Home Insulation Service

National Labor Relations Board - Board Decisions

Mar 26, 1981

255 N.L.R.B. 311 (N.L.R.B. 1981)

HOME INSULATION SERVICE 311
Home Insulation Service, a Division of Sunstate
Wholesalers and International Association of
Heat and Frost Insulators and Asbestos Work-
ers, AFL-CIO. Case 12-CA-8653
March 26, 1981
DECISION AND ORDER
On September 26, 1980, Administrative Law
Judge John M. Dyer issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
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.
In his Decision, the Administrative Law Judge
concluded that Respondent had not unlawfully re-
fused to offer reinstatement to its striking employ-
ees, as the relevant reinstatement offers, "insofar as
Respondent was aware," were conditional on the
reinstatement of two employees who had been pre-
viously lawfully discharged. In the absence of any
unconditional offer by or on behalf of these eco-
nomic strikers to return to work, he found that Re-
spondent had not violated Section 8(a)(3) by its re-
fusal to reinstate them. Based on the facts and for
the reasons stated below, we reverse these conclu-
sions of the Administrative Law Judge and find
that Respondent has violated Section 8(a)(3) and
(1) of the Act, as alleged.
Respondent sells and installs building insulation,
and operates eight branch offices located in Flor-
ida, including one in Tampa, the situs of the pres-
ent dispute. A majority of the Tampa production
and maintenance employees participated in a union
organizing drive and signed union authorization
cards in May 1979,2 prior to the events herein. On
Friday, May 25, employee Palmer, who had par-
ticipated in the organizing campaign, had a dispute
with Tampa Branch Manager McMullan, as a
result of which he was lawfully discharged. In re-
sponse, the eight employees who were present
struck in protest of Palmer's discharge. Employee
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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Pducts, 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 Unless otherwise indicated, all dates are 1979.
255 NLRB No. 50
Veenstra, who arrived for work late that day, was
also lawfully terminated. 3
Apparently, except for employees who had al-
ready been dispatched, no insulation installation
was performed by the Tampa employees that day.
Respondent attempted to contact customers sched-
uled for that day to let them know of the strike,
and to assure them that Respondent would try to
complete the scheduled work over the weekend.
On the following day, Saturday, Respondent re-
sumed operations, using its salesmen and employees
from other branches. McMullan testified that he
was at the Tampa branch office on Saturday from
7:30 a.m. to 8 p.m., and that Frank Copare, Re-
spondent's vice president, was there from 8 a.m. to
7:30 p.m. The record indicates that a large number
of applicants to replace the strikers were inter-
viewed that day, either by McMullan or by
Copare. The record further shows that Copare was
at work in the office the following morning, and
that McMullan was there from 11:15 a.m. to 5 p.m.
The record does not indicate what they did while
there. However, the Administrative Law Judge
discredited testimony that applicants were inter-
viewed that day. On Monday, May 28, the bulk of
the replacements reported for work. The remaining
replacements reported later in the week.
According to unrefuted testimony, the striking
employees met with William Langford, business
manager for the Charging Party Union, on Friday,
May 25, and he instructed them to be ready to
return to work on Monday, whether Respondent
took Palmer back or not. On the next morning,
Saturday, Langford telephoned Respondent about
9 o'clock and again about 11 o'clock, identified
himself as the Union's business manager, and un-
successfully requested to speak to Jim English, Re-
spondent's president. On the third attempt, at I
p.m., he was informed that English was not accept-
ing any calls. In response, Langford requested to
leave a message for English, testifying:
I told her to tell Mr. English that the men
would be there Monday morning dressed and
ready to go to work prior to the regular work
time.
Later that evening, Langford also sent Respond-
ent a mailgram and a telegram which included
statements that the employees would be ready to
return to work at the normal time on the following
Monday. 4 The telegram was not received until late
3 The Regional Director specifically refused to include the discharges
of Palmer and Veenstra in the present proceeding, as he concluded that
they were lawfully discharged. This decision has not been appealed
4The entire mailgram and telegram both stated:
Continued
HOME INSULATION SERVICE
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monday morning, and the mailgram was received
on Tuesday.
According to the credited testimony, striking
employee Montemurro also called Branch Manager
McMullan around 9 p.m. on Saturday and told him
that all 14 of the striking employees would be at
work on Monday. 5 When McMullan inquired
whether "all 14" included Veenstra and Palmer,
Montemurro replied, "All 14."
On Monday, prior to 7 a.m., the striking employ-
ees as well as dischargees Palmer and Veenstra
presented themselves ready for work at the normal
starting time. They were not allowed to return.
