, but
to find out who was involved in the activity that gave rise
to the filing of the petition.
After hearing, at the meeting, that Bussey was blaming
them for initiating the union activity and believing that he
was trying to get them fired, one or both of them must have
informed Philip that it was Bussey, not they, who had initi-
ated the union organizing effort. I am equally certain that
they also identified to Philip which of Respondent’s employ-
ees were prounion and which were antiunion. The events
which followed during the next few days and weeks would
support this conclusion because Respondent took specific ac-
tion against each of the cardsigners.
The meeting of Thursday evening, May 10, was not lim-
ited to the oblique references to the union activity of the em-
ployees at Morgantown. In addition, Philip leveled his first
criticism toward Bussey and the other Morgantown employ-
ees. He told those present that they had not been producing
and that Bussey had not been doing his job as a supervisor.
He stated that he was not satisfied with the employees’ pro-
duction on the Elder Beerman job or in the mall. Bussey de-
fended himself and the other employees by pointing out that
Philip had been at the jobsite the week before and was aware
that the problems involved were not the fault of his employ-
ees, but were the direct result of problems created by other
subcontractors. Though Philip admitted knowing this to be
the case, he still was not satisfied and announced that hence-
forth, the men would have to file daily reports indicating
what they had done, where they had worked and how many
hours they had spent on each job. He ordered Bussey to call
in every evening with this information. Subsequently, Bussey
and the other employees complied with Philip’s order, begin-
ning May 14, the next workday. Each employee filled out his
own report and continued to do so through May 17 when the
procedure was abandoned.
I conclude that the sudden requirement that employees file
daily reports was in direct response to and in retaliation for
their union activity.12 This conclusion is based on the fact
that the requirement was instituted the day after Respondent
received notification of its employees’ union activity through
receipt of the petition and the fact that Respondent had pre-
viously given no indication that it was dissatisfied with the
work of the Morgantown employees though Philip had been
visiting the site continuously since January. I find that the
purpose of the requirement was both to harass the employees
suspected of having engaged in union activity and to estab-
lish a record, perhaps on which to take later action against
them.
On Friday, May 11, Frank White called Respondent’s of-
fice and spoke with Philip. White had previously filed a job
application and had called several times seeking employment.
Philip exclaimed ‘‘Good timing. Can you come in today?’’
White replied that he could, and did, in fact, report to Phil-
ip’s office.
During his job interview, Philip asked White how he felt
about the Union.13 White replied that he did not know be-
cause he did not know anything about unions. Philip then
commented, ‘‘As far as I’m concerned, this company will not
be union.’’ Philip advised White that he would be hired and
should report to work the following day. He told White that
he would work in the shop until he, Philip, felt he was quali-
fied to move to the field. White reported the following day
as instructed and worked in the shop.
In the context of the circumstances of this case, and in
light of Philip’s comment, ‘‘This company will not be
union,’’ I find that Philip’s interrogation of White was in
violation of the Act.14
Like all other inexperienced new hires before him, Frank
White was initially put to work in the shop where he worked
for 2 weeks cutting and threading pipe and gaining experi-
ence under the guidance of Jeff White. Frank was thereafter
transferred to the field where he continued to work until Oc-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Though other employees had been transferred in the past from
the shop to the field, no such documentation ever before accom-
panied the transfer.
tober when he was laid off. He was on the payroll and in
the unit on the date of the election.
Considering the timing of his hire, immediately after the
petition was filed, his interrogation by Philip with the accom-
panying comment, it is quite possible to make the case that
Frank White was hired to pad the unit. The complaint con-
tains no such allegation, however, and I find no violation.
In 1989, Respondent had employed an employee named
Jeff White. White had an on-the-job accident that year and
was receiving workmen’s compensation from June until De-
cember. In December, Philip offered White the opportunity
to return to work in the office performing light duty. White’s
doctor approved his return to work on that basis and he per-
formed light duty in the shop beginning in January. Eventu-
ally, he was put in charge of fabrication in the shop.
On May 17 Philip sent or handed White a letter stating
that, effective 7 a.m., May 21, he was instructed to return
to his position in the field at Morgantown.15 Since the unit
description contained in the petition included ‘‘all employees
engaged in field installation’’ and excluded ‘‘all full-time
shop employees,’’ White’s transfer from the shop to the field
was a transfer into the unit from outside.
While Jeff White was employed in the shops on light duty,
he did very little manual labor. Rather, he spent most of the
time handing down orders, taking measurements from blue-
prints and placing them on fab sheets. As of the date of the
election he was working in Morgantown, on light duty. Ac-
cording to Philip, he was ‘‘just kind of helping out’’ who-
ever needed it, trimming valves, testing systems ‘‘this type
of thing.’’ Eventually, White recovered and since then has
been performing full-time work in the field.
It is clear that Jeff White was never involved in any union
activity. On the contrary, he had very special reasons to be
loyal to management. When healthy, before his accident, he
was placed in charge of any job on which he was foreman,
and that meant over any other foreman, including Bussey and
Haymond. When he was injured, he was befriended by Philip
by letting him work on light duty in the shop. Since White
was unable to perform the duties demanded of a full-time in-
staller, at the time of his transfer back into the field at Mor-
gantown, on May 21, it is clear that he was not sent there
to increase production. I conclude that White was transferred
to Morgantown to pad the vote in Respondent’s favor. How-
ever, since the complaint does not contain any allegation
concerning White’s transfer, I find no violation. The discus-
sion herein concerning my findings as to Respondent’s mo-
tives in transferring White is to indicate the extent to which
Respondent was willing to go to keep the Union out and to
support motivational findings with regard to other allegations
which are, in fact, included in the complaint.
