Mose Franck Heating and Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1965

150 N.L.R.B. 850 (N.L.R.B. 1965)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its jobsite at''Jasper,• Texas, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of the service of this Trial Examiner's Decision, what steps it-has taken to
comply herewith.3
2 In the event that this Recommended Order be adopted by, the Board, the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enfoicing an Order" shall be substituted for the words "a Decision and
Order "
3 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES,
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, as amended, we notify you that:
WE WILL NOT unlawfully discourage you from being members of or active on
behalf of Construction and General Laborers Local 853, or any other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not' to engage in union
activities.
WE WILL offer reinstatement to Wesley Warren and Paul and Steve Ozen, and
make them whole for any loss of pay caused by our discrimination against,them.
PAUL HARDEMAN, INC., ,
Employer.
Dated------------------- By---------r---------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement. upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 4271, if they have any question concerning this notice or compli-
ance with its provisions.
Mose Franck Heating and Air Conditioning ,' Inc. and United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
Local Union No. 522 , AFL-CIO. Case No. 9-CA-3086. Janu-
ary 8, 1965
DECISION AND ORDER
On October 23, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 73. -
MOSE FRANCK HEATING AND AIR CONDITIONING, INC. 851
ent had engaged in and' was engaging, in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Decision' and a supporting
brief.
Pursuant to the', provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and, Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant-to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Mose
Franck Heating and Air Conditioning, Inc„ its officers, agents, suc-
cessors, and -assigns; - shall take the action set forth in the Trial
Examiner's Recommended Order.
'In its exception's; the Respondent' contends that the Trial Examiner erred by permit-
ting counsel for the General Counsel, upon, completion, of his case-in-chief, to amend the
complaint to include- allegations of Section 8(a) (1) 'and (5) violations based on interroga-
tion by certain of Respondent's supervisors and on Respondent's grant of unilateral wage
increases, respectively. However, as the record shows that when the amendment was
offered the Respondent made no claim of surprise nor requested a postponement of the
hearing but proceeded to litigate the subject matter fully, we find that the Trial Examiner's
ruling was not prejudicial to the Respondent's cause. See Local 138, International Union
of Operating Engineers, et at (Nassau and Suffolk Contractors' Association, Inc, etc ),
123 NLRB 1393, 1396, footnote 8.
TRIAL EXAMINER'S DECISION
STATEMENT OF _THE CASE
Upon charges, as amended, filed by•,United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, Local Union No. 522, AFL-CIO, herein called the Union, the General
Counsel of the National' Labor Relations Board, through the Regional Director for
Region 9, issued a complaint dated March 17, 1964, alleging that Mose Franck
Heating and Air Conditioning, Inc., herein,called the Respondent or the Company,
has engaged in certain acts and, conduct in,violation of Section 8(a) (1), (3), and
(5) of the National Labor Relations Act, as-amended' (29 U.S.C.), herein called the
Act. The answer of the Respondent admits certain allegations of the complaint but
denies the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton at
Louisville, Kentucky, on April 27, 1964, at which counsel for the parties were
afforded full opportunity to-be heard, to introduce relevant evidence, to present oral
argument, and to file briefs. About June 1, 1964, I received briefs from counsel
for the General Counsel and the Respondent, which I ,have carefully considered.
ri , r r i r • r
t DTI 1 r r r r rl er r - r
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation, is a heating and air-conditioning contrac-
tor engaged at Louisville, Kentucky, in the installation and servicing of heating and
air-conditioning appliances in homes and business establishments. During the year
preceding the issuance of the complaint, the Respondent purchased and received, in
interstate commerce from outside the State of Kentucky, goods and materials valued
in excess of $50,000. I find the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
At all times material herein , Mrs. Mose Franck was secretary -treasurer of the
Company, Charles D. Wentworth was employed as manager of its operations, and
Marion Crone was employed as office manager. It also seems obvious, though not
specifically stated, that Mose Franck was president of the Company. It is conceded
that Wentworth and Crone were employed as supervisors within the meaning of the
Act. At the time in question the Company employed five servicemen or mechanics
who performed installation and repair work ; namely, James Gatewood , Gordon
Chappelle, John C. Girdley, Garvin Nichols , and Stanley McQueen.