It is well established that a union may make a
collective offer on behalf of all striking employes
for their return to work. 6 Accordingly, the Union's
business manager, Langford, had the authority to
make such an offer to return, particularly in view
of his prior discussion with the striking employees
on Friday, May 25. On Saturday, May 26, he re-
peatedly attempted to contact Respondent's presi-
dent, English, but was finally informed that Eng-
lish was not taking any calls. Uncontradicted evi-
dence reveals, however, that he left a message for
English indicating that the men would be ready for
work at the start of the next regular workday. This
message was telephoned to Respondent's work-
place and received by an apparent agent of Re-
spondent for the purpose of transmitting such mes-
sage to English. Despite repeated telephone calls,
English had not made himself accessible to Lang-
ford, and he did not thereafter contact him. 7 On its
face, the message clearly reveals that an uncondi-
tional offer to return was being made.
However, the Administrative Law Judge im-
properly interpreted this message in light of subse-
quent communications with Respondent, including
the mailgram and telegram received after the strik-
ers had been denied reinstatement. In any event,
these subsequent communications are insufficient to
A majority of production and maintenance employees at the Tampa
Branch excluding office clerical employees and supervisors have au-
thorized and designated Heat and Frost Local 67 of the Asbestos
Workers International Union as their collective bargaining repre-
sentative. Branch Manager Charles McMullen [sic] was so informed
and recognition of the Union was demanded on Friday May 25.
Such demand is herewith renewed and you are advised it is a con-
tinuing demand and a meeting for commencement of negotiation on
a collective bargaining agreement is requested. Please let me know
the time date and place for the commencement negotiation. Addi-
tionally reinstatements and reimbursements for their lost earnings is
demanded for the employees locked out on May 25. All employees
will report for work and be ready to work at the normal time of 7
AM on Monday May 28.
Respondent's regular work force on May 25 included about 14 pro-
duction and maintenance employees at Tampa. As noted above, only
eight of these employees participated in the strike which commenced that
day.
6 Colonial Haven Nursing Home. Inc., 218 NLRB 1007, 1011 (1975).
7 In his testimony, English did not deny that he was present at his
office on May 26.
indicate that the Union never intended to make an
unconditional offer of return to work, or that its
initial unconditional offer later became conditional.
On Friday, Langford instructed the strikers to
return, even if Palmer's discharge was not retract-
ed. Montemurro's statement to McMullan indicat-
ing that dischargees Veenstra and Palmer would
also try to return to work on Monday is fully con-
sistent with Langford's earlier unconditional offer
for the men's return. 8 Respondent received no
other communication from the strikers or the
Union prior to their attempted return to work, and
Respondent's subsequent receipt of the telegram
and the mailgram did not serve as a retraction of
the earlier offers. At most, the various communica-
tions rendered ambiguous the offers to return.
However, at no time did Respondent attempt to
reach Langford or Montemurro to obtain clarifica-
tion of the offers sufficient to determine whether
they were in fact conditional. Where any such am-
biguity remains unclarified due to Respondent's de-
cision to ignore the offers and not seek clarifica-
tion, Respondent may not be heard to complain if
such uncertainty is resolved against its interest.
Haddon House Food Products, Inc. and Flavor De-
light, Inc., 242 NLRB 1057, fn. 6 (1979).
In view of the above, we find that the General
Counsel has established a prima facie showing that
the striking employees were entitled to reinstate-
ment at the time Langford offered their return at
or about 1 p.m. on Saturday, May 26.
In such a situation, Respondent's refusal to rein-
state them may be found to be lawful only if it has
presented evidence showing that there were no po-
sitions available for them to fill at the time the
offer to return was made.9 The Supreme Court in
N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S.
375, 378-379 (1967), has succinctly summarized the
controlling principles:
8 Where reinstatement offers are made regarding "all striking employ-
ees," "the members," and similar collective designations or lists of em-
ployees, this Board does not infer that the reinstatement of one is condi-
tional on the reinstatement of all. See Pepsi-Cola Bottling Company of
Mason City, lowa, 251 NLRB 187 (1980); Richard C Knight Insurance
Agency, Inc., 243 NLRB 604 (1979); Woodlawn Hospital, 233 NLRB 782
(1977): Coca Cola Bottling Works, Inc., 186 NLRB 1050 (1970), modified
on other grounds 466 F.2d 380 (D.C. Cir. 1972). While Montemurro spe-
cifically stated that Palmer and Veenstra would try to return to work, he
did not state that the others would not return without these two. But
compare Times Herald Printing Company, 221 NLRB 225 (1975), where
the offer to return was expressly conditioned on reinstatement of all strik-
ers.
9 We reject the General Counsel's argument that striker replacement
applicants who have accepted offers of employment, but who have not
yet reported for work, are not considered striker replacements. Such ap-
plicants obtain the status of striker replacement upon their acceptance of
offers of permanent employment. See H. d F Binch Co. Plant of the
Native Laces and Textile Division of Indian Head, Inc.. 188 NLRB 720
(1971), enfd. 456 F.2d 357 (2d Cir. 1972); Superior National Bank & Trust
Company, 246 NLRB 721 (1979).