On May 17, Philip also sent a letter to Jim Adams assign-
ing him to the fabrication shop as a ‘‘permanent shop em-
ployee’’ effective 7 a.m., Monday, May 21. This transfer was
the only instance of its kind in the history of the company
wherein a field installation employee was transferred to the
shop as a permanent shop employee. The transfer resulted in
the removal from the unit of a cardsigning union activist.
Adams received the transfer letter along with his check on
May 17. He had received no advance warning of the forth-
coming transfer and no explanation as to the reason for the
transfer. When Adams asked Philip why he was being trans-
ferred, Philip replied that he had his reasons. Tice Shelton,
who was present during this conversation, asked Philip why
he, Shelton, was not being transferred to the shop since he
wanted to be in the shop. Philip repeated that he had his rea-
sons. I conclude that Shelton was kept in the field rather than
Adams because Philip was aware that he was not in favor
of the Union.
Warren St. Clair credibly testified that when he first began
working for Respondent in January, he was put in the shop.
Philip explained to him, at the time, that he was being put
in the shop to train him for the field. In the shop he would
gain experience cutting and threading pipe before being sent
into the field. After 5 weeks of such training, St. Clair was
sent to Morgantown.
In light of Respondent’s history of training new and inex-
perienced employees in the shop and sending them later into
the field, and never having sent an experienced field em-
ployee to work permanently in the shop, I conclude that the
aberrant transfer of Adams from the field to the shop was
a transparent attempt, on the part of Respondent, to under-
mine the Union’s strength within the unit. This conclusion,
of course, presupposes company knowledge of Adams’ union
activity. There being no allegation in the complaint concern-
ing this matter, I find no violation but include discussion of
it to indicate the existence of an antiunion pattern of conduct.
On Friday, May 18, Philip informed Bussey that Claude
and Jeff White were going to come onto the Morgantown job
to work. Bussey greeted this news with enthusiasm and sug-
gested that Claude or White be made boss over the job be-
cause of their experience. Philip, however, rejected this idea
stating that he wanted ‘‘Things to stay the same,’’ that he
wanted Bussey ‘‘to be the boss.’’
Although Claude testified that he and White had been sent
to Morgantown to determine the reasons why the J.C. Penney
job was behind, I conclude that they were sent there to fa-
miliarize themselves with the job before removing Bussey
because of his involvement with the Union. Indeed, if Claude
were interested in why the job was behind, he would have
told Bussey so and would have asked him reasons for the
delay. He did neither. Instead, he permitted Bussey to con-
tinue operating just as he had, without interference. More-
over, the J.C. Penny job, though 2 weeks late, was virtually
completed, and all the others were on time. When White ar-
rived on the Morgantown job on Sunday, May 20, he noted
to Bussey his concern about coming on the job, in the mid-
dle of it, taking over without knowing what was going on.
Bussey had not been told in advance that White was going
to take over the Morgantown job. On the contrary, as noted,
Philip had told him the previous Friday that he wanted
Bussey to continue to be the boss. White, apparently had un-
intentionally flashed Respondent’s hand.
Despite contradictory reports from Philip and Jeff White,
Bussey remained in charge of the project through Wednes-
day, May 23. That very day White reiterated to Bussey that
Bussey would continue to be the boss and that White was
only there to offer advice. At 5 p.m. that evening, however,
Claude informed Bussey that Philip wanted him to come into
the office the following morning, that he had another job in
831HERITAGE FIRE PROTECTION
16 Philip testified that Adams was transferred to the shop at this
time because he wanted to work a 4-day week rather than a 5-day
week at Morgantown. However, several employees working at Mor-
gantown, at this time, were working a 4-day week, including Tice
Shelton who credibly testified that he did so with Philip’s blessing.
I therefore reject Philip’s explanation as to why he transferred
Adams as patently incredible. Similarly rejected is Philip’s expla-
nation that Adams was transferred to the shop to replace an em-
ployee who had just quit. Historically, new employees were trained
in the shop and sent out to the field after gaining experience. In
Adams’ case, Respondent transferred the more experienced Adams
to the shop, then shortly afterwards replaced him in the field with
newly hired employees with no experience—clearly an aberration.
17 Also known as Stephen Conn.
18 Wilks completed a second section of his application on June 4
when he actually reported for work.
19 Philip’s version of this conversation was entirely different from
that of Wilks. Where the two versions differ, I credit that of Wilks.
20 The record contains contradictory testimony concerning what
was said at this meeting. Where Philip’s and Claude’s testimony
conflicts with Bussey’s, that of the latter is credited.
Lancaster that he wanted to assign to him. No other expla-
nation for the transfer was offered.
On Thursday, May 24, Bussey reported to the shop as or-
dered. Philip explained to him that he had a job in Lancaster
and a couple of others that he wanted him to take care of.
Once again, he said nothing to disparage Bussey’s work at
Morgantown. Bussey loaded the truck and went to the Lan-
caster job where he worked with one employee or another
installing sprinkler piping.
I find that Respondent removed Bussey from the Morgan-
town job to separate him from the other union activists and
in preparation for his ultimate termination. I find that this
was part of an overall general plan to undermine the Union’s
strength in preparation for the forthcoming election.