The Franck family, according to Crone, also owned or controlled ; Mose Franck,
Incorporated ( a plumbing company ), Mose Franck Electric Company, and Franck
Hardware and Supply Company. Each of these companies , including the Respond-
ent, is a separate corporation but all of them conduct their respective operations
"under the same roof."
B. The issues
Briefly stated, the issues presented are whether the Company (1) discriminatorily
discharged James Gatewood, (2) refused to bargain collectively with the Union, and
(3) restrained and coerced its employees by acts of unlawful interrogation and the
granting of pay increases.'
C. Organizational activities
Gatewood was employed by the Company as a serviceman or mechanic for a
little more than 2 years and was discharged on January 25, 1964.
From the testimony of Gatewood and Crone it appears that the Company paid
premium time, or time and a half, to its servicemen for night calls, but in September
1963, the Company eliminated overtime rates except for hours worked in excess of
44 hours per week. Crone said Gatewood and the other men objected to the new
method adopted by the Company.
Gatewood stated that he discussed the Union with Chappelle, Girdley, and Nichols
as early as the latter part of December 1963, and about January 22 or 23 he agreed
to contact the Union since he had been a member thereof sometime in the past.2
Gatewood, as a result of calls to some members of the Union, then contacted Boyd
Deaton, business agent, about organizing the employees and obtained a batch of
union authorization cards from him. Deaton said he talked to Gatewood about
January 23, and gave him authorization cards to be signed by the employees.
About 7 a.m. on January 24, Gatewood met Chapelle and Nichols at Frisch's
Restaurant, where the men usually gathered for coffee, at which time all of them
signed authorization cards .3 Shortly thereafter, Gatewood signed up Girdley at a
'At the conclusion of the General Counsel's case, I granted his motion to amend the
complaint, over objection of counsel for the Company, to allege unlawful interrogation
and the granting of pay increases
2 Gatewood said he left the trade about 1955 and dropped his membership. Deaton,
the business agent, stated Gatewood was suspended for nonpayment of dues, at some un-
specified time, and was,readmitted to membership around March 1964.
S Hunter, apparently employed as an officer worker in one of the companies, was with
the group, but Gatewood could not recall whether he witnessed the signing of the cards.
MOSE FRANCK HEATING AND AIR CONDITIONING, INC. 853
service station near the shop. Later that day Gatewood turned over the cards to a
union representative at the Union's office. Gatewood did not ask McQueen to sign
a card.
D. The discharge of Gatewood
James Cook, Jr., employed as a plumber by the Franck Plumbing Company testi-
fied he was in Frisch's Restaurant the morning of January 24 and saw Gatewood
collecting the union authorization cards. Gatewood also asked Cook if he would
like to sign an authorization card and he told him "absolutely not." Cook then
reported for work and about 20 minutes later he informed Harlan Cooper, his imme-
diate supervisor who was in charge of the service desk for all the companies, "there
was Union activity going on," among the employees.
Shortly after quitting time that day, 4 o'clock, Cook met Wentworth in the hard-
ware store and told him "I felt he ought to know and everyone else ought to know
upstairs that there was Union activity." Wentworth then took Cook to Crone's office
where he repeated the information to Crone.
Cook admitted he was strongly opposed to the Union and when he observed organ-
izational activities that morning he decided "to let them [supervisors or officials] know
about the Union being organized. I talked to all of them." 4 However, Cook denied
that he gave any information to Cooper, Wentworth, or Crone concerning the names
of the employees who had signed the cards, other than "I had seen these cards," or the
Union involved.
Both Wentworth and Crone testified that on the- afternoon of January 24, Cook
reported the employees were engaging in union activities, in the circumstances
described by Cook. Wentworth further testified that he and Crone questioned Cook
in an attempt to find out the names of the employees engaging in the movement as
well as the Union involved, but Cook refused to give them any information other
than, "there were Union activities going on." Wentworth said the meeting with Cook
lasted about 10 or 15 minutes.
Wentworth testified that he decided to discharge Gatewood "about four o'clock"
the evening of Friday, January 24, for insubordination and because he had made
remarks about the Francks' daughter. The discharge was effectuated the following
day.