HOME INSULATION SERVICE 313
If, after conclusion of the strike, the employer
refuses to reinstate striking employees, the
effect is to discourage employees from exercis-
ing their rights to organize and to strike guar-
anteed by Sections 7 and 13 of the Act. Under
Section 8(a)(1) and (3) it is an unfair labor
practice to interfere with the exercise of these
rights. Accordingly, unless the employer who
refuses to reinstate strikers can show that his
action was due to "legitimate and substantial
business justifications," he is guilty of an unfair
labor practice. N.L.R.B. v. Great Dane Trail-
ers, 388 U.S. 26, 34 (1967). The burden of
proving justification is on the employer ...
In some situations, "legitimate and substan-
tial business justifications" for refusing to rein-
state employees who engaged in an economic
strike have been recognized. One is when the
jobs claimed by the strikers are occupied by
workers hired as permanent replacements
during the strike in order to continue oper-
ations.
Under this standard, the evidence is insufficient to
show that any permanent replacements were hired
prior to Langford's I p.m. telephone call. The
credited evidence indicates only that the replace-
ments were interviewed and apparently hired
sometime Saturday, May 26. Although Respondent
may have hired some replacements prior to the
Langford telephone call, it has not presented af-
firmative evidence that any such employees were
hired prior to that time. Therefore, Respondent has
failed to meet its burden to rebut the General
Counsel's prima facie case. See Los Angeles Chemi-
cal Company, 204 NLRB 245, 250 (1973). Accord-
ingly, we find that Respondent violated Section
8(a)(3) and (1) of the Act when it refused to rein-
state the returning strikers when they arrived for
work on Monday, May 28, and that the strike was
thereupon converted to an unfair labor practice
strike.
The General Counsel further alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by its refusal to bargain with the Union after the
Union's demand for recognition contained in the
telegram was received on Monday, May 28.1° This
demand for recognition was for a unit limited to
the Tampa employees. For the reasons stated
below, we agree with the Administrative Law
Judge's conclusion that the 8(a)(5) and (1) allega-
tions be dismissed.
As previously stated, Respondent operates its
business from eight locations in Florida, including
Tampa, Clearwater, Lakeland, Dade City, Sara-
' See fn. 4, above.
sota, Ocala, Orlando, and Tallahassee. They range
in distance from approximately 20 to 250 miles
from Tampa, with the majority being within 75
miles of Tampa. While the parties agree that a pro-
duction and maintenance unit is appropriate, the
General Counsel asserts that the scope of such an
appropriate unit need contain only those employees
at Tampa, for whom recognition has been demand-
ed, while Respondent claims that the appropriate
unit must include all such employees at all of its
branches.
Excluding Palmer and Veenstra, the record indi-
cates that 10 employees signed authorization cards
prior to the strike on May 25. The record also indi-
cates that the normal work complement at Tampa
consisted of approximately 15 production and
maintenance employees," and that approximately
20 other such employees worked out of the remain-
ing branches. Respondent's operation requires that
its branch employees transport insulation equip-
ment and materials from the branches to various
construction sites and existing buildings where the
actual insulation work is to be performed. Re-
spondent's president, English, testified that none of
the branches operates within precise geographical
boundaries, but that an attempt is made to have the
branch nearest the work perform the job. This
effort to coordinate the work assignments among
the branches is performed by a branch dispatcher
located in Tampa. Due to work overloads, equip-
ment breakdowns, and other causes, employees
from the nearest branch are not always able to per-
form the work alone, and approximately 25 percent
of the jobs require employees from more than one
branch to perform the work. The equipment for
the installation of urethane foam insulation, and the
mechanic who operates this equipment, is stationed
only at the Tampa branch. This employee works
outside the Tampa area approximately 2 days each
week. In addition, employees are transferred on a
weekly basis to other branches for training pur-
poses.
English further testified that employees at the
various branches are paid in an identical manner,
and that they receive identical benefits. He stated
that bookkeeping, including payroll, advertising,
purchasing, and warehouse functions are central-
ized in Tampa, and that spare trucks and equip-
ment are located there. Insulation materials are also
located at the various branches, and Respondent
frequently transfers such goods from one branch to
another. Finally, the trucks which operate out of
I I The record shows that, as a result of Respondnt's hiring of replace-
ments, more than 15 employees were employed at Tampa on the date of
the demand for recognition.
HOME INSULATON SERVICE
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various branches return to Tampa for periodic
maintenance.
