John Cuneo, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1981

253 N.L.R.B. 1025 (N.L.R.B. 1981)

JOHN CUNEO. INC.
John Cuneo, Inc. and Road Sprinkler Fitters Local
No. 669. Cases 10-CA-13130, 10-CA-13280,
10-CA-13357, and 10-CA-13417
January 7, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 24, 1980, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The Charging
Party filed cross-exceptions and a brief in support
thereof, and Respondent filed a brief in opposition
to the Charging Party's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge as modified herein.
We agree with the Administrative Law Judge's
finding that Respondent committed various viola-
tions of Section 8(a)(3) and (1) of the Act, and that
Respondent's unfair labor practices warrant the is-
suance of a bargaining order. However, we do not
rely on the Administrative Law Judge's rationale
for issuing the bargaining order, and for finding
that the employees engaged in an unfair labor prac-
tice strike, as explained below.
The relevant facts, more fully set forth in the
Administrative Law Judge's Decision, are summa-
rized as follows.
On September 15, 1977,2 the Union held an or-
ganizational meeting at which a majority of the 14
unit employees signed authorization cards. The
next day union representatives met with Respond-
ent's president, Bob Splawn, and informed him that
a majority of his employees had selected the Union
to represent them for the purposes of collective
bargaining. Splawn refused to discuss the matter,
suggesting that the Union contact the Board. Soon
i Both Respondent and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge It is the
Board's established policy not to overrule an administrati.e law udge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir 1951) We have carefully examined the record and find
no basis for reversing his findings
We disavow reliance on the Administrative Law Judge's rationale in
sec. UiI, par II. of his Decision, stating that if Gerald Hall were a super-
visor it would not have been necessary for Respondent to interrogate him
or elicit a signed statement that he was superv isor
2 All dates hereafter refer to 1977 ulless ollhersise indicated
thereafter, having consulted his attorney, Splawn
called employee Gerald Hall into his office and
questioned him about his knowledge of the Union's
organizational efforts and about his own union sen-
timents. Later that day, and again on September
20, Hall was once more interrogated concerning
what he knew about the Union, and was asked to
sign a statement admitting he was a supervisor. On
September 20, Hall was threatened with discharge
if he did not sign the statement. The Administra-
tive Law Judge found that the questioning of Hall
on these three occasions and the threat of dis-
charge constituted violations of Section 8(a)(1) of
the Act.
After his meeting with Hall on September 16,
Splawn summoned Supervisor Ray Collins and
asked him who had signed the authorization cards.
When Collins responded that he did not know, he
was told to find out. Shortly thereafter, Collins
told one of the fabrication employees3 that Splawn
had asked him which of them had signed the au-
thorization cards. As found by the Administrative
Law Judge, Respondent thereby interrogated an
employee and created an impression of surveillance
of employees' union activities in violation of Sec-
tion 8(a)(1) of the Act.
On September 20, the unit employees conducted
a meeting at which they agreed that, if Respondent
refused to recognize the Union the following day,
they would strike. The next day, the union repre-
sentatives again demanded that Splawn recognize
the Union. Shortly after Splawn refused, 8 of the
10 bargaining unit employees working on the day
shift walked out of the plant and began picketing
Respondent's premises. Later that evening the
strikers were joined by four other employees, three
of whom worked on the night shift, and Supervisor
Ray Collins.
On September 23, while the employees were
peacefully picketing, Respondent's attorney took
photographs of their activity at the Cuneo prem-
ises. Respondent's representative, Buddy Noll, did
the same at a secondary location, where one em-
ployee was picketing. The Administrative Law
Judge properly rejected Respondent's contention
that it was taking the photographs solely for the
purpose of filing 8(b)(7) and 8(b)(4) charges and to
obtain evidence regarding possible misconduct by
one employee. 4 Accordingly, he found that Re-
:' In sec III of his Decision. par 5 the Administrati.e Law Judge mnad-
verienll stated that Supervisor Collins Iold fabricatin employees uithill
the hargaining unit that Respondenl's president, Splan. had asked hinm
to find out .hich of them had signed auth ri/alioun cards Ihe recoird r-
fleets that Collinls spoke to only one fbrlcallon emploee
4 herc is no indication that Respondent used Ihe photographs n arn
8(bl(7) or (hb)14t proceeding.
253 NLRB No. 110
1025
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's photographing the employees violated
Section 8(a)(1) of the Act.
In February 1978, President Splawn told return-
ing strikers Bowes and Worley that they should
not talk about the Union on the job. Respondent's
promulgation of this rule prohibiting its employees
from engaging in discussion regarding the Union at
any time was properly found to be a violation of
Section 8(a)(1) of the Act. In addition, these two
employees were warned by Splawn at the time of
their return that they should not be late again, and
that they would be discharged if they were late in
the future. The Administrative Law Judge proper-
ly found that this progressive disciplinary system
relating to employees' tardiness was instituted to
discourage membership in the Union in violation of
Section 8(a)(3) and (1) of the Act. He also conclud-
ed that the oral warnings to Bowes and Worley
were given for the same reason, therefore violating
Section 8(a)(3) and (1).
Meanwhile, on November 14, seven employees
made unconditional offers to return to work. They
were Donald Gregg, Jerry Brite, Michael Green,
Allen Bowes, David Worley, Stan Ray, and
Melvin Talkington. Green had previously been re-
instated on October 24, but, as found by the Ad-
ministrative Law Judge, he was lawfully dismissed
on October 26. Accordingly, Green was not eligi-
ble for reinstatement after November 14. Of the re-
maining six employees, none was promptly re-
turned to work, and, at the time of the hearing,
Brite and Talkington still had not received offers of
reinstatement. Having concluded that they had par-
ticipated in an unfair labor practice strike, the Ad-
ministrative Law Judge properly found that Re-
spondent violated Section 8(a)(3) and (1) by failing
immediately to reinstate the six, even if it meant
discharging employees who had been hired as re-
placements.
As stated at the outset, we disagree with the Ad-
ministrative Law Judge's reasoning in issuing a re-
medial bargaining order and in finding that the
strike which began on September 21 was an unfair
labor practice strike. However, we agree with his
ultimate conclusion on both counts.
The Administrative Law Judge stated in his De-
cision that the employees were aware of the unfair
labor practices committed prior to the strike,5 and
that it was this knowledge, plus Respondent's re-
fusal to bargain with the Union, that caused the
employees to strike on September 21. Board law
holds that an unfair labor practice strike does not
result merely because unfair labor practices pre-
s As noted, Respondent's prestrike 8(a)( ) violations included three
separate interrogations, a threat of discharge, and the creation of an im-
pression of surveillance through a conversation with ant employee.
cede the strike. Rather, there must be a causal con-
nection between the two events which demon-
strates that the strike is the direct outcome of the
unfair labor practices. Typoservice Corporation, 203
NLRB 1180 (1973). Even assuming that the em-
ployees were aware of Respondent's illegal con-
duct, as found above, there is nothing in the record
which shows that they were striking at any time
for any purpose other than their stated one: to
achieve recognition of the Union as their bargain-
ing representative. Therefore, whether the strike
was an unfair labor practice strike depends on
whether it can be so classified under the Board's
decision in Drug Package Company, Inc., 228
NLRB 108, 112 (1977), enfd. as modified 570 F.2d
1340 (8th Cir. 1978), decision on remand 241
NLRB 330 (1979). This, in turn, depends on
whether Respondent committed unfair labor prac-
tices of sufficient seriousness to justify imposition
of a remedial bargaining order. In Drug Package,
the Board stated that, "when employees strike for
recognition which should have been granted at the
time they went on strike and where the employer
engaged in contemporaneous widespread illegal
conduct designed to frustrate the statutory scheme,
and bargaining in particular, the striking employees
are unfair labor practice strikers."