1. The alleged insubordination
Wentworth stated that on Monday or Tuesday, January 19 or 20, he was talking
to the "service manager," apparently Cooper, at the service desk when Gatewood
approached them and complained that he had had a rough job the night before and he
was not going to do this kind of work without premium pay. Wentworth said nothing
to Gatewood at that time. The next morning Wentworth called Gatewood to the
office and told him he had been insubordinate and warned him that if he was insub-
ordinate in the future he would be discharged. Of course, Gatewood was simply
warned for this offense and, admittedly, he committed no other act of insubordination
prior to the evening of January 24, when Wentworth decided to fire him. Thus,
Wentworth, on cross-examination by counsel for the Union, testified:
Q. And I believe you testified that this [decision to fire] was because not of
another act of insubordination but because of information that had been relayed
to you by Mr. Mose Franck, the Company owner?
A. That is correct.
Gatewood admitted that about a week before his discharge he told Wentworth,
at the service desk in the presence of a few employees, that he did not think it was
fair to pay straight time for night work. Gatewood denied that he ever refused any
work assignments and that subsequent to the above conversation he did work at night
at straight time.
2. The alleged remarks regarding the Francks' daughter
Wentworth said that about 4 o'clock on Friday, Mose Franck informed him that
Gatewood had made remarks to the Francks' maid to the effect that he could not
"keep his eyes" off the Francks' daughter, Kathie, that he wondered if she was or
had been married, and that he did not see how the Francks could keep such a good
looking girl around the house. Wentworth stated he would have immediately dis-
' Cook had been a member of Plumbers Local 107, in Louisville and was suspended for
nonpayment of dues. Without any reference to dates, Cook said he allowed his dues to
lapse for 3 months ; he then served 6 months in the Army and after his discharge he
remained in Florida for 3 months. Cook admitted he made no attempt to take out a
withdrawal card either before or after his Army service.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Gatewood but he had left the shop., He further stated that-;at that time he
did not know "specifically" whether Gatewood was engaging in any union activities.
On cross-examination, Wentworth first stated his conversation with Franck took
place at 4 o'clock and that he met Cook in the hardware store about 4:30. Later he
admitted both conversations "happened very closely together." Wentworth also
explained he did not attempt to contact Gatewood after his talk with Franck because
he had to take care of a customer. • '
Wentworth further stated that sometime in the past; he did not give the approximate
month or year, a customer, whom' he could not identify, complained to him about a
bill for services and in the course of the discussion the customer said he did not want
Gatewood to do any service work in his home "because his wife didn't feel comfortable
with him around." Wentworth was certain he brought the matter to Gatewood's
attention because the customer had questioned the bill. Wentworth admitted this
alleged incident had nothing to do with Gatewood's discharge.
It is undisputed that Gatewood and Bud Abbott, an employee of Franck Electric
Company, performed some work at the Franck home on Friday, January 17 -'It4s
also clear that Gatewood saw and spoke to Mrs. Franck and Kathie, and when'he
had finished the job, around 7 o'clock in the evening, Mrs. Franck asked him'to drive
their maid, Mary M. White, to a nearby service station to pick up her car, which he did.
White related that during this trip, which took about '10 minutes, Gatewood said
Kathie was so pretty he could "hardly keep-his eyes off her." Gatewood then asked
if Kathie was married and when White said she was not married at the present time,
he said he would like to have a date with her. He also commented that he could-not
understand how she stayed single,'pretty as she was. Gatewood cautioned White not
to mention their conversation to Mrs. Franck "because she would chase him right off
the job." On Monday morning, January 19, White reported the conversation to Mrs.
Franck and Kathie, which seemed to "upset" them, and Mrs. Franck stated, in effect,
they could not have that type of person working' for the Company. At the hearing
the General Counsel produced a statement signed by White, which was secured by
counsel for the Company and submitted to the General Counsel prior thereto. White's
testimony was consistent with her statement, except for the fact that the statement
makes no mention of Gatewood's remark that he would like to have a date'with Kathie.
However, White, said he did make this statement.
Gatewood's account of the conversation was to the'effect that he commented Kathie
was nice looking and asked White whether she was married or had been married.
Gatewood specifically denied that he expressed any desire to have a date with Kathie.
'Gatewood denied that Wentworth ever spoke to him regarding the complaint from
the unknown customer. " I I
None of the Francks testified at the hearing. '
I have no doubt Gatewood talked with' White 'generally' along the line related by
White. However, I accept Gatewood's testimony 'and find that he' did not express
any wish to have a date with Kathie. " '
3. The events of January 25 '
Girdley testified he signed his card the morning of January 24, and the following
morning he told Wentworth he had signed up for the Union. However, Girdley
could not remember if he "told him the other, fellows did or-did not. [sign cards]
on that day." '
Wentworth made no mention of this conversation in the course of his testimony.