Meanwhile, Adams reported to work at the shop on May
21 as instructed. This was the first time he had worked in
the shop. Unlike most newly hired employees who initially
worked in the shop to obtain experience before being sent
out into the field, Adams was sent directly into the field
when he was first hired because of his experience. Adams
continued to work in the shop after May 21 with less experi-
enced employees for the rest of his tenure with Respondent.
Newly hired employees, with very little experience, such as
Frank White were sent out to work in the field, White to
Morgantown where he worked for 3 months, while Adams
remained in the shop. No explanation was given to Adams
as to why he was subjected to this treatment.16 The imme-
diate effect, however, was to remove one union adherent
from the unit.
As of May 29 Bussey was still employed at Lancaster. As
of June 1 he was employed at a smaller mall along with
Frank White. At this time, according to Philip, it was
planned that he, Claude and Kevin Cleveland would meet on
the weekend to determine what was going to be done with
Bussey. They did so and, according to Philip, after evalu-
ating the circumstances, decided to confront Bussey and ask
him about the ‘‘problems’’ on the Morgantown job.
According to Philip, about June 1, he decided that Re-
spondent could use some more help at Morgantown. Not ex-
perienced installers, but someone to carry a ladder or go for
parts. He asked employee Todd Kincaid if he knew of any-
one who might be interested in a job. That day and the next,
at Philip’s behest, Kincaid called Andy Conn17 and Mike
Wilks. He first called Conn and told him that Respondent
needed some people to help out during the summer and that
if he and Wilks wanted jobs, they could have them. Conn
then contacted Wilks who expressed interest. Kincaid called
Wilks, himself, Saturday morning, June 2, and invited him
to meet with Philip for an interview.
Later that day, Conn and Wilks drove to the Cannonsburg
shop and spoke with Philip about the job. Philip told them
what they would be doing and how much they would be
paid. Both filled out applications for employment.18 During
the interview, Philip advised the two applicants that a union
representation election was coming up in about 30 days, that
they would be voting in it and that it would be to their ad-
vantage to vote no. He explained that if the Union was voted
in, Conn and Wilks would be replaced by better qualified
people that were out of work but already in a union.19 Philip
was aware when he made this statement that neither Conn
nor Wilks had ever had experience in the fire protection in-
dustry. Therefore, his threat to replace them was clearly vio-
lative of Section 8(a)(1) of the Act. He hired both applicants
that day. Both Conn and Wilks were paid for the hour spent
being interviewed and filling out the applications.
Philip testified that he hired Wilks and Conn to work any-
where they were needed, not just at Morgantown, although
consideration was given to them working there. He admitted,
however, that he hired them on June 2 and paid them for that
date because June 3 was the eligibility cutoff date and he
wanted them to be able to vote in the union election.
As of June 2, Philip intended to send Wilks and Conn to
work at Morgantown the following Monday, June 4. He later
changed his plan, however, and had Wilks drive a truck to
Morgantown and to New Philadelphia. They did no installa-
tion work that day. Wilks likewise drove on June 5 and 6.
Later, during the week of June 4, however, both Conn and
Wilks were assigned as helpers on the Morgantown job.
They carried ladders and helped the installers lift pipe. They
threaded pipe and cut hangers; the kind of work previously
done by new employees in the shop. They worked on the lift,
holding, twisting, and putting couplings on pipes. They did
not, however, install sprinkler systems on their own. About
August, Wilks was transferred to the shop.
During the week of June 4, along with Wilks and Conn,
employees Smith, Shelton, St. Clair, Kincaid, Frank White,
Jeff White, and Sigler were working at Morgantown. This
was the largest complement of employees ever assigned to
that jobsite; more than had worked there when Bussey had
been in charge. In fact, the complement doubled.
About 7:30 a.m. June 4, Philip, Claude, and Cleveland
called Bussey into the office in Cannonsburg.20 Claude told
Mark that he was going to have to let him go. There had
been no warning prior to that time that discharge was being
contemplated. Bussey asked why he was being fired. Claude
said that on the Morgantown job the piping was all wrong
in J.C. Penney’s, the goosenecks were turned the wrong way
in Elder Beerman’s and production was low. Claude said that
Bussey should have been supervising the men more to see
that they were putting the pipe in right.
Bussey defended himself. He said that there were 12
studmen, carpenters hanging the studs, working very fast
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 As noted supra, Philip testified that he had been told by his at-
torney on May 9, that he should not say anything to his employees
about the Union. 22 Darbar Indian Restaurant, 288 NLRB 545 (1988).
while he was working alone trying to keep pace. Claude said
that Bussey should have checked each and every line against
the blueprint. Bussey repeated that he did not have time.
When Claude said that Bussey should have asked for more
men, Bussey truthfully stated that he had asked Philip for ad-
ditional help at their Monday meetings. When Philip ac-
knowledged this as fact, Claude then stated that Bussey
should have requested additional supervisory help, either
from himself or from Jeff White. He said that it was
Bussey’s responsibility to see that the job went in right.
Bussey, thus put on the defensive, said that he had told Phil-
ip back in January that he had never worked a job that big,
with that many men, and Philip had assured him that he
could do the job. Claude acknowledged, in agreement, that
he thought that Bussey was capable of doing the job.
Bussey suggested that he be put on a smaller job since he
had always done very well on such jobs and Respondent had
never had any problems with him. Although both Philip and
Claude agreed that they had had no problems with Bussey,
Claude rejected Bussey’s suggestion stating. ‘‘No, I’ve got
my mind made up.’’