In view of the evidence set forth above, and the
absence of evidence that the Tampa employees
retain a separate community of interest notwith-
standing such evidence to the contrary, we find
that a unit restricted to just the Tampa production
and maintenance employees is inappropriate for the
purposes of collective bargaining. Inasmuch as the
Union's request for recognition was limited to a
unit only of Tampa employees, we find that the re-
quest for recognition was for an inappropriate unit.
The record further shows the Union has neither
sought to represent, nor obtained majority status
among employees in the larger unit. Accordingly,
we adopt the Administrative Law Judge's dismissal
of the 8(a)(5) and (1) allegations.
THE REMEDY
In view of our finding that Respondent unlawful-
ly refused to reinstate the strikers subsequent to the
offer to return made on their behalf, we shall order
Respondent to offer those employees immediate
and full reinstatement to the positions which they
held at the time they went on strike or, if those po-
sitions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges. We shall further order
that Respondent make whole these employees for
any loss of earnings suffered by reason of the dis-
crimination suffered by them, by paying to each a
sum of money equal to that which each would
have earned as wages from the date each was enti-
tled to reinstatement to the date on which Re-
spondent offers or has offered reinstatement as
aforesaid,' 2 less net earnings, if any, during such
period. Backpay and interest thereon shall be com-
puted in the manner set forth in F. W Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).'3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Home Insulation Service, a Division of Sunstate
12 Whether Respondent has already made sufficient offers of reinstate-
ment to these strikers is a matter to be left for the compliance stage of
this proceeding. However, we note that, in determining whether Re-
spondent has made a proper offer of reinstatement, a discriminatee must
have been granted a reasonable period of time to consider whether to
accept such offer, the length of which depends on the factual circum-
stances of each particular case. See Murray Products, Inc., 228 NLRB 268
(1977), efd. 584 F.2d 934 (9th Cir. 1978); Freehold AMC-Jeep Corpora-
tion, 230 NLRB 903 (1977).
Is See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Member Jenkins would award interest on the backpay due based on the
formula set forth in his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
Wholesalers, Tampa, Florida, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Asking employees about their union senti-
ments and desires.
(b) Threatening its employees that the Company
would never allow a union in the plant.
(c) Discouraging membership in the International
Association of Heat and Frost Insulators and As-
bestos Workers, AFL-CIO, or any other labor or-
ganization, by unlawfully failing or refusing to re-
instate or otherwise discriminating against its em-
ployees because they have engaged in protected
strike or other concerted activity for their mutual
aid or protection or because they have engaged in
union activity.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole the following named employees
who went out on strike on May 25, 1979, in the
manner set forth in the section of this Decision en-
titled "The Remedy":
Larry L. Hardy Leo A. Beard
Jeffrey Scott Davis Lynn Eastburg
Englin Stuart T. Beach
Amiel A. Edward P. Glover
Montemurro John L. Huff
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, 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 Tampa, Florida, plant and its
branch offices copies of the attached notice marked
"Appendix."1 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 12,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
14 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 Labor Relations Board."
HOME INSULATION SERVICE 315
(d) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which the Company, the
Union, and the General Counsel of the National
Labor Relations Board participated and offered
evidence, it has been found that we violated the
National Labor Relations Act, as amended. We
have been ordered to post this notice and to abide
by what we say in this notice.
Section 7 of the Act gives all employees the
following rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through repre-
sentatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT ask employees about their
union sentiments and desires.
WE WILL NOT threaten employees that we
would never allow a union in our Company.
WE WILL NOT discourage membership in In-
ternational Association of Heat and Frost Insu-
lators and Asbestos Workers, AFL-CIO, or
any other labor organization, by unlawfully
failing or refusing to reinstate or otherwise dis-
criminating against employees because they
have engaged in protected strike or other con-
certed activity for their mutual aid or protec-
tion or because they have engaged in union ac-
tivity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the National Labor Relations Act,
as amended.
WE WILL offer immediate and full reinstate-
ment to the following employees who went
out on strike on May 25, 1979, if we have not
already done so, and make them whole for any
loss of pay they may have suffered as a result
of our discrimination against them, plus inter-
est:
Larry L. Hardy
Jeffrey Scott
Englin
Amiel A.
Montemurro
Leo A. Beard
David Lynn Eastburg
Stuart T. Beach
Edward P. Glover
John L. Huff
Our employees are free to become or remain
members of International Association of Heat and
Frost Insulators and Asbestos Workers, AFL-CIO,
or any other labor organization.
HOME INSULATION SERVICE, A DIVI-
SION OF SUNSTATE WHOLESALERS
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: The
charge in this case was filed on May 29, 1979,' by the
International Association of Heat and Frost Insulators
and Asbestos Workers, AFL-CIO, referred to herein as
the Union, against Home Insulation Service, a Division
of Sunstate Wholesalers, referred to herein as Respond-
ent or the Company. The Regional Director issued a
complaint on July 10, which was amended on July 1,
alleging violations of Section 8(aX1), (3), and (5) of the
National Labor Relations Act, as amended, herein called
the Act.