We first assume for the sake of argument that the
strike which began on September 21 was an eco-
nomic strike. Upon their unconditional offer to
return to work, economic strikers are entitled to
immediate reinstatement to their former positions
or, if those positions have been filled by permanent
replacements, to full reinstatement upon the depar-
ture of their replacements, unless the employer can
show legitimate and substantial business reasons for
not reinstating the employees. 6 Respondent con-
tends that the strikers had been permanently re-
placed and that they were offered positions by se-
niority as vacancies arose. In support of its asser-
tion, Respondent produced a chart, purportedly re-
flecting the names of strikers and their replace-
ments, when vacancies occurred after November
14, and when offers of reinstatement were made.
However, by Respondent's own admission, the
chart is incomplete in that, among other things, it
fails to indicate the names of all the replacements
and the total number of bargaining unit employees
over that period of time. 7
As noted earlier, the evidence is uncontroverted
that, at the time of hearing, Brite and Talkington
had yet to be offered reinstatement. It is also clear
Ihe Laidlaw (orporation, 171 NIRB 1366 (1968), enfd. 414 F 2d 99
(8th Cir 1969)
7 Respondent conceded that the unit employees may have doubled in
numher since the strike
102h
JOHN CUNEO, INC.
that Bowes and Worley were not offered their jobs
back until February 1, 1978, that Gregg was not
offered reemployment until February 20, 1978, and
Ray not until June 1978. The chart also reflects
that, although the first striking employees were not
offered their jobs back until February 1, vacancies
occurred in the bargaining unit on November 30,
when two replacement employees quit. Respond-
ent's own evidence shows that a new employee
was hired on November 25, and another on Janu-
ary 17, 1978. Clearly, Respondent did not promptly
offer reinstatement to striking employees as soon as
vacancies occurred after the November 14 request
to return to work. Therefore, Respondent's con-
duct was violative of Section 8(a)(3) and (1) of the
Act.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 614 (1969), the Supreme Court decided that a
bargaining order is proper in cases where the em-
ployer's unfair labor practices have the tendency to
undermine the union's majority strength and
impede the election process, and where "the Board
finds that the possibility of erasing the effects of
past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies,
though present, is slight and that employee senti-
ment once expressed through cards would, on bal-
ance, be better protected [thereby]." Having con-
sidered all relevant facts concerning Respondent's
unfair labor practices, we conclude that they were
sufficiently serious and pervasive in character to
preclude the holding of a fair election and to war-
rant the issuance of a bargaining order.
As the events described demonstrate, 6 of the 14
employees in the original unit were discriminated
against for having exercised their Section 7 right to
strike. Brite and Talkington were, in essence, dis-
charged since they were never offered their jobs
back. Bowes, Worley, Gregg, and Ray were not
offered reemployment until months after Respond-
ent had begun filling vacancies that occurred fol-
lowing their request to return to work. In view of
the small size of the unit and the severity of the
discriminatory practices, it is not unreasonable to
infer that other employees were aware of Respond-
ent's unlawful conduct against their coworkers.
Furthermore, almost from the moment it learned of
its employees' support for the Union, Respondent
embarked on an unlawful course of conduct de-
signed to stifle further union activity. One employ-
ee, Gerald Hall, was the subject of three separate
interrogations and a threat of discharge. Supervisor
Collins violated the Act by creating the impression
of surveillance of union activities in his talk with
one employee, and Respondent further violated the
Act by photographing employees as they peaceful-
ly picketed its premises. In addition, when employ-
ees Bowes and Worley returned to work in Febru-
ary 1978, they were told by Respondent's president
that they should not talk about the Union on the
job. Respondent's promulgation of this rule prohib-
iting discussion of the Union at any time was viola-
tive of Section 8(a)(l) of the Act. The two employ-
ees were also warned that they should not be late
again and that they would be discharged if they
were late in the future. We have found that this
progressive disciplinary system was instituted to
discourage union membership in violation of Sec-
tion 8(a)(3) and (1) of the Act. The oral warnings
were found to have the same purpose, and to have
violated the same section of the Act.
Accordingly, we find that Respondent unlawful-
ly refused to bargain with the Union on September
16, the date on which the Union demanded recog-
nition and on which Respondent embarked on its
course of illegal activity. We will, therefore, order
Respondent to bargain retroactively from that date.
Having concluded that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by withholding rec-
ognition from the Union on September 16, the
strike of September 21 was an unfair labor practice
strike under the rationale of Drug Package Compa-
ny, Inc., supra. Accordingly, upon the uncondition-
al offer to return to work on November 14, Re-
spondent had an obligation to reinstate the employ-
ees as unfair labor practice strikers. Its failure to do
so constitutes a violation of Section 8(a)(3) and (1)
of the Act.
CONCLUSIONS OF LAW
1. John Cuneo, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Road Sprinkler Fitters Local No, 669 is a
labor organization within the meaning of Section
2(5) of the Act.
3. All employees engaged in the fabrication of
fire protection systems at Respondent's sprinkler
fabrication shop in Chattanooga, Tennessee, ex-
cluding all other employees, office clerical employ-
ees, truck drivers, professional employees, field in-
stallation personnel, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By interrogating employee Gerald Hall about
his knowledge of the Union and his own union de-
sires and by threatening him with discharge if he
did not admit to being a supervisor; by creating an
impression of surveillance by telling an employee
that Respondent had directed a supervisor to find
which employees were involved with the Union;
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by engaging in surveillance of its employees' activi-
ties on behalf of the Union by taking pictures of its
employees engaged in peaceful picketing; and by
promulgating a rule prohibiting its employees from
engaging in discussions regarding the Union at any
time on Respondent's plant premises, Respondent
has violated Section 8(a)(l) of the Act.
5. By promulgating a progressive disciplinary
system relating to employees' tardiness, instituted
to discourage membership in the Union, and by
orally warning and threatening to discharge em-
ployees Allen Bowes and David Worley for breach
of this new rule, Respondent has violated Section
8(a)(3) and (1) of the Act.
6. By refusing immediately to reinstate unfair
labor practice strikers Donald Gregg, Jerry Brite,
Allen Bowes, David Worley, Stan Ray, and
Melvin Talkington, on November 14, upon their
unconditional offer to return to work on November
14, discharging if necessary any persons hired per-
manently to replace them, Respondent has violated
Section 8(a)(3) and (1) of the Act.