Bussey then suggested that they give him 2 more weeks
to prove himself. Claude again refused, repeating, ‘‘No, I
have my mind made up.’’ Bussey then asked the three bosses
to talk it over again among themselves, give him another
chance and ‘‘maybe put him on smaller jobs.’’ This they
agreed to do, then retired into another office to discuss the
matter further.
After 30 to 45 minutes the three again met with Bussey.
Claude reiterated, ‘‘Mark, I still have my mind made up.’’
He then added, ‘‘But if there’s some reason—if you could
explain what was wrong, what the problem. . . .’’ In my
opinion, Claude was clearly probing for certain information
without being direct with his questions; he and the others
wanted to know about Bussey’s involvement with the Union.
They wanted an admission and an apology but were afraid
to use the dreaded ‘‘Ull word.’’21 The Union was never
mentioned, as such.
This approach went over Bussey’s head. He did not under-
stand what Claude was driving at. He again explained that
he was trying to get water on the J.C. Penney job and why
he had to leave piping off on the Elder Beerman job.
Bussey’s explanation did not, of course, answer the ques-
tion that management was posing. Claude tried again. He re-
peated that the bosses had their minds made up, that they
were going to have to let him go. But then he added that
if Bussey could explain to them why the men’s attitude had
changed in the last two weeks . . . they could maybe make
a change in their decision. Claude was, of course, referring
to the union activity which had occurred over the previous
several weeks and the dichotomy which had arisen and di-
vided the employees into pro and antiunion factions.
It is not certain from the record whether Bussey still did
not know what Claude was asking about, as he testified, or
whether he was just being coy. In any event, he did not men-
tion the Union or the attitude of the employees. He once
again described the mechanical problems on the job and the
reasons for them. He also pointed out, with regard to the
charge of low production, that whenever Philip or Kevin
Cleveland came on the job, around the first of each month,
they were always satisfied with production and said that
Bussey and the men were doing well. Philip agreed, but
Claude noted that they never noticed that the pipe had been
installed wrong because they never checked the installation
against the blueprints.
The meeting ended about 10 a.m. with Bussey discharged,
the only employee ever discharged by Respondent, with
management inviting Bussey to come back, in a week or
two, to ‘‘explain the problem.’’ Philip and Claude assured
Bussey that if he wanted to think about it at home and come
back and explain the situation, whatever it may be, that they
would listen, and that his explanation would be the basis for
whether he would be allowed to work and for whether they
would reconsider their decision.
On June 6, 2 days after his discharge, Bussey visited Phil-
ip and Kevin Cleveland in Philip’s office. They again dis-
cussed the J.C. Penney and Elder Beerman jobs. Bussey then
asked Philip if the Union had anything to do with his dis-
charge but Philip denied that this was the case. When Bussey
asked for his job back, Philip said that he would first have
to talk to Claude, then would get back to Bussey. Bussey
was not contacted thereafter.
It was also on June 6 or earlier that the parties had agreed
on a Stipulated Election Agreement which the Union exe-
cuted on that date. It provided for a unit consisting of all
field installation employees employed during the payroll pe-
riod ending June 3. If Bussey were reemployed, he would
have been eligible to vote. He was not reemployed.
Philip was examined, during the hearing, as to why Re-
spondent did not keep Bussey on as a rank-and-file employee
since he was admittedly an excellent mechanic, and the only
thing that was allegedly wrong with his work was his failure
to adequately provide assistance to the other workmen on the
job. Philip replied that it simply would not work out to have
Bussey work for someone who used to work for him.
I reject Philip’s explanation as patently absurd because
historically Respondent, since its inception, had followed just
such a practice. Haymond, Bussey, and the other foremen
worked for each other and changed roles with one another
everytime they transferred.
I find that Mark Bussey was the leading union activist
among Respondent’s employees, that Respondent learned
about his union activities and fired him because of them and
for no other reason. Respondent thus violated Section 8(a)(3)
and (1) of the Act.22
At the regular Monday morning meeting on June 11, Dun-
can Smith, a union cardsigner was advised that he was being
transferred from the Morgantown job to the shop, effective
immediately. Philip testified that the reason Smith was trans-
ferred was that he had knocked an 18-inch hole in a wall on
the Morgantown job to put a 4-inch pipe through. According
to Philip, on discovery, he immediately told Claude about it
because he was disturbed. He did not, however, discuss the
matter with Smith at the time.
At the June 11 meeting, Philip made the statement that he
did not want employees knocking big holes through the
walls, directing his remark to Smith. Claude joined in by
telling Smith that he had a bad attitude, that when he would
833HERITAGE FIRE PROTECTION
direct Smith to work in a certain area, Smith wanted to work
in another. He stated that he did not want Smith working on
any jobs that he was running. This was the first indication
that Smith had received of Claude’s displeasure with his
work. Smith, apparently angry, challenged Philip and Claude
to fire him.
After the meeting, according to Philip, he, Claude, and
Cleveland discussed the matter and since they needed help
in the shop, decided to transfer Smith to the shop. Of course,
the immediate effect of Smith’s transfer was to remove an-
other cardsigner from the unit. I find that this was the intent
of management.
Smith worked in the shop for the next 3 weeks along with
Adams and Gary Hensley, the welder. Smith and Adams,
during this period, threaded pipe, pulled fittings on, cut hang-
ers, and loaded trucks. Smith credibly testified that these
were the same duties he had performed when he first was
hired, before he was sent out to the field.