As-appears below, he admitted talking to Girdley and the other three employees on
January 27 and 28. - ' • .11. <<
Gatewood reported for work as usual the morning ofJanuary,25, and as he was
about to leave, around 12.30, he was called or brought to the office. There he-met
Wentworth and Crone one of whom told him they understood he had made remarks
about the Francks' daughter, that he had been griping about working conditions,
and that he was being discharged. Gatewood then gave his'account of this conversa-
tion with White, as set forth above, and stated he, did not believe,he was being dis-
charged for that reason. '
Wentworth testified Gatewood was 'sent out on' some service calls on 'Saturday
morning and while taking care of these calls Wentworth found out "the- amount of
time that he had that day" and then instructed Crone to make up his final paycheck.
Crone told Gatewood he was being'discharged for insubordination and because of
remarks he had made about the Francks' daughter.
4. Events subsequent to Gatewood's discharge
Chappelle testified that on Monday morning,, January 27,'"everybody" knew Gate-
wood had been fired. Chappelle, Nichols, and Girdley them discussed how they, "as
MOSE FRANCK HEATING AND AIR CONDITIONING, INC. 855
a group, could agree to eliminate the cards or back out of the Union ." However,
no final decision was reached because the men "wanted to know how the Company
felt about it." Chappelle was thereupon designated to act as spokesman for the group.
Chappelle then met with Wentworth and told him they had all signed union cards,
except McQueen . Chappelle asked if the men had done the right thing , how the
Company felt about it, and if there was any way to get back their cards, but Went-
worth declined to give him any information or assistance . Chappelle also spoke to
Crone, Cooper , and Charles Franck, son of Mose Franck , along the same line with
the same result.
Wentworth testified that on Monday morning, "we first asked the men if there were
Union activities going on and if they had signed cards and that is the first time that
we knew about this as far as I was concerned ." Wentworth went on to say that
Chappelle came to the office and inquired if the men had made the right decision
in joining the Union and how the Company felt about having the Union in the shop,
but he refused to give him any advice or information . Wentworth said Crone,
Cooper, and Charles Franck were present throughout the meeting , which lasted 30
to 45 minutes.
The same morning Nichols and Girdley had separate conversations with Wentworth
wherein they told him they had signed union cards but had changed their minds and
did not want the Union to represent them.
Admittedly , none of these individuals made any attempt to revoke their author-
ization cards.
McQueen also advised Wentworth and Crone about January 27 or 28, that he had
never signed up for the Union , that he was satisfied with working conditions , and did
not desire the Union to represent him.
E. The refusal to bargain'
The parties agree that a unit consisting of all employees of the Company at its
shop at 4224 Shelby Road, Louisville , Kentucky , excluding office clerical employees,
guards, professional employees, and supervisors , as defined in the Act , is appropriate
for the purpose of collective bargaining within the meaning of Section 9(b) of
the Act.
By letter dated January 27 , the Union requested recognition as the bargaining repre-
sentative of all the employees in the unit, asked for a meeting within 5 days, and
offered to prove its majority status, if necessary , through a card check by a neutral
party. . The Company received the letter on January 28 or 29. In substance, Went-
worth and Crone conceded the Union had signed authorization cards from four of
the five employees in the unit , but since Gatewood had been discharged and the
remaining men said they did not wish to be represented by the Union , the Company
entertained a good-faith doubt concerning its majority status and , therefore, refused
to grant its request for recognition . The parties stipulated the Company refused the
Union 's request for reinstatement of Gatewood and the Union declined the Com-
pany's offer to enter into a consent -election agreement.
Analysis and Concluding Findings
The General Counsel contends that Gatewood was discriminatorily discharged
while the Company asserts that he was terminated for valid reasons and it had no
knowledge Gatewood was engaging in organizational activities at the time.
The evidence 'leaves no doubt that Gatewood was the leading proponent for union-
ization of the shop. Thus, following earlier discussions on organization , Gatewood,
about January 22 or 23, at the request of Chappelle, Girdley , and Nichols , conferred
with Deaton and obtained authorization cards from him for distribution among the
employees . It is also undisputed that on the morning of January 24 , Gatewood
secured signed cards from each of the above -named employees , which cards , including
his own , he delivered to union headquarters later that day.