7. By refusing on or about September 16, 1977,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent has violated Section 8(a)(5) and (1) of the
Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
In particular, having found that Respondent has
violated Section 8(a)(3) and (1) of the Act by fail-
ing to offer reinstatement to Donald Gregg, Jerry
Brite, Allen Bowes, David Worley, Stan Ray, and
Melvin Talkington upon their unconditional offer
to return to work on November 14, 1977, we shall
order Respondent to offer them immediate and full
reinstatement, unless reinstatement has already been
offered, to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, discharging, if
necessary, any persons hired permanently to re-
place them, and to make them whole for any loss
of earnings or other benefits they may have suf-
fered as a result of the discrimination practiced
against them, in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), with in-
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).8
Having further found that Respondent violated
Section 8(a)(5) of the Act by refusing to bargain
collectively with the Union, we shall order that it
recognize and, upon request, bargain with the
Union as the exclusive representative of the em-
ployees in the appropriate unit and, if an under-
standing is reached, embody such understanding in
a written, signed agreement.
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,
John Cuneo, Inc., Chattanooga, Tennessee, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Road Sprinkler Fit-
ters Local No. 669 as the exclusive bargaining rep-
resentatives of its employees in the following ap-
propriate unit:
All employees engaged in the fabrication of
fire protection systems at the Respondent's
sprinkler fabrication shop in Chattanooga,
Tennessee, excluding all other employees,
office clerical employees, truck drivers, profes-
sional employee, field installation personnel,
guards and supervisors as defined in the Act.
(b) Interrogating its employees concerning their
union membership and desires and the union mem-
bership and desires of their fellow employees.
(c) Threatening to discharge its employees be-
cause of their activities on behalf of the Union.
(d) Creating an impression of surveillance of its
employees' union activities by telling employees
that Respondent has directed supervisors to find
which employees are involved with the Union.
(e) Engaging in surveillance of its employees' ac-
tivities on behalf of the Union, by taking pictures
of its employees engaged in peaceful picketing of
Respondent.
(f) Promulgating new rules, contrary to its past
practice, relating to employee tardiness in order to
discourage union activity.
(g) Issuing verbal warnings to employees for in-
fractions of Respondent's new rule on tardiness,
which was formulated and maintained because of
the employees' activities on behalf of, and in sup-
8 See, generally, Isis Plumbing & Hteating Co., 138 NLRB 716 (1962)
Member Jenkins would award interest on the backpay in accordance
with the formula set forth in his dissent in Olympic Medical Corporation,
250 NLRB 146 (1980).
1028
JOHN CNEO. INC
port of, the Union and threatening employees with
discharge for further breach of this rule.
(h) Promulgating rules prohibiting its employees
from engaging in discussions regarding the Union
at any time on Respondent's plant premises.
(i) Failing to recall and reinstate unfair labor
practice strikers following an unconditional offer to
return to work to their same or substantially equiv-
alent positions, discharging if necessary any per-
sons hired permanently to replace them.
(j) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with
the above-named labor organization as the exclu-
sive representative of all employees in the aforesaid
appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer Donald Gregg, Jerry Brite, Allen
Bowes, David Worley, Stan Ray, and Melvin Talk-
ington immediate and full reinstatement, unless re-
instatement has already been offered, to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, discharging, if necessary, any per-
sons hired permanently to replace them.
(c) Make Donald Gregg, Jerry Brite, Allen
Bowes, David Worley, Stan Ray, and Melvin Talk-
ington whole for any loss of earnings they may
have suffered due to the discrimination practiced
against them, as set forth in the section of this De-
cision entitled "The Remedy."
(d) Immediately rescind its newly adopted rule
prohibiting its employees from engaging in discus-
sions regarding the Union at any time on Respond-
ent's plant premises.
(e) Immediately rescind its progressive discharge
system relating to employee tardiness because of
their activities on behalf of the Union.
(f) 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.
(g) Post at it Chattanooga, Tennessee, facility
copies of the attached notice marked "Appendix."9
9 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
Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly
signed by an authorized representative of John
Cuneo, Inc., shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(h) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
1T IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
Order f tte Natilnal I.abor Rclations Board'' hall read "'iPomed PIuru
ant ti a Judgment of the ilnted States Court of Appeals FInforiilg A
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORI)DR OF T1HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Road Sprinkler Fitters Local No. 669 as
the exclusive bargaining representative of our
employees in the bargaining unit described
below:
All employees engaged in the fabrication of
fire protection systems at our sprinkler fabri-
cation shop in Chattanooga, Tennessee, ex-
cluding all other employees, office clerical
employees, truck drivers, professional em-
ployees, field installation personnel, guards
and supervisors as defined in the Act.
WE WII.L NOT interrogate our employees
concerning their union membership or desires,
or the union membership and desires of their
fellow employees.
WE WILL NOT threaten to discharge our em-
ployees because of their activities on behalf of
the Union.
WE WILL NOT create an impression of sur-
veillance of our employees' union activities by
telling our employees that we have directed
our supervisors to find which employees are
involved with the Union.
1024
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
WE WILL. NOT engage in surveillance of our
employees' activities on behalf of the Union by
taking pictures of our employees engaged in
peaceful picketing of our plant premises.
WE WIl.l. NOT promulgate new rules, con-
trary to our past practice, relating to employee
tardiness in order to discourage union activity.
WE WII.L NOT issue verbal warnings to our
employees for infraction of our new rule on
tardiness, which was formulated and main-
tained because of our employees' activities on
behalf of and in support of the Union, and WE
WILL NOT threaten our employees with dis-
charge for breach of this rule.
WE WII.. NOT promulgate rules prohibiting
our employees from engaging in discussions
regarding the Union at any time on our plant
premises.
WE WILL NOT fail to recall and reinstate
unfair labor practice strikers following an un-
conditional offer to return to their same or
substantially equivalent positions, discharging,
if necessary, any persons hired permanently to
replace them.
WE WII.l. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain with the above-named labor organization
as the exclusive representative of all employees
in the aforesaid appropriate unit with respect
to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement.
WE WILL offer Donald Gregg, Jerry Brite,
Allen Bowes, David Worley, Stan Ray, and
Melvin Talkington immediate and full rein-
statement, unless reinstatement has already
been offered, to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, discharging if necessary any persons
hired permanently to replace them.
WE WILL make Donald Gregg, Jerry Brite,
Allen Bowes, David Worley, Stan Ray, and
Melvin Talkington whole for any loss of earn-
ings they may have suffered due to the dis-
crimination practiced against them by paying
each of them a sum equal to what he would
have earned, less any net interim earnings, plus
interest.
WE WILL immediately rescind our newly
adopted rule prohibiting our employees from
engaging in discussions regarding the Union at
any time on our plant premises.
WE WILL immediately rescind our proges-
sive discharge system relating to employees'
tardiness which was promulgated because of
our employees' activities on behalf of the
Union.
JOHN CUNEO, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBI.OOD, Administrative Law Judge:
The several complaints which issued in this case allege
that John Cuneo, Inc. (herein Respondent or Cuneo) en-
gaged in conduct violative of Section 8(a)(1), (3), and (5)
of the Act. In its several answers Respondent denied the
commission of any unfair labor practices. A hearing in
this matter was held in Chattanooga, Tennessee, on Sep-
tember 12, 13, and 14, 1978, and November 14, 15, and
16, 1978.