Meanwhile, before the election, while Smith was working
in the shop, Frank White was working at Morgantown with
Claude. White credibly testified that on one occasion he
heard Claude laugh and state that Duncan Smith ‘‘had a bad
‘‘attitude and was letting this union ordeal go to his head.’’
I find the statement further evidence that wherever Respond-
ent’s management used the term ‘‘attitude’’ or ‘‘bad atti-
tude’’ they clearly meant that any employee so described,
had been engaged in union activity.
During the week prior to the union representation election
scheduled for June 29, the Union and the Respondent both
held meetings. At one meeting on June 26, Haymond brought
up the subject of Bussey’s firing. Philip, however, directed
his employees to get off this subject because that was not
what the meeting was about.
The following evening, June 27, Haymond had a conversa-
tion with Claude about Bussey’s firing and the fact that no-
body from management would talk about it. He asked Claude
why Bussey had been fired. Claude said that firing Bussey
was one of the hardest things he had ever done. He said that
he thought highly of Bussey and of his ability as a sprinkler
installer and had felt that Bussey had a future with Respond-
ent.
Haymond had just come from a union meeting and was
carrying some union documents in his hand. Claude appar-
ently noticed these and commented on some past incidents
which had occurred when Respondent had been union. He
described past difficulties with Jerry Singleton and accused
him of being vindictive. He said that Singeton would try
anything and say anything to get the Union in.
Haymond brought the conversation back to Bussey’s firing
and the reasons for it. Claude then talked about keeping
graphs on the Morgantown job, the low production, his per-
sonally going to the jobsite and his sending Adams back to
the shop. Haymond, confused, asked Claude what this had to
do with Mark. Claude then stated that Mark’s attitude had
changed, that he could not understand what had gotten into
him. Haymond, still confused, asked for more specifics.
Claude then described two very minor incidents, which he
also later described in his testimony, during which Bussey
replied to two of Claude’s comments or questions in a snap-
py or curt manner. Haymond, in disbelief, remarked, ‘‘That
was the only reason [for the firing]?’’ Claude rejoined,
‘‘Well, when he came back on Monday, we talked to him
and we gave him an opportunity to explain and he couldn’t
explain it.’’ Then Claude added that the one thing that really
hurt him, and he just didn’t expect it, was that he never once
heard anything about union activity until the day he got the
letter from the Labor Board.
Haymond testified that he understood Claude to be ex-
pressing his disappointment in the employees at Morgan-
town, that none of them reported the union activity to him.
I agree with Haymond, and inasmuch as Claude’s expression
of disappointment appeared in the general context of a dis-
cussion concerning the reasons for Bussey’s firing, I find that
Claude was expressing disappointment in Bussey in par-
ticular. Although, Haymond did not, apparently, receive the
same impression, I find that Claude was indirectly
telegraphing his reason for firing Bussey. For Haymond testi-
fied that after a full hour of conversation with Claude, he
still did not understand why Bussey had been fired. How-
ever, though Haymond was not specifically told why Bussey
had been fired, he certainly came to the proper conclusion
through implication, for he testified:
I knew exactly what he [Claude] was talking about . . .
Well, when he talks about attitude change and his talk-
ing about the last couple of weeks . . . prior to him
coming up there and all the union activities that was
going on behind his back and then he found out about
it. I mean, it don’t take no Einstein to figure out where
he’s coming from when he was upset and he didn’t
know anything about it.
The complaint alleges Bussey’s discharge to be
discriminatorily motivated. Respondent argues that it was for
cause. I find this conversation, between Claude and
Haymond, supportive of my earlier finding that Bussey was
fired in violation of the Act.
As noted, the union representation election was conducted
June 29. Smith acted as the Union’s observer but did not cast
a ballot since he was ineligible because he was still em-
ployed in the shop at the time. Jeff White was the observer
for the Respondent. Several ballots were challenged. These
will be discussed infra. Adams, on vacation in Mexico, the
day of the election did not show up to vote. He testified that
he might have flown back but did not do so because he was
not on the voter’s list and might be challenged because he
was employed in the shop, outside the unit.
On Monday, July 2, Smith reported for work at the shop.
He was told by Kevin Cleveland, on arrival that he was laid
off, that there was not enough work to do in the shop and
that he should go on down to the unemployment office and
take a little vacation. Cleveland told him that he would get
in touch with him when he needed him. Gary Hensley, the
welder, was laid off at the same time.
Smith had been employed by Respondent since April 1989
and had never before been laid off. He had received no
warning before July 2 that a layoff was contemplated. For
the 6 or 8 months prior to his transfer to the shop, Smith
had been working on a number of jobs where he was in
charge of the job with one helper assigned to him. Both he
and his helper were employed installing sprinkler systems
during this period. Respondent clearly had been satisfied
with Smith’s work, otherwise he would not have been placed
in charge and given a helper. Additionally, Smith received a
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Darbar Indian Restaurant, supra.
24 Ibid.
25 Respondent produced two witnesses, Tice Shelton and Warren
St. Clair, who testified in support of its position that Bussey did not
adequately supervise them. Both witnesses testified that Bussey had
tried to get them fired and that they were afraid of losing their jobs.