Cook knew that Gatewood was soliciting for the Union and saw Gatewood collect
authorization cards from Chappelle and Nichols. As Cook was openly hostile to the
Union he decided to inform the supervisors or officials that organizational activities
were being conducted among the employees and about 20 minutes after he reported
for work he did advise his immediate supervisor , Cooper, of that fact . Later the
same day, shortly after 4 o'clock , Cook made a similar report to Wentworth, who
then took him to the office . There, Cook repeated the information to Crone, in the
presence of Wentworth . While Cook admitted he told Cooper, Wentworth , and Crone
of organizational activities and that he "had seen the cards," he denied that he gave
any information regarding the names of the men or the Union involved . Wentworth
also stated that during the meeting with Cook , which lasted 10 or 15 minutes, both
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he and Crone questioned him regarding the identity of the employees and the name
of the Union but he refused to give them any information other than "there was
Union activities going on."
According to Wentworth's version of events, Mose Franck reported that Gatewood
had made some remarks regarding his daughter shortly before, or around the same
time as, Wentworth's meeting with Cook. Wentworth thereupon decided to discharge
Gatewood but as he had left the shop the discharge was accomplished the following
day.
It is clear Franck's report to Wentworth triggered the decision to fire Gatewood,
with the insubordination factor included as an afterthought. Counsel for the Com-
pany, in his brief, characterizes Gatewood's remarks as "highly insulting to any
proper young lady" and, naturally, would cause much concern to her parents. While
Gatewood may have acted indiscreetly in the matter, I fail to see how his remarks
can be considered as insulting or derogatory to any members of the Franck family.
Of course, this does not mean that the Company could not have dismissed Gatewood
for his conduct, provided that was the real reason for its action. Here, the undis-
puted evidence shows that White informed Mrs. Franck of Gatewood's remarks on
Monday morning, January 19. Despite this knowledge, neither of the Francks re-
ported the incident to Wentworth until around 4 o'clock the afternoon of January 24.
Manifestly, this inaction and delay negates the idea that the Franck family was
very much disturbed or concerned about Gatewood's conduct. Again, while Went-
worth pretended to be shocked upon receiving the news on Friday afternoon, and
would have summarily dismissed Gatewood if he had been available, nevertheless,
he permitted Gatewood to work on Saturday and did not discharge him until after
he had completed his service calls. Thus, Wentworth's handling of the affair
deflates the argument that he had some doubt about sending Gatewood into the homes
of customers, or that Gatewood might in some way tarnish the Company's reputation.
The evidence, therefore, conclusively demonstrates that the Company and the
Francks completely ignored Gatewood's remarks throughout the interval January 19
to 23, when there was no sign of union activity, but when he signed up four of the
five shop employees on the morning of January 24, Gatewood's conduct then became
so reprehensible that it had to discharge him immediately.
Likewise, there is no merit whatever in Wentworth's claim that insubordination
was one of the reasons for Gatewood's discharge. Wentworth's own testimony shows
that he simply dug up a prior act of alleged insubordination committed by Gatewood
on January 19 or 20, which had been promptly closed with a warning to Gatewood
to refrain from such conduct in the future., Admittedly, Gatewood had not com-
mitted any offense subsequent to the warning.
The Company further contends that it had no knowledge of Gatewood's union
activities either at the time the decision was made to discharge him or at the time
the discharge was actually made.
As might be expected in the present circumstances, there is no direct evidence that
the Company knew Gatewood was engaging in union activities at the crucial hours
involved herein. However, it is well established that such knowledge may be inferred
from the record as a whole.
There is no question that the Company was aware of organizational activities the
morning of January 24, for Cook reported such activities to Cooper, who was
employed in a supervisory capacity and acted as service manager for all the com-
panies.6 It might also be noted that Cooper was present at the meeting the morning
of January 27, when Wentworth questioned Chappelle regarding the Union. It is
also undisputed that Cook made a similar, report to Wentworth shortly after 4 o'clock
Friday afternoon, but Wentworth claimed he had decided to discharge Gatewood
prior to the receipt of this information. Nevertheless, Wentworth and Crone pro-
ceeded to interrogate Cook in any attempt to learn the identity of the employees
involved in the movement, as well as the name of the Union, but Cook declined to
reveal this information. I find it difficult to believe that Cook, who was hostile to
the Union and who had twice reported on union activities, would draw the line at
revealing the identity of the employees or even the name of the Union. I, therefore,
consider it reasonable to infer that he supplied the company supervisors with this
information, although I do not base my finding of knowledge exclusively on this
inference.