Upon the entire record and from my observations of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed herein, I hereby make the follow-
ing:
FINDINGS OF FACT'
I. THE BUSINESS OF THE COMPANY
Respondent is a Tennessee corporation with an office
and place of business located at Chattanooga, Tennessee,
where it is engaged in the design, fabrication, and sale of
fire protection sprinkler piping systems. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Road Sprinkler
Fitters Local No. 669 (herein the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.2
IIIl. THE ALLEGED UNFAIR I.ABOR PRACTICE
On September 15, 1977,3 the Union held an organiza-
tional meeting at the Chattanooga, Tennessee, Ramada
Inn. In addition to Union Representatives Billy C.
Brown, Tommy Prewett, and Roy Pantell, eight of Re-
spondent's day-shift employees attended this meeting.
4
The findings of fact herein are based on record evidence and testimo-
ny, sometimes disputed. Though the findings may not contain or refer to
all the evidence, all has been considered. Any testimony contrary to the
findings has not been credited. Credibility resolutions have been made on
the basis of the whole record, including the inherent probabilities of the
testimony and the demeanor of the witnesses.
2 Road Sprinkler Fitters Local No. 669, U.A., as set forth in the cap-
tion, is the same Union.
3 Unless otherwise specified all dates refer to 1977
4 The complaint alleges and Respondent admits that "all employees en-
gaged in the fabrication of fire protection systems at Respondent's sprin-
Continued
1030
JO()HN CUNE(). INC.
Union authorization cards were distributed among the
eight employees. Each employee read the card and af-
fixed his signature in the presence of the union repre-
sentatives and the other employees and individually re-
turned the cards to Union Representative Brown. 5
Later that day Melvin Talkington, an employee within
the bargaining unit, obtained the signatures of three
other employees to authorization cards. These three em-
ployees worked on the night shift and did not attend the
union meeting at the Ramada Inn. 6 Talkington then re-
turned to the motel and delivered the cards to Repre-
sentative Brown.
The following day, September 16, Union Representa-
tives Prewett and Pantell visited the Cuneo Fabrication
Shop in Chattanooga, 7 and informed Respondent's presi-
dent, Bob Splawn, that a majority of Splawn's employees
had selected the Union to represent them for the purpose
of collective bargaining, and requested Respondent's
president to recognize and bargain with the Union and to
immediately commence negotiations. Splawn refused this
request and informed the union representatives that they
should submit their information to the National Labor
Relations Board.
Immediately after Splawn advised Prewett and Pantell
that they should submit their information to the Board,
Splawn contacted his attorney, Al Vadnais, and apprised
him of the Union's demands. Splawn then called Gerald
Hall into his office and questioned Hall concerning his
knowledge of the Union's organizational efforts and also
concerning Hall's union desires.R Hall declined to answer
any of Splawn's questions concerning the Union, merely
stating that he did not want to discuss it. Later on in the
day Hall was again summoned into President Splawn's
office. This time attorney Vadnais was present and he in-
formed Hall that he had a right to leave the meeting at
any time. Hall was again asked what he knew about the
Union and he refused to comment. During this meeting
attorney Vadnais asked Hall a series of questions pur-
portedly directed to determining his possible status as a
supervisor under the Act. During the meeting Hall was
asked to sign a statement to the effect that he was a su-
pervisor, Hall refused to do this and he was asked to
think the matter over during the weekend.
kler fabrication shop n Chaltanooga, Tennessee, excluding all other em-
ployees, office clerical employees, truck drivers, professional employees,
field installation personnel, guards and supervisors as defined in the Act.
constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act." he unit is composed of
fabrication and welder employees The parties agree that on September
15 the unit consisted of 14 employees, working on hoth the d;t) and night
shifts
s Employee Gerald Hall, an alleged supervisor, was also present at this
meeting and signed an authorization card along with Donald (ircgg,
Stanton Ray, Mike Green. Melvin Talkington, Ronald Hall. Christopher
IBowes. and David Worley (see (i C Exhs 3 -I() I'he aulhoriuatln card
authorizes the Union or its representatises to represent the employees in
collective-bargaining negotiations on all matters pertaining to rates of
pay, hours, or other condition of employmnent.
o These three employees were George Hall, Jerry Brille, arid Robert
Green (see G.C. Exhs 14, 15, and 16)
' On the same day Union Representative Brown traveled 1o Atlanta
and filed the representation petition in Case 10-RC- 1230
s As I indicated earlier, tall's status as an employee is in question Re-
spondent contends that Gerald Hall as ait supcrisor and that his efforts
in the circulation of the union authorization cards render sluch cards inu
gatory
Following the second meeting with Gerald Hall on
September 16, Ray Collins, an admitted supervisor, was
called into Splawn's office. Collins was informed by
Splawn that he had a visit from the Union and Splawn
asked Collins if he knew who signed the authorization
cards. Collins replied that he did not know. Splawn then
asked Collins to find out who signed the union cards.
After the meeting ended Collins told fabrication employ-
ees within the bargaining unit that Splawn had asked him
to find out which of them had signed the authorization
cards.
On Tuesday, September 20, 1977, Hall was again
called into Splawn's office for a third meeting. Splawn
again questioned Hall concerning the union activities of
the fabrication employees. During this meeting Splawn
again attempted to persuade Hall to sign a statement in-
dicating that he was a supervisor of the fabrication em-
ployees. Hall refused to sign the statement and Splawn
informed him that if he did not sign he would be termi-
nated. Hall told Splawn to go ahead and fire him. At this
point Hall left Splawn's office and went to the bathroom
where he was confronted by Charles Izell, and Supervi-
sor Izell told him that Splawn did not really want to ter-
minate him. Hall then returned to Splawn's office and
the meeting resumed. During the meeting Splawn in-
formed Hall that according to union contracts in other
shops some of the Cuneo shop employees would not
benefit from union representation. With this in mind Hall
agreed that he would sign a statement that he was a su-
pervisor in return for Splawn's promise to speak to the
other employees and prove to them that being represent-
ed by the Union was not in their best interest. At this
point no such statement had been drafted. However a
statement was later drafted and the next day Hall signed
the statement. Hall credibly testified that this statement
merely reflected that he was a supervisor.
Later another statement was presented to Hall by
Charles Izell for his signature. Izell told Hall at the time
that some words had been added reflecting that Hall
might have influenced employees to sign the union au-
thorization cards. Hall accepted Izell's word and never
read the second statement before signing it. The second
statement signed by Hall clearly states that Hall had defi-
nitely encouraged employees to sign authorization cards.
Hall, however, testified that the first statement he signed
only stated that he was a supervisor and there was noth-
ing in it about his encouraging employees to sign author-
ization cards. The first statement Hall signed was not put
in evidence by Respondent because it could not be
found. The second statement definitely states that Hall
did in fact encourage employees to sign authorization
cards. Hall denied encouraging any employee to sign an
authorization card and the record here contains no credi-
ble evidence to establish that Hall did in fact encourage
any employee to sign an authorization card. Whether or
not Hall encouraged employees to sign authorization
cards is only material if Hall is in fact a supervisor.