Respondent's answer admits the commerce and juris-
dictional allegations, the status of the Union, as amended
at the hearing, and the supervisory status of President
English and Branch Manager McMullan but denies the
commission of any unfair labor practices.
The hearing of this case took place before Administra-
tive Law Judge C. Dale Stout in Tampa, Florida, on De-
cember 3-6, 1979. After the death of Administrative
Law Judge Stout, the parties were informed of the alter-
native methods of concluding this case and agreed that
the Chief Administrative Law Judge should appoint an-
other administrative law judge to prepare and issue the
decision on the record made before Administrative Law
Judge Stout. On May 16, 1980, the Chief Administrative
Law Judge notified the parties of my appointment to the
case. The record demonstrates that the parties were
given full opportunity to appear, examine, and cross-ex-
amine witnesses and to argue orally and that Respondent
and the General Counsel filed briefs. I have carefully
considered the transcript and briefs and, based on them, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida corporation engaged in selling
and installing home insulation with its principal office
and place of business in Tampa and with six other
branches in Florida. During the past 12 months, Re-
spondent purchased and received goods and materials di-
' All dates are in 1979 unless otherwise indicated.
HOME INSULATION SERV CE 315~~~~~~~~~~~~~~~~~~~~~~
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rectly from outside Florida which were valued in excess
of $50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
Respondent sells and installs various types of insulation
principally to contractors building homes. A portion of
its business consists of sales to commercial buildings and
to homeowners seeking additional insulation for their
homes.
The Company has been in business for 32 years and
has its headquarters in a separate building in Tampa,
Florida. Adjacent to the headquarters is the Tampa sales
and installation office, headed, since February 1979, by
Branch Manager McMullan. Also on the same property
is a warehouse and a garage. About half of the employ-
ees are in the Tampa branch with the balance in branch
offices in Clearwater, Sarasota, Orlando, Lakeland,
Ocala, and Tallahassee. Respondent installs batts of insu-
lation, blows in loose insulation, and, using special equip-
ment, blows urethane foam into areas desired.
The employees involved in this case are the installers,
helpers, urethane mechanics, warehousemen, and me-
chanics, since the parties agreed that office and clerical
employees and salesmen should not be in a bargaining
unit. The Charging Party would restrict a unit to the
Tampa branch while Respondent asserts that a unit of all
branches would be appropriate.
The employees are assigned jobs in the morning and
drive assigned trucks to their jobs. The employees are
paid on a piece rate basis according to the amount of in-
sulation they install.
During May 1979, some of the employees sought the
assistance of a union and employee Montemurro contact-
ed William Langford, business agent of the Union, and
on May 18 employees Glover, Eastburg, and Monte-
murro met with him. On the next day, Montemurro,
Palmer, Glover, Beach, Eastburg, Veenstra, Huff,
Englin, and Miller attended a meeting at Langford's
home where he explained the benefits of a union. Au-
thorization cards were given to Montemurro, Glover,
and Eastburg on May 22. They distributed cards to other
employees on May 22 and 23 and returned 12 signed
cards to Langford on May 24.
B. Events of May 25 through May 28
On Friday, May 25, Montemurro and other employees
heard McMullan tell Palmer that he was going to pay
someone $5 an hour to insulate an attic. Palmer said he
knew how to do it cheaper, but was not paid enough to
disclose his knowledge to McMullan. McMullan said,
"Well f- you," and Palmer threw his coffee on McMul-
lan. A few minutes later, McMullan asked Palmer for the
keys to his truck and his work tickets.
Montemurro, after calling Langford on the phone and
telling Langford he thought Palmer was being harassed
for union activity, told McMullan that he, Palmer, and
Glover were the union organizing committee and that
the employees had signed union authorization cards.
McMullan said, "All right, I understand" and went to his
office. Shortly afterwards, McMullan came back and said
there was work to do if the employees wanted to do it.
Palmer was called into the office and came back in about
5 minutes and told the other employees that he was
fired.
Two employees, Williams and Wilcher, had reported
to work and had been dispatched to their jobs prior to
this time. Employee Walton was off on Friday and
Monday, and employee Miller was on sick leave at this
time.
The remaining eight employees decided that they
would not work if Palmer could not work. Montemurro
told McMullan of this decision and McMullan asked
them to park their trucks and return their work tickets.
Veenstra arrived late and McMullan asked if he had
signed a card. Veenstra said he had, and McMullan took
him to his office and terminated him. Handy, Monte-
murro, Palmer, Glover, Beard, Englin, Huff, Eastburg,
and Veenstra went to Langford's house.
Langford testified he met with the men on Friday and
said he told them they should be ready to return to work
on Monday whether Respondent took Palmer back or
not.
