Nat Harrison Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1969

177 N.L.R.B. 113 (N.L.R.B. 1969)

NAT HARRISON ASSOCIATES
Nat Harrison Associates, Inc. and International
Brotherhood of Electrical Workers, Local No. 728,
AFL-CIO. Case 12-CA-4305 (1-2)
June 27, 1969
DECISION AND ORDER
B) MFMBI RS PANNING, BROWN, AND JFNKINS
On March 12, 1969, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner'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, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Nat Harrison
Associates, Inc., Ft. Lauderdale, Florida, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
we agree with the Trial Examiner that the Respondent engaged in
extensive violations of the Act including wholesale unlawful interrogation,
threats to discharge employees because of their union activities , promises
of benefits to employees to refrain from union activity, and the discharge
of two employees because they joined the Union Moreover , as concluded
by the Trial Examiner, Respondent may not destroy the very conditions
needed for a fair election , as we find occurred herein , and at the same time
successfully maintain that an election is the sole means for determining the
desires of the employees Accordingly, as we conclude that the
Respondent ' s massive unfair labor practices have made the holding of a
fair election unlikely, we shall provide , as did the Trial Examiner, for an
8(a)(5) bargaining order See N L R.B v. Gissel Packing Co . Inc , 395
U S 575
TRIAL EXAMINER'S DECISION
STAT E MENT OF THE CASE
RICHARD D. TAPI. ITz, Trial Examiner: This case was
177 NLRB No. 24
113
tried in Miami , Florida , on December 3, 4, 5, 6, and 9.'
The issues litigated were framed by a complaint dated
November 1, as amended at the hearing , alleging
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended , and an answer, as
amended at the hearing , filed by Nat Harrison Associates,
Inc., herein called Respondent , which denies that
Respondent violated the Act. The complaint was based on
a charge in Case 12-CA-4305 dated August 9 , a charge in
Case 12-CA-4305-2 dated August 26, and an amended
charge in Case 12-CA-4305 ( 1-2) dated October 23, all
filed by the International Brotherhood of Electrical
Workers, Local No. 728, AFL-CIO, herein called the
Union . All parties appeared at the hearing and were given
full opportunity to participate , to adduce relevant
evidence , to examine and cross-examine witnesses, to
argue orally , and to file briefs . A brief which has been
carefully considered was filed on behalf of the
Respondent.
Issues
1. Whether Respondent violated Section 8(a)(1) of the
Act by interrogating employees concering their activities
on behalf of the Union and by interfering with their right
to engage in such activity by threatening them with
reprisals if they were for the Union and promising them
benefits if they were against the Union.
2. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging James F. Aldridge and Willie L.
Jeter in order to discourage membership in the Union.
3. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to recognize and bargain with the
Union.
Upon the entire record and from my observation of the
demeanor of the witnesses while they were testifying under
oath, I make the following:
Findings of Fact
1. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation with its principal
place of business at 5600 Northeast Fourth Avenue,
Miami, Florida, is engaged in the construction business.
Its primary work is electrical construction, such as the
installation of electrical high lines, pipe cable, and satellite
towers, in various States of the United States and in
foreign countries. This work is necessarily done at various
construction sites in the field. Minor maintenance and
repair of Respondent's machinery and equipment is done
by mechanics in the field but for major maintenance and
repair and for the dispatching of equipment to the various
jobs Respondent maintains three maintenance and
equipment yards. One is at Florence, New Jersey, one in
Baton Rouge, Louisiana, and a third at 3615 Southwest
47th Avenue, Ft. Lauderdale, Florida. The Ft. Lauderdale
yard is the situs of the alleged unfair labor practices in
this proceeding.
During the 12 months immediately preceding the
issuance of the complaint, Respondent purchased goods
and materials valued in excess of $50,000 directly from
suppliers located outside the State of Florida.
' All dates are in 1968 unless otherwise specified.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges , the answer admits, and I find
that 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 complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THL ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1) of the
Act
Facts
1 The organizational activity and Respondent's
knowledge thereof
In about May Elbert A. Pirkle , a mechanic-welder in
Respondent' s employ , began discussing the possibility of
organizing Respondent ' s employees with the employee of
another employer in Respondent ' s industry . By July 18
Elbert A . Pirkle had received from the other employee
and from the Union blank application cards for
membership in the Union . On that date he passed out
about 20 cards to employees of Respondent at the Ft.
Lauderdale yard . Groups of cards were given to some of
the employees and they in turn passed them out to other
employees . On July 31 the Union held a meeting which
was attended by many of Respondent's employees . At this
meeting W. L. Henderson , the Union's business manager,
told the employees that they would be processed through
the Local and that they would be represented by the Local
Union. At that time Pirkle turned in a number of cards
and other employees turned in the cards that they had
signed.
Woodrow E . Maddy is Respondent ' s equipment
superintendent and an admitted supervisor within the
meaning of the Act. Though John Flora , Respondent's
shop foreman and yard supervisor for the Ft . Lauderdale
yard , is ordinarily in charge of that yard , Maddy who is
over Flora in Respondent's supervisory hierarchy was
given Flora ' s duties from July 28 through August 5 while
Flora was absent from the yard. Maddy testified that on
August 1 he saw an unidentified stranger in the yard and
that he spoke about it to Ora (Bud) M. Paul, a
truckdriver and equipment mover in Repondent's employ.