A. The Supervisory Satus of Gerald Hall
At the time of the events herein Gerald Hall was the
most senior employee in Respondent's fabrication shop,
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having 7 years' experience. Hall was also the most
knowledgeable employee and his hourly rate was higher
than those of his fellow employees. Prior to May, Jerry
Spurgeon had been the first-shift foreman. Spurgeon had
the authority to hire, fire, and discipline employees. He
had been so informed personally by President Splawn.
Spurgeon was salaried and received 2 weeks' paid vaca-
tion. He attended the weekly meetings together with
other of Respondent's management representatives.
Gerald Hall worked on the first shift under Spurgeon for
5 years prior to May. Hall did receive a -week paid va-
cation. Around May 24, Spurgeon was terminated by
Splawn. On the same day that Spurgeon was terminated,
Splawn called a meeting of the shop employees and an-
nounced that, thereafter, Charles Izell would be in
charge of the shop and that the employees would report
directly to him. Charles Izell, Respondent's purchasing
agent and an admitted supervisor, had previously been a
foreman.
According to Hall, he had no authority to hire or fire
or discipline employees or to assign employees to partic-
ular tasks. He testified that Charlie Izell would give him
lists which contained the jobs to be performed in a given
day. That he would separate the lists and hand them out
to each of the different department employees who knew
their jobs and they performed them. Hall testified that
for the most part he merely performed the work like all
other employees. As an experienced employee, Hall
would show new employees how to perform their work
if they were having difficult problems. However this was
no different from other experienced employees because
those who knew showed those that did not know. As
Hall was the most experienced employee in the plant he
obviously was better trained than the other employees.
Hall was hourly paid unlike Spurgeon and Izell and Hall
did not ever attend the weekly management meetings.
Hall did not receive a pay increase when Spurgeon was
discharged and although he did receive a 1-week paid
vacation he had been granted this several years before
Spurgeon left Respondent's employ. Splawn testified that
Spurgeon did have the authority to hire and fire and he
had been informed that he was a supervisor. Splawn also
testified that when Spurgeon left he never told Hall that
he had the authority to hire and fire. Splawn attempts to
explain this by stating that Hall was already a supervisor
and he did not need to inform him of his authority.
Other than the testimony of Respondent's management
witnesses that Hall had the authority to hire and fire and
to discipline employees there is no documentary evi-
dence to support the fact that Hall was promoted to the
position of shop foreman. It is my conclusion that Gerald
Hall was nothing more than a loyal, knowledgeable em-
ployee who was skilled and experienced and often dem-
onstrated job procedures to the inexperienced employees.
He also served as a carrier of instructions for manage-
ment. Based on the record as a whole and on the cred-
ited testimony of Gerald Hall it is my conclusion that
Hall is not a supervisor within the meaning of Section
2(11) of the Act.
Moreover, it is my conclusion that if Hall were a su-
pervisor in fact it would not have been necessary for
Splawn and attorney Vadnais to interrogate him con-
cerning his supervisory duties. Nor would it have been
necessary for them to elicit a signed confession from him
that he was a supervisor.
Furthermore, even assuming that Hall was a supervi-
sor at the time of the events involved herein, other than
the statement given by Hall there is no credible evidence
that Hall in any way attempted or in fact influenced any
employee to sign an authorization card. Because of the
threats and promises made to Hall to get him to sign the
statement I do not rely on that statement as affecting
Hall's credibility in any regard.
Having found that Gerald Hall has no supervisory
status it is my conclusion that Respondent's questioning
of Hall by President Splawn and attorney Vadnais con-
cerning his union activities and activities of other em-
ployees was clearly violative of Section 8(a)(l) of the
Act. Additionally I must conclude that President
Splawn's threat to Hall to discharge him because of his
union affiliation or his failure to discuss the Union with
Splawn was also violative of Section 8(a)(l) of the Act.
Also on September 18. 1977, following Splawn's ques-
tioning of Supervisor Ray Collins and after he had or-
dered Collins to attempt to secure information concern-
ing the Union's organizational campaign Collins ques-
tioned employee Ted Hall concerning his union involve-
ment and told Hall that Splawn had ordered him to find
out what he could about the Union. By these acts Re-
spondent engaged in further acts of interrogation and
also created an impression of surveillance of its employ-
ees' union activities in violation of Section 8(a)(1) of the
Act.
B. The Strike
On September 20. Respondent's employees conducted
a meeting and agreed that if Respondent refused to rec-
ognize and bargain with the Union on the following day
the employees would walk out on strike. On the morning
of September 21, the union representatives again visited
the Cuneo facility and repeated their demands to Splawn
that he recognize and bargain with the Union. Once
more they were refused and Splawn referred the union
representatives to his attorney. Shortly thereafter 8 of
the 10 bargaining unit employees working on the day
shift walked out of the plant and began picketing Re-
spondent's premises. The picket signs stated that Re-
spondent had refused to bargain with the Union. Shortly
after the strike commenced President Splawn ap-
proached the picket line and counted the eight employ-
ees on the picket line and announced that if they did not
abandon the strike and return to work in 15 minutes they
would be permanently replaced. The employees on the
picket line at that time ignored Splawn's admonition and
the strike continued.
Later that evening three of the night-shift fabrication
employees joined the strike and Gerald Hall and Super-
visor Ray Collins quit work and joined the strike them-
selves?! The following day Business Agent Brown, along
with the strikers, entered the fabrication shop and pre-
CrGerald ia]l quit Rspliden's cmplomrnent and does not seek to he
reinsllated Because o i is I hae placed emphasis on his credihlliti .
1032
JOHN CUNEO., INC.
sented Respondent's superintendent, E. C. Noll, with a
petition which 10 out of 14 unit employees executed.' 0
This petition indicated that the employees had selected
the Union as their bargaining representative and indicat-
ed that they were willing to return to work. Again rec-
ognition was denied and none of the employees were re-
turned to work.
On September 23, while the employees were peaceful-
ly picketing the Cuneo premises, attorney Vadnais took
photographs of their activities. Also, Respondent's repre-
sentative Buddy Noll took photographs of Respondent's
employee Melvin Talkington while he was picketing the
Quaker Oats Company, a secondary location, on October
14." Additionally, on September 22, the second day of
the strike, Splawn explained that he received a complaint
that someone had crossed the picket line at an excessive
rate of speed and he secured the services of Pinkerton
guard William Hilliard to take photographs at the picket
line. These photographs were subsequently used to iden-
tify employee Mike Green who was terminated for al-
leged misconduct and for leaving work without an expla-
nation.
In all instances the picketing employees were engaged
in protected concerted activities. Respondent states that
it viewed the picket line as being recognitional picketing
and it was seeking ways to reduce the usual 30 days of
picketing under Section 8(b)(7)(C) of the Act. And in
this regard attorney Vadnais took a photograph of a
truckdriver being impeded in his efforts to enter Cuneo's
facility. (See Resp. Exh. 32.) Additionally Respondent al-
leges that the picture taken by Superintendent E. C. Noll
was to secure pictures of the Union picketing jobs per-
formed by Cuneo at a neutral site in order to file an
8(b)(4)(B) charge. I understand that 8(b)(7)(C) and
8(b)(4)(B) charges were in fact filed.