Langford testified that, after calling Respondent's
office twice on Saturday, May 26, and not reaching Eng-
lish, on the third occasion about I p.m. the person an-
swering said that English was not accepting calls. Lang-
ford told her to take a note and tell English that the em-
ployees will be there ready to work on Monday morn-
ing. (The General Counsel's brief is inaccurate in stating
that Langford said that the employees who struck would
be there Monday morning for work.)
Langford contacted the Union's attorneys and was
with them when a mailgram was phoned in on Saturday
at 7:51 p.m. At 10 p.m., Saturday night, the Union's at-
torney sent the same message in a telegram to Respond-
ent. Respondent received the telegram by phone between
10 and 10:15 a.m. on Monday and received the mailgram
with the mail delivery on Tuesday, May 29, since
Monday was a holiday.
The messages were the same and, after claiming a ma-
jority in a P and M unit at the Tampa branch, demanded
recognition and requested bargaining. It then continued:
Additionally reinstatements and reimbursements
for their lost earnings is demanded for the employ-
ees locked out on May 25. All employees will
report for work and be ready to work at the normal
work time of 7 AM on Monday, May 28.
Montemurro, who apparently was the spokesman for
the employees, said they decided on Friday to return to
work on Monday and that he called McMullan around 9
p.m. on Saturday evening and said that all 14 of them
would be at work on Monday. He stated McMullan
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HOME INSULATION SERVICE 317
asked, "[A]ll fourteen of you?" and, when he said yes,
McMullan said, "See you Monday and no comment."
McMullan's version of this conversation differs only
that in his response he says he asked Montemurro, "All
14 including Eric [Veenstra] and Jim [Palmer]?" and that
Montemurro replied, "All 14."
Respondent, on Friday, May 25, and on Saturday got
word out to customers, friends, and suppliers that it was
struck by its Tampa employees and was immediately
going to replace them with permanent employees.
A large number of applicants was interviewed and
hired on Saturday and, according to McMullan and Eng-
lish, Respondent had a full complement of employees
scheduled to report during the following week. Some
employees did not report but Respondent covered the
work with the help of some of its branch officers and
salesmen.
Respondent claims it hired no one on Sunday, but the
General Counsel produced two witnesses who testified
they were interviewed and offered employment on
Sunday, May 29.
An individual named Andrews testified he was inter-
viewed and hired by McMullan on Sunday and that
McMullan said the striking employees would have a big
surprise on Monday because they would not have their
jobs any more. Andrews testified he was sure this oc-
curred on Sunday and not Saturday because he watched
a pro football game on television. The parties stipulated
that the TV listings for that day had no mention of a pro
football game.
Another individual named Nick Julian testified that he
got time off from his job as a cook in a restaurant on
Sunday and applied for work with Respondent and was
offered a job. Respondent produced a witness with Ju-
lian's timecard from the restaurant which showed that
Julian was at work throughout the period and that either
English or McMullan was at the office on Sunday.
It is not possible to credit either Andrews or Julian on
their Sunday interviews testimony because of the obvi-
ous flaws in their testimony. Respondent's testimony that
there were no interviews and hirings on Sunday, May
27, must be credited. I also dismiss the 8(a)(1) allegation
concerning McMullan based on Andrews' testimony,
finding Andrews not a credible witness.
On Monday, May 28, the striking employees, including
dischargees Palmer and Veenstra, showed up for work at
starting time. They were met at the gate by a security
guard who refused them admission to the premises
except to turn in their equipment and uniforms.
On Saturday, McMullan interviewed Charles Foti.
Foti testified that McMullan told him about the job and
asked how he felt about unions. According to Foti,
McMullan said that as long as English was president and
he was the manager there would be no union in the
plant. McMullan told Foti that, if he wanted a job, to be
there on Monday, and he replied he would let McMullan
know on Sunday if he wanted to take the job. Foti did
not call McMullan on Sunday and said he had a friend
answer the phone on Sunday and tell McMullan he was
not there.
McMullan testified that in interviewing Foti, as he did
all the applicants, he explained that the Company was
hiring because the former employees wanted a union and
had gone on strike. McMullan said he told applicants
that the Company was 32 years old and that basically,
because of the strike, the Company was starting over on
Monday with new help and was going to keep going and
service its customers in order not to lose them. He did
not recall asking Foti about his union sentiments and
denied saying there would never be a union at the Com-
pany. McMullan testified that on Saturday Foti accepted
the job but did not know what was going to happen on
Monday and would call McMullan on Sunday.
On Foti's job application is written "will call by 3:00
PM on Sunday if he wants!"