At that time Ora Paul told Maddy that there was union
activity going on and that some of the employees,
including Ora Paul' s brother , Maxwell (Boots) L. Paul,
were passing out cards.
2. The individual conversations
After learning about the union activity at the Ft.
Lauderdale yard, Maddy engaged in wholesale
interrogation of the employees concerning their union
activities . Maddy' s testimony leaves the dates of these
interrogations somewhat in doubt but it is clear that it all
occurred between July 28 and August 5 as that was the
only period of time that Maddy was at the Ft. Lauderdale
yard . Though Maddy' s recollection of the exact date kept
changing , his best recollection was that he spoke to
employee Pirkle and the other employees on August I
which was the date that he allegedly noticed the stranger
in the yard . Maddy admitted that he spoke to 15
employees.' Respondent has approximately 32 employees
at the yard . Maddy testified that he asked each of these
employees whether they had signed a union card . He also
admitted that he asked most of them what they knew
about the Union or whether they had heard anything
about the Union . Maddy spoke to each one individually at
various places in the Ft. Lauderdale yard.
William Crane , Respondent's export manager and also
an admitted supervisor under the Act, testified that he
also engaged in interrogation . He admitted that on August
2, in his office at the yard in the presence of Maxwell
Paul and Maddy , he asked Willie L . Jeter whether Jeter
had signed the union card . Jeter answered that he had.'
Crane also admitted that at the same meeting he asked
Maxwell Paul whether Paul had signed for the Union.'
A number of employees testified that Respondent did
not stop with interrogating them concerning whether they
signed for the Union or what they heard about the Union.
E. Pirkle testified that, in the same , conversation in which
Maddy asked him whether he had signed a card and what
he had heard about the Union , Maddy bragged about
firing employees at the Baton Rouge , Louisiana, yard
because the employees were trying to get the Union in and
that Maddy said he could understand it if it was a
Teamsters or Operating Engineers who were trying to
organize the Ft. Lauderdale yard but he could not
understand the drive by Local 728. Employee J.
McGlamory testified that when Maddy asked him whether
he signed a card Maddy also asked if he went to the union
meeting . Employee J . Mandeville testified that, when
Maddy asked him whether he signed a card or heard
anything about the Union , Maddy also told him that the
ones who stayed out of the Union would be better off and
get better benefits and specifically that he (Mandeville)
would be better off if he didn ' t sign . Employee J.
Callender testified that, in addition to asking him whether
he had signed a card and what he knew about the Union,
Maddy told him not to sign a union card . Employee R.
Cuthbertson testified that Maddy not only asked him
whether he signed a card but told him that , if employees
did not sign cards , they would get uniforms and a pay
raise and that he, Cuthbertson , would be all right as long
as he did not sign a card. Employee L. Ellis testified that,
in addition to Maddy ' s asking him whether he signed a
card , Maddy told him that he would not be sorry if he did
not sign. Employee A . Fusco, Jr., testified that Maddy
called him into his office and asked him what he knew
about the union meeting the other night. When Fusco
equivocated Maddy told him not to lie because he would
find the answer anyway . Maddy asked him whether he
had been at the meeting and Fusco answered that he was.
Maddy asked him if he had signed a card and he
answered that he had . Maddy then said " Well, now you
know what' s liable to happen to you don ' t you?"
Employee J. Baughman testified that , in addition to being
asked whether he had signed a card or knew anything
about the Union, Maddy told him not to let anyone talk
him into signing a card . Employee D. Dasher testified that
Maddy asked him if he knew anything about the Union
and that he answered that he had just heard rumors.
Maddy asked if Dasher had signed and Dasher answered
'E Pirkle, E. Tatum, J McGlamory, J. Mandeville, G. Ashcraft, J.
Callender, R. Cuthbertson, L. Ellis, A. Fusco, D. Dasher, D. Keith, R
Marchman, L. Brown, R. Sorrells, and J. Aldridge.
'Deter was discharged on August 7, allegedly in violation of Sec. 8(aX3)
of the Act
'Maxwell Paul's status as an employee or supervisor is discussed infra.
NAT HARRISON ASSOCIATES 115
that he had not Maddy then told him not to sign because
it could only get him in trouble and that if anyone did
sign that person would be terminated as soon as he could
find out who it was. Employee D. Keith testified that
Maddy asked him whether he had signed He answered
that he had not since he was on that job and Maddy told
him to keep it that way. Employee L Brown testified
that, in addition to being asked whether he signed a card
and what he knew about the Union, Maddy told him not
to sign because these would probably be a skeleton crew
around and they would be in the money. Brown also
testified that about the same time he asked Supervisor
John Flora for a raise and Flora told him that there
would not be any increase as long as people kept running
around signing papers .' Employee Clarence Paul testified
that his conversation with Maddy occurred in the yard
with no one else present . Maddy asked if Paul had signed
a card and said that he would get Paul more money if
Paul did not sign . Clarence Paul answered that he had
signed and that his brother had given him the card.'