I found neither of these witnesses credible. Both were more inter-
ested in getting even with Bussey and in currying favor with Re-
spondent than in telling the truth. Greg Sigler, on the other hand,
was called as a rebuttal witness on behalf of General Counsel. He
testified credibly in support of Bussey and his leadership qualities,
effectively contradicting Claude’s testimony on the subject. At the
time of the hearing, Sigler was no longer employed by Respondent.
wage increase of 50 cents per hour about 3 months prior to
his layoff, bringing him up to $7.50 per hour. He worked at
Morgantown for Bussey and remained there for a short pe-
riod after Bussey left. He also worked for David Haymond
at New Philadelphia. Smith described Bussey’s job at Mor-
gantown and Haymond’s job at New Philadelphia as essen-
tially the same.
The complaint alleges Smith’s layoff to be discriminatorily
motivated. Respondent argues that Smith was laid off be-
cause of a lack of work in the shop. In light of my earlier
findings that Smith was a known union activist, that the Re-
spondent demonstrated its antiunion animus in numerous
ways, including discriminatorily transferring Smith from the
field to the shop in order to prevent him from casting a vote
for the Union, that Respondent continued to employ rel-
atively inexperienced personnel while laying off Smith, I find
Smith’s layoff to be discriminatorily motivated and a viola-
tion of Section 8(a)(1) and (3) of the Act.23
On July 3, the Union filed objections to the conduct of the
election and a charge based on Bussey’s termination.
On Monday July 9, Smith visited the shop to determine
his situation. Philip told him that he was still laid off. The
same day, Adams returned from vacation. Upon reporting to
the shop, he was told by Philip that he was laid off, that Re-
spondent might be able to use him once in a while, but not
regularly. At the hearing, Philip was asked why he did not,
at this time, use the experienced Adams in the field. His ex-
planation was that he did not have a place to put him in the
field.
I reject Respondent’s explanation as to why Adams was
not returned to the field. Philip had instructed his employees
not to take their vacations in late July or August because
they would be needed at Morgantown during this period. In-
deed, Adams had rescheduled his vacation in accordance
with Philip’s directions because Philip had explained that
during this period the Morgantown Mall would be nearing
completion, retail stores would be starting, there would be a
lot of rework to be done and he did not want anybody sched-
uled for vacation at this time. Moreover, on July 9, when Re-
spondent needed all the experienced men it could get at the
Morgantown site, Philip chose to lay off Adams and keep in-
experienced employees such as Conn and Wilks, whom he
had just recently hired. I find Respondent’s action with re-
gard to the layoff of Adams incongruous and Philip’s expla-
nation incredible. In light of the surrounding circumstances,
it is clear that Adams was laid off because of his support for
the Union, in violation of Section 8(a)(3) and (1) of the
Act.24
A couple of days after his layoff, Adams contacted Philip
to find out whether he was going to be working anymore or
should draw unemployment compensation. Philip replied that
Adams should apply for unemployment compensation be-
cause there was no work ‘‘with this union thing.’’ He added
that possibly it would be 10 weeks before Respondent
‘‘would be back on track.’’ Philip did not expand on what
he meant by this statement but did explain that because of
the uncertainty of the outcome of the union election, he had
not bid on work.
On July 19, Philip called Adams to offer him some work
available in the shop but he was not home. The following
day, July 20, Cleveland called Adams, but again he was not
home. Cleveland left a message with Adams’ wife to have
him return the call. The call was not returned. The following
Monday, July 23, the same thing occurred.
On the morning of July 23, the Union filed its charge
against Respondent in Case 9–CA–27707 alleging that it vio-
lated Section 8(a)(3) and (1) by, inter alia, transferring Dun-
can Smith from the field to the shop, laying off Duncan
Smith, transferring Adams from the field to the shop and lay-
ing off Adams, all in retaliation for their union activities.
This charge was served on Respondent the following day,
July 24.
On Friday, July 26, between 9 and 10 p.m. Cleveland suc-
ceeded in contacting Adams. He asked him if he was avail-
able for work. Adams replied that he had ‘‘kind of com-
mitted’’ himself to working at a plant that was being shut
down in his area. He then asked Cleveland how much work
he had. Cleveland replied that he did not know exactly, then
suggested that it might be for a few days, a week, or longer.
He added that he had some stuff that needed to be done im-
mediately. Adams then declined Cleveland’s offer, citing his
commitment to the job at which he was currently employed.
No further contact occurred thereafter between Respondent
and Adams.
In addition to contacting Adams, Respondent, in late July,
also called back other employees who had been on layoff,
including Smith whom Philip placed in the field. Two and
a half days after Smith returned to work, however, he injured
his shoulder while on the job, and went on workmen’s com-
pensation for about 3 months. This was toward the end of
July. Philip testified that even if Smith had not been injured,
he would probably have been laid off eventually as were sev-
eral other employees.
As completion of the Morgantown job approached, in Sep-
tember, Respondent transferred Wilks and probably Conn
back to the shop because there was, again, some work to be
done there. They worked there until October when, once
again, the shop ran out of work. The record contains no ex-
planation as to why Respondent chose to transfer Wilks and
Conn to the shop, at this time, rather than recall the more
experienced Smith and Adams except that Philip testified
that, if he brought Smith back, or presumably Adams, he
would have had to lay off somebody else, and this was not
company policy.
The Bussey Discharge—Respondent’s Defense
Respondent takes the position that Bussey was discharged
because of his failure to properly supervise the employees25
835HERITAGE FIRE PROTECTION
26 B.L.K. Steel, 245 NLRB 1347, 1353 (1979); Ra–Rich Mfg.
Corp., 120 NLRB 1444, 1447 (1958).
which resulted in mistakes in the installation of the sprinkler
systems and in a failure to meet construction time targets.