McMullan did not recall questioning Foti about his
union sentiments but did not deny Foti's specific testimo-
ny that he did so. The message written by McMullan on
Foti's application appears to contradict McMullan's
statement that Foti accepted the job. The message is
more in keeping with Foti's testimony. In these circum-
stances, I credit Foti's testimony that McMullan did
question him about his union sentiments and did either
state or create the impression by his statements that Re-
spondent would not have a union. I find and conclude
that by such statements Respondent violated Section
8(a)(l) of the Act.
C. The Offers To Return To Work
The parties agree that the strike was an economic
strike at its inception since charges concerning the dis-
charges of Palmer and Veenstra were dismissed by the
Regional Office. The General Counsel asserts that the
strike was converted to an unfair labor practice strike
when the Company continued to hire applicants on and
after Sunday, May 27, despite receiving unconditional
offers by the strikers to return to work. It is argued that
Langford's telephone offer through the secretary to Eng-
lish on Saturday and Montemurro's telephonic offer to
McMullan on Saturday night were unconditional offers
which Respondent refused by continuing to hire appli-
cants. The General Counsel alleges that McMullan's
statement about "starting over" 2 indicates an intent to
displace the strikers regardless of whether they applied
for reinstatement.
In his brief, the General Counsel does not rely on the
mailgram and telegram as offers to Respondent since the
testimony demonstrated they were not received until
Monday and Tuesday. However, the wording of the
messages is helpful in understanding what the Union,
Langford, and Montemurro had in mind in their other
communications with Respondent. After making a
demand for recognition and a request for negotiations,
the messages state:
Additionally reinstatements and
for their lost earnings is demanded
ees locked out on May 25. All
report for work on May 25. All
reimbursements
for the employ-
employees will
employees will
2 McMullan denied using his phrase to applicants, slating it was used
at the hearing to depict 55hal 5Aas in his mind about hiring new employ-
HOME INSULATION SERVICE
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318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report for work and be ready to work at the normal
work time of 7 AM on Monday, May 28.
The second sentence cannot be considered in isolation
but must be considered with the preceding one. The
Union was demanding reinstatement and reimbursement
for the employees; consequently, this cannot be consid-
ered as an unconditional offer to return to work.
The telephonic message of Langford is in the vein of
all employees returning. As to the Montemurro-McMul-
lan conversation, I credit the McMullan version that he
specifically asked if the return-to-work offer was to in-
clude Palmer's and Veenstra's returning to work and that
the answer was affirmative in Montemurro's statement,
"All 14." McMullan was credited here because Monte-
murro's testimony of a conversation with Oliver is dis-
credited and because McMullan's version appears more
credible in the circumstances.
Additionally, we have the fact that Palmer and Veen-
stra were in uniform with the group outside the gate on
Monday morning, ready to return to work.
Considering all these circumstances, including the
original reason of the strike, I find and conclude that the
offers to return to work were, insofar as Respondent was
aware, conditional on Palmer's and Veenstra's reinstate-
ment by Respondent. Therefore I do not find that the
economic strike was converted to an unfair labor prac-
tice strike by the offers to return. Additionally, the evi-
dence of Respondent's hirings on Sunday, May 27, was
discredited, and there is no evidence of new hirings on
or after Monday, May 28.
The Union, on June 20, sent a telegram making it clear
that the employees were unconditionally requesting rein-
statement. The hiring of employees who were to report
on a later date is permissible and does not indicate that
these were late hirings.
Therefore, the 8(a)(3) allegations of this case must be
dismissed.
Respondent introduced evidence that offers of rein-
statement were made to the strikers, that some strikers
responded and returned to work, and that some did not.
We do not have any Laidlaw-type questions to answer
and will not endeavor to do so. (The Laidlaw Corpora-
tion, 171 NLRB 1366 (1968).)
D. The Refusal-To-Bargain Question
There is agreement that Respondent received the
Union's telegram on Monday, May 28, and its mailgram
on May 29, which both demanded recognition and re-
quested negotiations. Respondent takes the position that
an overall unit of its branch offices installation employ-
ees is proper and that the Tampa branch is not appropri-
ate for collective bargaining.
Of the 12 card signers, Palmer and Veenstra cannot be
counted. From the remaining 10, Williams returned to
work on Monday, and Walton returned to work on
Tuesday. Miller, who signed a card on May 24, was on
sick leave due to an industrial accident involving a com-
pensation case.
From Respondent's list of employees on the Tampa
payroll starting Monday, May 28, three employees are
from the Sarasota branch and Berry Oliver is the sole
employee from the Lakeland branch. If we exclude them
and individuals such as Algire and Gibbs, concerning
whom the General Counsel had some reservations, there
are still 17 other employees listed on the Tampa payroll
for whom there are no authorization cards.
Adding the 7 strikers to Miller, Walton, and Richards,
we have a total of 10 authorization cards for 27 employ-
ees, since at that point both those on the payroll and the
economic strikers would have a voice in determining
whether there would be a bargaining agent.