5 N:L.R B. v Link-Belt Company, 311 U.S. 584, 602; Angwell Curtain Company, Inc
v. N.L.R.B, 192 F. 2d 899 , 903 (C A. 7) ; Wiese Plow Welding Co , Inc., 123 NLRB 616;
Sealtest Southern Dairies Division, . National Dairy Products Corporation, 126 NLRB
1223 , 1228-1229, enfd . 287 F 2d 559 (C A. 6).
0 N L.R.B. v Montgomery Ward & Co., Inc , 242 F. 2d 497 , 501 (C.A. 2).
MOSE FRANCK HEATING AND AIR CONDITIONING, INC. 857
The reasons advanced by the Company for Gatewood 's discharge are patently fic-
ticious and the court 's disposition of a pretextuous dismissal in Hickory Chair Manu-
facturing Company v . N.L.R.B ., 131 F. 2d 849 , 852 (C.A . 4), is certainly applicable
to the present facts . There the court stated.
The excuses given for his discharge were trivial in the extreme and the pre-
sumption that the real reason was his union activities , which must have been
known to his employers , is practically conclusive.
Furthermore , proof of knowledge as well as motivation is established by the fact that
( 1) Gatewood was the leading proponent of the Union in a unit composed of only
five employees , and (2 ) he was suddenly discharged for flimsy reasons almost imme-
diately after he had signed up a majority of the employees and shortly before the
Union's request for recognition.7
I, therefore , find and conclude that the Company was aware of Gatewood 's activ-
ities on behalf of the Union and that it discharged him for pretextual reasons in order
to discourage membership and activities in behalf of the Union and to prevent the
employees from exercising the rights guaranteed them in the Act. By engaging in
such conduct the Company thereby engaged in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act
As found above , Wentworth admitted that he and Crone interrogated Cook the
afternoon of January 24 concerning union activities and the identity of the employ-
ees and the Union involved.
Wentworth further admitted that on the morning of January 27 , "we first asked the
men if there were union activities going on and if they had signed cards ." It is also
true, and as might be expected , Chapelle, Nichols , and Girdley were very much dis-
turbed with the summary discharge of Gatewood and designated Chappelle as their
spokesman to meet with Wentworth for the purpose of finding out the Company's
attitude toward the Union and how they could get back their authorization cards.
There is no doubt Chappelle had a rather lengthy meeting with Wentworth , Crone,
and Charles Franck for the stated objectives , but Wentworth refused to give him any
advice as to how they might secure the return of their cards . Later, Nichols and
Girdley informed Wentworth they had signed cards but no longer desired the Union
to represent them.
The Company , in its brief , concedes it "talked to" the employees but as the talks
were free of threats or promises of benefits , they fall within the rule announced in
the Blue Flash Express , case ( 109 NLRB 591 ). In that case the Board held that an
employer's interrogation of its employees was lawful where ( 1) its sole purpose was
to ascertain whether a union demanding recognition actually represented a majority,
(2) there were assurances against reprisal , and (3 ) the interrogation occurred in a
background free from union animus . Of course , the facts in this case bear no resem-
blance to those in the Blue Flash case . Here, there was no demand for recognition
at the time of the interrogations , nor did the Company give any assurances to Chap-
pelle, Nichols , or Girdley that they might retain their membership in the Union with-
out fear of reprisal or discharge . Moreover , the interrogations occurred in the
context of contemporaneous unfair labor practices , the coercive interrogation of
Cook, and the discriminatory discharge of Gatewood , and were, manifestly , designed
to destroy the Union 's majority in anticipation of its demand for recognition as-the
statutory representative of all its shop employees.
I, therefore . find and conclude that the Company by interrogating its employees
regarding their union membership and activities, on January 25 and 27, thereby inter-
fered with , restrained , and coerced its employees in the exercise of the rights guar-
anteed them in Section 7 of the Act , in violation of Section 8(a)(1) thereof.