I do not find Respondent’s defense worthy of credit. Since
the Morgantown job was begun, Philip and Cleveland made
frequent periodic visits to the site and thoroughly inspected
the work as it progressed. At no time prior to Respondent’s
receipt of the petition did Philip or Cleveland criticize any
of the work being done under Bussey’s guidance. Though it
was clear to everyone that the J.C. Penney job had fallen be-
hind, everyone knew that it was because more men were
needed on the job and Philip was reluctant to provide them.
Respondent’s attempt to blame Bussey’s discharge on
nonexistant or inconsequential errors in the installation work
is clearly a transparent, pretextual attempt to divert attention
from the real reason for his termination, namely his engaging
in protected concerted activities on behalf of the Union.
The Challenged Ballots and the Objection
The Petitioner challenged the ballots of Stephen Conn, Mi-
chael Wilks, and Michael Kincaid on the ground that they
were temporary employees, and the ballot of Jeff White on
the basis that he is a supervisor within the meaning of Sec-
tion 2(11) of the Act. The board agent conducting the elec-
tion challenged the ballots of Terry Osborne and Mark
Bussey on the ground that their names did not appear on the
list of eligible voters.
Stephen Conn and Michael Wilks: The Stipulated Election
Agreement provided a payroll period ending date of June 3,
1990. The record indicates that Conn and Wilks were inter-
viewed and hired on June 2 for the purpose of padding the
eligibility list in favor of the Employer. Though they were
paid for the time they spent filling out the application forms
and being interviewed, they did not actually begin doing unit
work until June 4. In order to be eligible to vote, an indi-
vidual must be employed and working on the established eli-
gibility date.26 Accordingly, I recommended that the chal-
lenges to Conn’s and Wilk’s ballots be sustained.
Michael Kincaid: Michael Kincaid has been employed by
the Company since its inception in February 1989. As a stu-
dent he works 10–20 hours per week, regular part-time but
works full-time during the summer. He is employed 52
weeks a year. Kincaid’s work schedule is sometimes taylored
to fit the requirements of his school schedule, especially
around examination time. He works both in the shop and in
the field, as needed. At the time of the election he was work-
ing at Morgantown installing pipe in J.C. Penney’s. I find
Kincaid to be a regular part-time employee, not a temporary
employee. He should therefore be included in the unit. I rec-
ommend that the challenge to his ballot be overruled.
Jeff White: Jeff White, prior to his on-the-job injury in
1989, was a highly regarded skilled mechanic who was em-
ployed as a leadman on field projects. As such, he was put
in charge of whatever project on which he worked. If other
leadmen were also working on the job, White would still be
in charge, even over Bussey or Haymond. Nevertheless, his
actual duties were not dissimilar from those performed by
Bussey.
Though I have found that White’s transfer to Morgantown,
at the time it took place, was for the purpose of padding the
eligibility list in favor of the Respondent, his transfer to the
field was permanent. Though, at the time of his transfer to
Morgantown, White was initially put on light duty, he was
taken off light duty before the day of the election and was
performing rank-and-file unit work on June 29. Con-
sequently, I recommend that the challenge to his ballot be
overruled.
Terry Osborne: Osborne was hired in September 1989 to
do inspections and perform maintenance work for Respond-
ent’s customers. He was not immediately given any title, but
when the Company subsequently ordered calling cards, he
was given the title of service manager but no managerial re-
sponsibilities. Thus, Osborne would be sent out to look over
an existing fire protection system and talk with a potential
customer concerning a contract for periodic inspections but
was not permitted to offer a price or an estimate. Rather, he
would have to return first to the shop and tell Philip what
was involved, after which Philip would decide on the price.
The purpose of the title was purely to impress potential cus-
tomers.
Osborne did not schedule his own visits to potential in-
spection customers nor independently obtain assistance from
other employees on these trips. These matters were cleared
through management. Whether he could schedule an inspec-
tion trip or obtain assistance depended on whether there was
installation work to be performed elsewhere. The latter had
priority.
During the initial period of his employment, between Sep-
tember and December 1989 Osborne had a desk in the same
office as Philip, Claude, Cleveland, and the secretary. He
spent, on the average, 10 hours per week at this desk though
there was no phone on it. When Osborne was not at his desk
or traveling to inspection sites, he was expected to drift from
one installation job to another, filling in where there was a
shortage of personnel. He spent about 50 percent of his time
installing sprinkler systems, sometimes by himself, some-
times with other employees, always using the tools of the
trade.
During the winter of 1989–1990, the amount of installation
work increased to the point that the service contracts could
not be fulfilled. Osborne was needed more and more for
sprinkler system installation so that in January 1990 the char-
acter of his work changed. He spent 2 months at the New
Philadelphia jobsite, working for Haymond who was the
crew chief on that job at the time.
Between March and October, months would go by without
Osborne using his desk. It was eventually taken away and
given to a newly hired secretary. During this period, he did
between 5 and 10 inspections which took about a half hour
each or about 1 week’s work altogether including traveltime.
Meanwhile, he was sent to Morgantown about June 20 where
he worked on the J.C. Penney and Sears jobs and, for a time,
was made leadman on the Elder Beerman job. He was doing
installation work at Morgantown throughout June and July
rather than inspections, the same work performed by the
other rank–and–file employees in the unit, side by side with
them.