I do not accept Respondent's explanation that it was
taking these photographs solely for the purpose of filing
8(b)(7) and 8(b)(4) charges and to obtain evidence on one
employee, Michael Green, who was alleged to have en-
gaged in picket line misconduct.
Under well-established Board law an employer en-
gages in surveillance of its employees' activities when he
takes photographs of their picket line activities. Accord-
ingly, I find that Respondent engaged in this activity for
the purpose of intimidating its employees in their organi-
zational efforts and I conclude that such conduct clearly
violates Section 8(a)(1) of the Act.
On September 22, two replacement employees, Odell
Lowry and Lee Ralston, came to the Cuneo facility,
were interviewed by Splawn, hired, and told to report to
work the following day. According to the uncontrovert-
ed testimony of Lee Ralston, as he and Lowry were
leaving the Cuneo plant Michael Green, a striking em-
ployee, told Ralston to get out of the car, that no "son of
a b- was going to take his job away from him" and that
he was going to "stomp his a-." 12
To avoid any trouble Lowry and Ralston drove off
the Cuneo premises, but they were followed by Green
"' (iC Exh 12
" Respondent had an installation crLe t torkilig at hlis ite
12 Although Ralston did not kno"s Mich;ael (rcl at th lr im h tid
subsequentl idnltify him
and another individual for approximately 4 miles. Ral-
ston testified that when he arrived at his destination he
called Cuneo President Splawn and told him what had
occurred.
On October 6, Michael Green called Charles Izell, Re-
spondent's supervisor, and inquired about returning to
work. He informed Izell that he and Donald Gregg were
interested in returning to work. Izell informed Green
that there were no positions available, but as soon as a
position opened up he would be contacted. When the
next position became available Michael Green was con-
tacted by telegram dated October 20, 1977, advising him
that there was a position available and that he could
return to work subject to the Company's right to disci-
pline for any picket line misconduct. Thereafter, it was
arranged between Respondent and Green that Green
would report for work on the second shift on October
24. According to the uncontroverted testimony of
Charles Izell, Respondent's supervisor, it was arranged
that Michael Green would be able to leave work a
couple of hours early to pick up his wife at work. On
this day Izell had asked both Ralston and Lowry to see
if they could identify Green as the assailant who threat-
ened them and followed them on September 22. Both
Ralston and Lowry saw Green in Izell's office that after-
noon and identified him as the individual who threatened
them.
At approximately 5:45 p.m. of that same day, only 2
hours into the shift, Michael Green punched out and left
the shop without advising anyone. The next day Izell
was informed by Splawn that Ralston and Lowry had
identified Green as the picket who had accosted them on
the picket line and who had followed them in his auto-
mobile. Splawn had advised Izell to meet with Green
before the start of the second shift and confront him
with these problems. When Green was confronted with
the fact that he had left the plant at 5:45 p.m. the day
before without permission or informing anyone, he re-
sponded that he had to take his wife to Tri-County Me-
morial Hospital due to an emergency. After Izell in-
formed Splawn of Green's statement Izell told Green he
was suspended pending an investigation of misconduct as
a striker, and his asserted reason for clocking out the
night before. The record reflects that a careful study of
the Tri-County Memorial Hospital records show that no
Mrs. Michael Green or indeed any female named Green
was admitted on October 24 or any other day in the
month of October. On October 26 Green once again met
with Izell at which time Izell gave Green a discharge
letter setting forth the basis on which Green had been
terminated. That letter (Resp. Exh. 25) indicates that
Green was discharged because of misconduct on the
picket line, because of his unauthorized departure from
work on October 24, and his falsification of the reason
he gave for his departure on that day.
Michael Green, the alleged 8(a)(3) discriminatee in the
complaint, was not called by the General Counsel to tes-
tify. Therefore the testimony of Ralston, Splawn, and
Izell as to this matter stands uncontradicted on the
record. The only evidence in this record which would
indicate that Michael Green was discharged for union
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity stems from the testimony of Donald Gregg who
testified that at some point in October or December
Charlie Izell told him that Mike Green was discharged
because he came back in the shop just for the Union. : 3
In view of my credibility findings on this point and in
view of the uncontroverted testimony of Respondent's
witnesses regarding Mike Green's involvement in picket
line misconduct and his unauthorized departure from
work and his fabricated reason for leaving work it is my
conclusion that the General Counsel has failed to estab-
lish that Michael Green was discharged for union activi-
ties in violation of Section 8(a)(3). Therefore I shall rec-
ommend that this portion of the complaint be dismissed.
Additionally, as I have discredited Donald Gregg it is
also my recommendation that the portions of the com-
plaint dealing with this alleged conversation between
Charles Izell and Donald Gregg are dismissed.
On November 14, Thomas W. Hanna, business man-
ager of the Union, forwarded to Robert Splawn, seven
unconditional offers to end the strike and return to work.
These unconditional offers were signed by employees
Donald Gregg, Jerry Brite, Michael Green, Allen
Bowes, David Worley, Stan Ray, and Melvin Talking-
ton. At the time of the hearing all of the employees who
had been on strike and requested reinstatement, with the
exception of Jerry Brite and Melvin Talkington, had
been offered reinstatement.
None of the employees were promptly permitted to
return to work or immediately offered reinstatement. Re-
spondent offered an exhibit purporting to be a copy of
some payroll records in an attempt to show which em-
ployees were working during the week ending Novem-
ber 12. The copy of the exhibit which was received in
evidence was accepted on the condition that Respondent
ultimately produce the original. The originals were never
produced and Respondent's Exhibit 26, which was re-
ceived as evidence, is so illegible that it cannot be used
as evidence in this proceeding. Respondent offered no
other credible evidence to establish that no jobs were
available for these employees on November 14, 1977, or
that these employees had been permanently replaced.
Allen Bowes and David Worley returned to work for
Cuneo in February 1978. On their return these employ-
ees were told by Bob Splawn that they should not talk
about the Union on the job. These employees were also
'" Gregg testified that zell had called him and asked him if he wanted
to come back to work. Gregg said that following this conversation he
went to the plant and talked to lzell and lell asked him if he wanted to
come hack to work tie ifiormed Izell that he did It was during this
conversation that Izell allegedly informed Gregg that Mike Greenl came
back into the shop just for the Union. Gregg also testified that lzell asked
him if he would inform the Company of the Union's activities. Gregg
also testified that Izell asked him if he was still ass(ociated with the Union
On direct examination Gregg testified that these conlversations occurred
after the strike lie was no more explicit than that ()n cross-exlmination
Gregg testified that this conversatorl occurred approximatel I mllonlh
after he had signed a letter dated November 13, whereby he uncolndition-
ally tuffered to return to work On re-direct examination Gregg was
shown a mnailgram dated November I, 1977. in which he was questioned
about his interest i being reinstated and he testified that this cinversa-
lion and mneeting withl Charlie lzell was on November 9 I was nolt im-
pressed with Gregg as a witness nor with his memory. IHis testintony for
the most part appeared to me to be a complete fahricat otn and rlncnslist-
ent with the credited testimony of Charles Izell in this area. Therefore I
discredit Donald Gregg in this regard.
warned that they should not be late again and were
threatened with discharge if they were late in the future.