The Company contends that it refused to recognize and bargain collectively with
the Union because it entertained a good-faith doubt regarding the Union 's majority
status and that it was under no obligation to recognize the Union until it had estab-
lished its majority status through a Board-conducted election
The facts herein refute the argument the Company had any good -faith doubt
regarding the Union 's majority status. The Company admits that as of January 27,
it knew the Union had signed authorization cards from four_ of the five employees in
the unit, and the evidence plainly shows that each employee signed his card without
reservation and free of any coercion or threats . However, since Gatewood had been
discharged and Chappelle, Nichols, and Girdley stated they had changed their posi-
tions about the Union and no longer wished the Union to represent them, the Com-
7 Tanner Motor Livery, Ltd., 148• NLRB 1402 ; Metals Engineering Corporation, 148
NLRB 88, Estate of Nathan Gladstone d/b/a Passetts Bakery, 147 NLRB 515 ; Berger
Publishing , Inc, 147 NLRB 21; Tele-Trip Company, Inc. 146 NLRB 276; The Bama
Company, 145 NLRB 1141 ; Wiese Plow Welding Co , Inc., supra.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany concluded the Union did not then represent a majority of the employees in the
unit. Thus, it was not until after the employees had learned of Gatewood's discharge
that they reconsidered their earlier decision to join the Union and then, following
Chappelle's meeting with company officials, that they all decided they did not want
the Union as their bargaining representative. Clearly, if there was any dissatisfaction
or implied rejection of the Union by these employees it was attributable to the unfair
labor practices committed by the Company. In this situation it cannot be said that
the Company had a genuine doubt as the Union's majority status. Consequently, the
Company's insistence upon an election for the sole purpose of proving something,
of which it was already convinced, is to impose an unnecessary obstacle to collective
bargaining. Such a course of conduct falls short of meeting the obligation of the
Act to recognize and -negotiate with the designated union and amounts to a refusal
to bargain in good faith.
Accordingly, I find and conclude that the Company by refusing to bargain with
the Union on and.after January 28 or 29, 1964, thereby violated Section 8(a) (5) and
(1) of the Act 8
The remaining issue to be resolved is whether the Company unilaterally granted
wage increases subsequent to the Union's demand for recognition.
From the vague and meager testimony on this point it appears that Chappelle,
sometime prior to the present union activity, requested an increase, that his request
was granted, and that he actually received the increase about the time he signed his
authorization card. Crone said Chappelle's request was granted, effective the work-
week ending Tuesday, January 21, that his check was prepared on Thursday, January
23, and given to him the next day, which was the regular payday. It also seems that
around the same time Nichols was given an automatic raise after he had worked for
the Company for 6 months.
I find this evidence insufficient to sustain the allegation of the complaint, as amended,
that the Company unilaterally granted increases after the Union's demand for
recognition.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices by refusing
on and after January 28, 1964, to recognize and bargain with the Union as the exclu-
sive representative of its employees in an appropriate unit, I shall recommend that the
Respondent cease and desist therefrom, and, upon request, bargain collectively with
the Union and, if an understanding is reached, embody such understanding in a
signed agreement.
Having found that the Respondent engaged in unfair labor practices by discharging
James Gatewood and by interrogating its employees, I shall recommend that it cease
and desist therefrom or from in any other manner infringing upon the rights of its
employees guaranteed in Section 7 of the Act.
Having found that the Respondent engaged in unfair labor practices by discharging
James Gatewood on January 25, 1964, I shall recommend that the Respondent offer
him immediate and full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason of the Respondent's
discrimination against him. Backpay, with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Mose Franck Heating and Air Conditioning, Inc, is an employer as defined in
Section 2(2) of the Act and is engaged in commerce within the meaning of Section
2(6) and (7) thereof. '
8 Bilinski Sausage Manufacturing Company, Inc, 132 NLRB 229*; Habib .Ita; cus, d/b/a
Marcus Bros, 123 NLRB 33, enfd 272 F. 2d 253 (CA. 2) 'See also Joy Silk Hills, Inc,
85 NLRB 1263, enfd. 185 F. 2d 732 (C A.D C) ; Arts d Crafts Distributors, Inc, 132
NLRB 166; George Groh and Sons, 141 NLRB 931; enfd 329 F. 2d 265 (C.A. 10).
MDSE FRANCK HEATING AND AIR CONDITIONING , INC. S59
2. United Association of Journeymen and Apprentices of, the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local Union No. 522, AFL-CIO,
is a labor organization as defined in Section 2(5) of the Act.
3. All employees of the Company at its shop at 4224 Shelby Road, Louisville,
Kentucky, excluding office clerical employees, guards, professional employees, and
supervisors, as defined in the Act, constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the Act.