From the above, I conclude that as of the eligibility date,
Osborne was employed as a rank–and–file unit employee.
Accordingly, I shall recommend that the challenge to his bal-
lot be overruled.
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 See Sterling Sugars, 261 NLRB 472 (1982).
28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Mark Bussey: I have found that Bussey was not a super-
visor but a rank–and–file unit employee who was discharged
in violation of Section 8(a)(1) and (3) of the Act. Accord-
ingly, I also find that the objection to the election based on
this unfair labor practice is meritorious and recommend that
the challenge to Bussey’s ballot be overruled.
Challenges
Having found that Michael Kincaid, Jeff White, Terry
Osborne, and Mark Bussey are eligible to vote, inasmuch as
their votes are sufficient in number to affect the results of
the election, I recommend that their votes be counted.
The Objection
Having found that the objection is coextensive with the
unfair labor practice alleged concerning the discharge of
Mark Bussey, and having found the objection and unfair
labor practice meritorious, I shall make recommendations,
infra, in accordance with these findings.
The Unfair Labor Practices
Having found that allegations 5(a), (b), and (c) of the com-
plaint and the 8(a)(1) amendments thereto are meritorious, I
shall make recommendations, infra, in accordance therewith.
CONCLUSIONS OF LAW
1. The Respondent, Heritage Fire Protection, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By forcibly interrogating an employee regarding his
union sympathies and by threatening employees with loss of
employment if they voted for the Union, Respondent violated
Section 8(a)(1) of the Act.
4. By discharging employee Mark Bussey and laying off
employees Duncan Smith and James Adams because they en-
gaged in union activities, Respondent violated Section 8(a)(3)
and (1) of the Act.
5. The unfair labor practices enumerated above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Union’s Objection 6, which is coextensive with the
unfair labor practice alleged in paragraph 5(a) of the com-
plaint, is meritorious and must be sustained.
7. The challenges to the ballots of Michael Kincaid, Jeff
White, Terry Osborne, and Mark Bussey are invalid and
must be overruled.
8. The challenges to the ballots of Stephen Conn and Mi-
chael Wilks are valid and must be sustained.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take appropriate and affirmative action de-
signed to effectuate the policies of the Act. In particular, as
I have found that employee Bussey was discharged and em-
ployees Smith and Adams were laid off because they en-
gaged in union activities, in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent be or-
dered to offer these employees immediate and full reinstate-
ment to their former jobs, displacing, if necessary, any re-
placement, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against
them with backpay computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest thereon
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). See also Isis Plumbing
Co., 138 NLRB 716 (1962). I shall also recommend that Re-
spondent be required to post an appropriate notice.
It shall be further ordered that the Respondent be ordered
to remove from its records any references to the discharge
of Mark Bussey and to provide him with written notice of
such removal and of the fact that his discharge will not be
used as a basis for further personnel actions against him.27
Having found the challenges to the ballots of Stephen
Conn and Michael Wilks valid, it is recommended that the
challenges be sustained and their ballots not be counted.
Having found the challenges to the ballots of Michael
Kincaid, Jeff White, Terry Osborne, and Mark Bussey in-
valid, it is recommended that the challenges be overruled and
that their ballots be counted. It is further recommended that
should the counting of the valid challenged ballots result in
a majority of valid ballots cast being cast against representa-
tion, since I have found merit to the Union’s objection 6, it
is recommended that the election in Case 9–RC–15699 be set
aside and a new election directed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
ORDER
The Respondent, Heritage Fire Protection, Inc.,
Cannonsburg, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from discouraging membership in, ac-
tivities on behalf of, or sympathies towards United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local
669, AFL–CIO or any other labor organization by:
(a) Forcibly interrogating employees regarding their union
sympathies.
(b) Threatening employees with loss of employment if
they vote for the Union.
(c) Discharging or laying off employees because they en-
gage in union activities.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
837HERITAGE FIRE PROTECTION
29 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Mark Bussey, Duncan Smith, and James Adams
whole for any loss of pay suffered as a result of the discrimi-
nation against them in the manner set forth in the remedy
section of this decision.
(b) Offer to Mark Bussey, Duncan Smith, and James
Adams immediate and full reinstatement to their former jobs,
displacing, if necessary, any replacement, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(c) Remove from its records any reference to the discharge
of Mark Bussey and provide him with written notice of such
removal and of the fact that his discharge will not be used
as a basis for further personnel actions against him.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payments records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amounts on backpay due under the terms of this rec-
ommended Order.
(e) Post at its plant at Cannonsburg, Kentucky, copies of
the attached notice marked ‘‘Appendix.’’29 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT forcibly interrogate employees regarding
their union sympathies.
WE WILL NOT threaten employees with loss of employ-
ment if they vote for the Union.
WE WILL NOT discharge or lay off employees because they
engage in union activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the rights guaranteed you by Section 7 of
the Act.
WE WILL make Mark Bussey, Duncan Smith, and James
Adams whole for any loss of pay suffered as a result of our
discrimination against them.
WE WILL offer to Mark Bussey, Duncan Smith, and James
Adams immediate and full reinstatement to their former jobs,
displacing, if necessary, any replacement, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
WE WILL remove from our records any reference to the
discharge of Mark Bussey and provide him with written no-
tice of such removal and of the fact that his discharge will
not be used as a basis for further personnel actions against
him.
HERITAGE FIRE PROTECTION, INC.