The record reflects that prior to the advent of the Union
no such policy towards tardiness was in practice at the
Cuneo plant. It is my conclusion that Respondent's pro-
mulgation of this rule prohibiting its employees from en-
gaging in discussion regarding the Union at any time was
a clear violation of Section 8(a)(l) of the Act. Also the
promulgation of the progressive disciplinary system re-
lating to employees' tardiness was done because of the
employees' union activities and concerted activities de-
signed to discourage membership in the Union in viola-
tion of Section 8(a)(1) and (3) of the Act. I also conclude
that the oral warnings to employees Bowes and Worley
were done for the same reason in violation of Section
8(a)(l) and (3) of the Act.
At the hearing the General Counsel amended the com-
plaint by alleging that Respondent, by its supervisor and
agent, President Bob Splawn, on or about September 4,
1978, in and about the vicinity of its plant, granted its
employees benefits and encouraged its employees to re-
frain from attending and testifying in a Board hearing.
And that such acts of Respondent constituted an unfair
labor practice within the meaning of Section 8(a)(l).
Gerald Hall testified that he had had two conversations
with Bob Splawn prior to the hearing. He testified that
the first conversation occurred about 3 months prior to
the hearing. He testified that Splawn had contacted him
through his cousin and he went to the plant to talk to
Splawn. He testified that Splawn asked him if he would
be interested in going back to work with the Company
and he told Splawn no. He testified that the second con-
versation occurred on Labor Day in September 1978
around 9 a.m. He received a telephone call from Splawn
who asked him if he had received his profit-sharing
check yet. And when Hall told him that he had received
his profit-sharing check, Splawn asked him if he was
going to go to the Board hearing and Hall informed him
that he was.
As indicated above, the complaint alleges that Re-
spondent granted its employees benefits and encouraged
its employees to refrain from attending and testifying in a
Board hearing. The above testimony of Hall was given
to support this allegation. It must be remembered that
Gerald Hall was Respondent's most experienced employ-
ee. He had quit his job on the day when the employees
walked out in mass and struck Respondent. Respondent
was obviously in need of skilled employees like Gerald
Hall. I do not regard an employer's offering a former
employee a job as being a grant of benefit or a means of
encouraging its employees to refrain from attending and
testifying in a Board hearing. Additionally, Respondent
was aware that Gerald Hall's supervisory status was in
question and that Gerald Hall would probably be a wit-
ness at the hearing. I do not regard the mere asking an
employee if he intends to attend a Board hearing as a
violation of that employee's Section 7 rights. Under the
circumstances, it is my conclusion that the General
Counsel has failed to sustain his burden with sufficient
evidence to establish that Respondent violated Section
1034
JOHN CUNEO, INC.
8(a)(l) in this regard. Therefore I shall recommend that
this portion of the complaint be dismissed in its entirety.
C. Discussion and Conclusions
In addition to the allegations as set forth above, the
General Counsel also contends that the strike which
began on September 21 was an unfair labor practice
strike and thus all the employees who went on strike
were unfair labor practice strikers and therefore entitled
to reinstatement upon an unconditional offer to return to
work. And when Respondent refused on November 14
to reinstate the six employees who had made an uncondi-
tional offer to return to work Respondent violated Sec-
tion 8(a)(3) and (1) of the Act, by discouraging member-
ship in the Union. Additionally, the complaint alleges
that Respondent has refused to bargain with the Union
since September 16, notwithstanding the fact that the
Union has been at all times material herein the repre-
sentative of a majority of the employees in the unit de-
scribed above. Additionally, the General Counsel argues
that Respondent's conduct herein has destroyed the labo-
ratory conditions indispensable to the conducting of a
Board election and therefore a bargaining order should
issue. Respondent on the other hand denies that the em-
ployees were unfair labor practice strikers but were
merely economic strikers and were replaced by the time
they made their unconditional offer to return to work on
November 14, and that Respondent is entitled to a
Board-conducted election.
D. The Strike
There is no question but that a majority of the em-
ployees in the appropriate unit at Respondent's plant, on
September 15, selected the Union as their collective-bar-
gaining representative. On September 16, the Union
made a demand for recognition and bargaining upon Re-
spondent, and Respondent informed the Union to go to
the National Labor Relations Board. Almost immediately
Respondent through its President Splawn engaged upon
a course of conduct aimed at undermining the employ-
ees' majority representative. In this connection Respond-
ent through President Splawn contacted the company at-
torney, Al Vadnais, and apprised him of the Union's
demand. Splawn then called employee Gerald Hall into
his office and questioned Hall concerning Hall's knowl-
edge of the Union's organizational efforts and also con-
cerning Hall's union desires. Hall declined to discuss the
Union. Later that day attorney Vadnais came to Re-
spondent's premises and once again Gerald Hall was
summoned into President Splawn's office. During this
meeting Hall was questioned by Vadnais concerning his
supervisory status. Splawn again requested Hall to
supply him with information concerning the Union.
Again Hall refused to discuss this matter. Following the
second meeting with Gerald Hall on September 16, Ray
Collins, an admitted supervisor, was called into Splawn's
office. Splawn told Collins about his visit by the Union
and inquired whether Collins knew who signed the
Local 669 cards to which Collins replied he did not.
Splawn then asked Collins to find out who signed the
union cards. After this meeting ended Collins told other
fabrication employees that Splawn had asked him to find
out which of them had signed the authorization cards,
clearly giving an impression of surveillance to the small
number of employees in the plant. On Tuesday. Septem-
ber 20, Gerald Hall was again called into Splawn's office
for a third meeting. He was once again interrogated con-
cerning the union activities of the fabrication employees,
notwithstanding the fact that he had twice indicated
clearly that he did not want to discuss the matter.
During this meeting Hall was persuaded by Splawn to
sign a statement indicating that he was a supervisor.
During this meeting Splawn also informed Hall that if he
did not sign the statement he would be terminated. Hall
replied that Splawn would have to go ahead and fire
him. It is clear that, by the interrogation of Hall, Re-
spondent violated Section X(a)( I) of the Act. It is also
clear that. by requesting Collins to find out which of the
employees had signed authorization cards and by having
Collins to repeat this to the fabrication employees, the
impression of surveillance, also violative of Section
8(a)(l) of the Act. was clearly given. It is obvious that
the employees were well aware of the fact that these
violations had occurred in the plant, particularly with a
plant with only 14 fabrication employees involved.