4. The Union_ at all times material herein has been and now is the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after January 28, 1964, to recognize and bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent engaged in unfair labor practices within the meaning
of Section 8(a) (5) and (1) of the Act.
6. By coercively interrogating its employees concerning their union membership
and activities the Respondent engaged in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. By discharging James Gatewood on January 25, 1964, the Respondent engaged
in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
8. By engaging in the foregoing unfair labor practices the Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act, in violation of Section 8 (a) (1) thereof.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent did not unilaterally grant increases to its employees subse-
quent to the Union's request for recognition as alleged in the complaint, as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I recommend that the Respondent, Mose Franck
Heating and Air Conditioning, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively concerning wages, rates of pay,
hours of employment, and other conditions of employment with United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 522, AFL-CIO, as the exclusive representative
of all its employees in the following appropriate unit:
All employees of the Company at its shop at 4224 Shelby Road, Louisville, Ken-
tucky, excluding office clerical employees, guards, professional employees, and super-
visors, as defined in the Act.
(b) Interrogating employees concerning their union membership, activities, or
sympathies, in a manner constituting interference, restraint, or coercion within the
meaning of Section 8 (a) (1) of the Act.
(c) Discouraging membership in and activity on behalf of the above-named Union,
or any other labor organization of its employees, by discharging James Gatewood, or
otherwise discriminating against, him, or any of its employees, in regard to their hire
or tenure of employment or any term or condition of employment, except as permitted
by the proviso to Section 8 (a) (3) of the Act.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, recognize and baigain collectively concerning wages, rates of
pay, hours of employment, and other conditions of employment with United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local Union No. 522, AFL-CIO, as the exclusive repre-
sentative of all employees in the above-described unit, and, if an understanding is
reached, embody such understanding in a signed agreement
(b) Offer to James Gatewood immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the Respondent's .discrimination against him, together with interest at the
rate of 6 percent per annum, in the manner set forth in the section entitled "The
Remedy." '
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces.
(d) Preserve and, upon request , make available to the Board and its agents, for
examination and copying , all payroll records , social security payment records, time-
cards , personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due and the rights of reinstatement under the terms
of this Recommended Order.
(e) Post at its office and shop copies of the attached notice marked "Appendix." 8
Copies of said notice , to be furnished by the Regional Director for Region 9, shall,
after being duly signed by the Respondent 's representative , be posted by the Respond-
ent immediately upon receipt thereof , and be maintained by it for a period of 60
consecutive days thereafter , in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(f) Notify the said Regional Director , in writing , within 20 days from the date of
the receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.'°
It is further recommended that unless on or before 20 days from the date of receipt
of this Decision and Recommended Order, the Respondent notifies the said Regional
Director , in writing , that it will comply with the above Recommended Order, the
National Labor Relations Board issue an Order requiring it to take such action.
It is further recommended that the complaint, as amended , be dismissed insofar
as it alleges the Respondent unlawfully granted unilateral pay increases.
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board, this,provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, recognize and bargain collectively with United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local Union No. 522, AFL-CIO, as the
exclusive representative of all the employees in the bargaining unit described
below with respect to wages, rates of pay, hours of employment, and other condi-
tions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All employees of the Company at its shop at 4224 Shelby Road, Louisville,
Kentucky, excluding office clerical employees, guards, professional employ-
ees, and supervisors, as defined in the Act.
WE WILL offer James Gatewood immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
WE WILL NOT interrogate our employees concerning their union membership,
activities, or sympathies, in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the Act.
WE WILL NOT discourage membership in the above-named Union, or any other
labor organization, by discharging or otherwise discriminating against our
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them in Section 7 of the Act,
DIXON FORD SHOE CO., INC. 861
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act.
All our employees are free to become and remain or to refrain from becoming or
remaining members of the above-named Union or any other union.
MOSE FRANCK HEATING AND AIR CONDITIONING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200,
if they have any question concerning this notice or compliance with its provisions.
Dixon Ford Shoe Co. , Inc. and Boot & Shoe Workers ' Union,
AFL-CIO . Case No. 24-CA-1882. January 11, 1965
DECISION AND ORDER
On October 21, 1964, Trial Examiner Max Rosenberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this proceeding, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Dixon
Ford Shoe Co., Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
150 NLRB No. 86.