Thus, even accepting the Union's requested Tampa
unit, the Union would not have a majority as the situa-
tion existed on Monday, May 28, or Tuesday, May 29.
With the factors of common wages and working con-
ditions, centralized payroll and labor relations authority,
interchange of workers among the branches, etc., it
would appear that an overall unit of installers, helpers,
warehousemen, and mechanics of all the branches would
constitute the appropriate unit.
Adding the 22 individuals in those offices (excluding
Oliver in Lakeland) to the Tampa figures would leave
the Union representing less than a fourth of the employ-
ees.
I find and conclude that under the circumstances the
Union did not represent a majority of Respondent's em-
ployees in an appropriate unit and, accordingly, dismiss
the allegation of an 8(a)(5) violation.
E. The Additional 8(a)(1) Allegations
Montemurro testified that, on May 26, Berry Oliver,
Respondent's sole employee in Lakeland, Florida, tele-
phoned Montemurro at his parents' home and told him
the employees were needed on the job. Oliver reportedly
told Montemurro that English had said there would not
be a union in the Company as long as he was there.
Montemurro said he told Oliver the employees would
return to work Monday.
Oliver denied calling Montemurro or that he told
Montemurro that English had stated there would not be
a union at the Company.
Respondent produced Oliver's telephone bill for the
relevant period which showed no such long-distance
call. Respondent also produced telephone bills for Mon-
temurro's parents' telephone which showed long-distance
calls being placed from that telephone to Oliver's tele-
phone on May 26 and May 31, the first lasting about 35
minutes and the second 3 minutes.
Independent of the question of whether Oliver was a
supervisor or an agent of Respondent, I have concluded
that Montemurro should not be credited. His explicit tes-
timony was contradicted by independent credible evi-
dence, and I will dismiss the 8(a)(1) allegation concern-
ing Oliver.
During the week following the start of the strike, em-
ployee Englin returned a gas can to Respondent and had
a conversation with English. Although stating he did not
recall the specific words, Englin said English asked what
the employees wanted since they had received a raise
and gotten the profit sharing straightened out and added
that "there was no way there would be a union."
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HOME INSULATION SERVICE 319
English denied stating that "there was no way there
would be a union" at Respondent's. He did admit that he
had talked to a number of his customers and specified
three who told him that, if the Company went union,
they would look for another insulation contractor. Based
on those conversations, English says he told Englin that
he thought it would be detrimental to the Company to
have a union.
Since Englin testified that his recollection of the con-
versation was not specific as to English's statements, I
am unable to determine that English made the asserted
statements. What is likely in this circumstance is that
Englin interpreted English's resistance to a union and
perhaps a comment on what the contractors might do to
reach his conclusion as to what English meant.
Under these circumstances, I cannot find that English
made the specific threat and, consequently, must dismiss
that allegation of the complaint.
Employee Russ Miller, who was on sick leave from an
industrial accident, went to Respondent's office on May
30 concerning some Workmen's Compensation papers.
He testified that McMullan asked whether he would
have been on the picket line if he had not been hurt.
Miller said he did not know. McMullan then asked if he
would be with the strikers when he did come back.
Miller said he hoped the strike would be over when he
came back. McMullan then said there was no union there
and there would never be one.
McMullan testified that, after some sparring as to what
each of them thought of the situation there, Miller said
he thought they were going about it all wrong and
should put their trust in God. McMullan was not asked
to specifically deny Miller's testimony and gave only this
version of it. In essence, he does admit asking Miller
what he thought about the situation.
Respondent's brief claims that Miller should not be
credited since in his affidavit to the National Labor Rela-
tions Board he attributed the opening statement to em-
ployee Gibbs. However, the transcript containing that
part of the affidavit shows that McMullan asked Miller
what he was going to do when he was able to come
back and, to Miller's answer that he hoped it was over,
McMullan persisted by asking what he was going to do
if the strike were not over. Rather than shaking Miller's
credibility, the affidavit appears to strengthen it. The af-
fidavit also contains the statement attributed to McMul-
lan that there would not be a union at the plant.
There appears nothing to impinge Miller's credibility,
while I have discredited McMullan previously in regard
to the Foti conversation. The subject of what Miller
would do on his return to the Company apparently was
one of some interest to McMullan, and I credit Miller's
version of this testimony. Accordingly, I conclude and
find that Respondent violated Section 8(a)(l) of the Act
by McMullan's inquiries and threat.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section II
and therein found to constitute unfair labor practices in
violation of Section 8(a)(l) of the Act, occurring in con-
nection with the business operations of Respondent, as
set forth in section I, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices as set forth above, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Asking employees about their union sentiments and
desires.
(b) Threatening its employees that the Company
would never allow a union in its plant.
[Recommended Order omitted from publication.]
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