On the morning of September 21, the Union again vis-
ited the Cuneo plant and repeated its demand that
Splawn recognize the Union and bargain. Once more
Splawn refused. At this juncture 8 of the 10 bargaining
unit employees working on the day shift walked out of
the plant and began picketing. They carried signs indicat-
ing that Respondent had refused to bargain with the
Union. Because of the small number of employees in the
plant and the fact that the 8(a)(1) violations occurred
during an organizational campaign, the 8(a)(1) violations
were pervasive and were all calculated to come to the
attention of virtually all the employees. And it is my
conclusion that the employees were aware of these unfair
labor practices prior to the strike which occurred on
September 21. Therefore it is my conclusion that the
strike which began on September 21 was because of Re-
spondent's refusal to bargain and its unfair labor prac-
tices in violation of Section 8(a)(1) of the Act. It is also
my conclusion that these employees, being unfair labor
practice strikers, were entitled to reinstatement upon
their unconditional offer to return to work, and when
they made such an unconditional offer on November 14,
Respondent was obligated at that point to return them to
work even if it meant the discharge of replacements. Re-
spondent's refusal to reinstate these employees at that
point was clearly a violation of Section 8(a)(3) designed
to discourage membership in the Union and to under-
mine the Union's majority status.
E. The Alleged Refusal To Bargain and a Bargaining
Order
It is well established that an employer need not recog-
nize a Union on the basis of authorization cards, but
rather may insist on a Board-conducted election. Howev-
er, an employer may not refuse recognition on the basis
of authorization cards only for the purpose of gaining
time to unlawfully dissipate a union's majority status.
10.35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, when Respondent learned of its employees' organi-
zational efforts it immediately embarked on a course of
conduct clearly designed to discourage its employees'
choice of a bargaining representative. It is my conclusion
that Respondent clearly forfeited its right to insist upon a
Board election when it unilaterally undertook to deter-
mine the Union's support among its employees by engag-
ing in 8(a)(1) violations prior to the strike, and when, on
September 21, it counted the employees on the picket
line and learned that an unmistakable majority of its em-
ployees had chosen the Union to represent them. Thus at
this point the Union's majority status had definitely been
established. Additionally, on the morning of September
22, the Employer was presented with a petition signed
by 10 of the employees indicating that each had chosen
the Union to represent them. At the same time the em-
ployees verbally informed Superintendent Noll that they
had selected the Union. There could be no question in
Respondent's mind that the Union represented a substan-
tial majority of the fabrication employees. On November
14, when the six employees made an unconditional offer
to return to work Respondent refused to reinstate these
unfair labor practice strikers which was clearly an object
lesson to the shop employees and showed Respondent's
animus and hostility to any effort by them to organize.
While some of the employees did return to work this
cannot destroy the destructive effect of Respondent's
original refusal to reinstate them. Additionally Respond-
ent imposed a strict and absolute no-solicitation rule an-
nounced to Bowes and Worley upon their return to
work as well as instituting a new rule on tardiness and
threatening Bowes and Worley with discharge if they
had four instances of tardiness. In my view this type of
conduct clearly destroys the free atmosphere required
for a Board-conducted election.
It is my conclusion that the nature and pervasiveness
of Respondent's unfair labor practices as described above
have made the holding of a free election impossible and
a bargaining order is warranted to best protect the em-
ployees' rights.
I find that the Employer clearly embarked on a course
of unlawful conduct which may reasonably be deemed to
have undermined the Union's majority status and to have
prevented the holding of a free election as of September
16, when the Employer committed its initial violation of
Section 8(a)(l) of the Act by interrogating employee
Gerald Hall. As the Union's recognition demand was
made on that same day, prior to the interrogation of
Hall, I conclude that the employer should be required to
recognize and bargain upon request with the Union as of
September 16.
As I have concluded that the refusal to bargain oc-
curred on September 16, prior to the strike, it is also my
conclusion that this unfair labor practice helped precipi-.
tate the strike. See Trading Port, Inc., 219 NLRB 298
(1975).
IV. THE FlFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMEIRCI.
The activities of Respondent set forth above, occur-
ring in connection with Respondent's operations, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Tlt RF MEI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent committed a violation of Section
8(a)(5) of the Act, by refusing to recognize the Union in
an appropriate unit at the Cuneo facility and that a bar-
gaining order was proper and that an election was not
required and the employees' sentiments once expressed in
cards would be protected by bargaining order without an
election, I shall order that Respondent be required upon
request to bargain collectively with the Union concern-
ing Respondent's fabrication employees.
As I have found that the strike which commenced on
September 16 was an unfair labor practice strike and that
Respondent's refusal to reinstate the unfair labor practice
strikers who made an unconditional offer to return to
work on November 14 was violative of Section 8(a)(3) of
the Act, I shall recommend that Respondent be ordered
to offer them immediate and full reinstatement, unless re-
instatement has already been offered, to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges and to make whole for any
loss of earnings those strikers who, on November 14,
made an unconditional offer to return to work thereby
making themselves available for employment but were
denied reinstatement by Respondent, with interest. F. W.
Woolworth Company, 90 NLRB 289 (1950); Florida Steel
Corporation, 231 NLRB 657 (1977).
Upon the basis of the foregoing findings of fact, and
the entire record, I make the following:
CONCI USIONS o: LAW
1. John Cuneo, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Road Sprinkler Fitters Local Union No. 669 is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All employees engaged in the fabrication of fire pro-
tection systems at Respondent's Sprinkler Fabricating
Shop in Chattanooga, Tennessee, excluding all other em-
ployees, office clerical employees, truck drivers, profes-
sional employees, field installation personnel, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 16, Road Sprinkler Fitters Local
Union No. 669 has been, and is now, the exclusive repre-
sentative of all the employees in the aforesaid bargaining
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By interrogating its employees concerning their
union membership, activities, and desires, and the union
membership, activities, and desires of other employees;
1036
JOHN CUNEO, INC.
by threatening to discharge its employees because of
their activities on behalf of the Union; by creating an im-
pression of surveillance of its employees' union activities
and by telling employees that Respondent had directed
supervisors to find which employees were involved in
the Union; by engaging in surveillance of its employees'
activities on behalf of the Union by taking pictures of its
employees engaged in peaceful picketing of Respondent;
and by promulgating a rule prohibiting its employees
from engaging in discussions regarding the Union at any
time on Respondent's plant premises, Respondent has en-
gaged in conduct violative of Section 8(a)(l) of the Act.
6. By promulgating a progressive discharge system,
contrary to its past practices relating to employee tardi-
ness, and by issuing oral warnings and threatening dis-
charge of its employees for breach of this new employee
tardiness rule because of their membership in and activi-
ties on behalf of the Union and because they engaged in
concerted activities with other employees for the pur-
pose of collective bargaining and other mutual aid and
protection, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
7. By refusing on November 14, to immediately rein-
state Donald Gregg, Jerry Brite, Allen Bowes, David
Worley, Stan Ray, and Melvin Talkington, all of whom
are unfair labor practice strikers and who made an un-
conditional offer to return to work, Respondent has en-
gaged in violations of Section 8(a)(1) and (3) of the Act.
8. By refusing to recognize and bargain collectively
with the Union in regard to the employees in the unit set
forth above in paragraph three, since on or about Sep-
tember 16, 1977, Respondent has committed unfair labor
practices prohibited by Section 8(a)(5) and (1) of the
Act.
The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
1037