Maddy told Clarence Paul to get the card back, and C.
Paul answered that he would if he could but be believed it
had been sent in . Maddy then told him that he could fire
any instigators who passed out the cards and that he could
fire any man who joined the Union. Later in the same day
there was a second conversation in which Maddy told C.
Paul that he (Maddy) could fire anybody in the yard even
if he had to use a safety reason and that if the Union
came into the yard Respondent would close the gates.
Maddy also said that he would fire the instigators if he
could catch them and that he was going to fire any man
who signed a union card . James F . Aldridge, who is also
alleged as a discriminatee under Section 8(a)(3) of the
Act, testified that Maddy asked him whether he signed a
card and he answered that he did. Maddy replied that he
had been associated with the Union and "I can fix any of
those smart boys. I know all about the union, they can't
touch the State of Florida."
Maddy specifically responded to the testimony of each
of the employees set forth above and categorically denied
that he had made any of the statements attributed to him
except to the extent that he asked employees whether they
had signed for the Union and what they knew about the
Union.' I am unable to credit Maddy in regard to these
denials . After observing the demeanor of the employees as
they testified under oath and considering the fact that the
tenor of the testimony of the employees is mutually
corroborative, I credit that testimony . Maddy did not
impress me with his candor and where a conflict in
testimony appears between him and the employees I credit
the employees.'
'Flora admitted telling Brown that the way things looked there wouldn't
be any raises for some time and that Brown answered that he wished he
hadn't signed for the Union. However, the complaint does not allege that
Flora engaged in any activity in violation of Sec. 8(a)(l) of the Act and,
therefore, no finding will be made with regard to this incident
'Clarence Paul credibly testified that in fact Pirkle had given him the
card but that he (C. Paul) told Maddy that it was his brother because he
was trying to protect Pirkle and he knew that Ora Paul had already told
Maddy that Maxwell Paul was involved with the Union.
'Maddy denied having any conversation with J. Baughman.
All the employees who could recall the date of the conversation with
Maddy with accuracy placed the conversation as occurring between August
I and August 5, with the bulk of the conversations on August 1. 1 so find
3. The lunchroom meeting with Maddy
On August 1 Supervisor Maddy was having a
conversation with Ora Paul in the lunchroom at the Ft.
Lauderdale yard when Maxwell Paul entered the room.
Maxwell Paul credibly testified as follows : Maddy asked
what Maxwell Paul knew about the Union's coming in
and Maxwell Paul answered that he didn't know anything
much . Maddy asked Maxwell Paul if he signed a card to
join the Union and Maxwell Paul answered that he did.
Maddy asked if he could get his card back and he
answered that it had already been turned in and he would
not get it back. Maddy then said "Well, I will personally
have your pink slip of termination in the morning."
Maddy asked Maxwell Paul if anyone else signed a card
and Maxwell Paul answered that he didn't know but as
far as he did know everybody had signed . Maddy asked if
Jeter had signed and Maxwell Paul answered that he
didn ' t know . Maddy then said "Well, if he has , I have his
pink slip, too , and anybody - anyone else who has signed a
card ." Maddy asked who the instigator was and Maxwell
Paul answered that he could not tell him. As Maxwell
Paul was leaving the room he saw employee Jim Bowen
come into the lunchroom and heard Maddy ask him if he
had signed a card. Bowen answered that he had. He also
heard Maddy speak to Dasher, the night watchman, and
heard Maddy ask Dasher whether he had signed a card.
Dasher answered that he didn ' t know what Maddy was
talking about and Maddy replied that he had better not
sign.
Maddy recalled the conversation in the lunchroom but
he denied the substance of Maxwell Paul's testimony.
Maddy testified as follows : Maddy was talking to Bud
Paul when Maxwell Paul entered the lunchroom. Maddy
asked Maxwell Paul what he knew about the Union and
then Bud and Maxwell Paul got into a heated discussion
about the merits of unionization . Maddy said that, if
something didn't happen and they didn ' t start getting
work done, he would get a whole handful of pink slips.
Sometime during the conversation Clarence Paul walked
into the room . Maddy specifically denied that he asked
Maxwell Paul whether he had signed a union card and
stated instead that Bud Paul had asked that question. In a
like vein Maddy denied that he questioned Maxwell Paul
about who the instigator was.
Ora Paul's version of the conversation is somewhere
between that of Maxwell Paul and Maddy. Ora Paul
testified as follows : It was Maddy who asked Maxwell
Paul if he signed a union card and Maddy asked Maxwell
Paul who was creating all the disturbance . Maddy said
that the men were slowing down and creating a
disturbance and were getting dissatisfied with their
Employer and he would like to find out who those men
were who were causing the disturbance because he would
give them their pink slips to terminate them. After this
conversation Clarence Paul came into the room.
Employee Dasher testified that he was outside the
lunchroom and overheard part of the conversation and
that he heard something about the Union not doing any
good and causing loss of jobs.
I credit Maxwell Paul ' s testimony with regard to this
conversation . On significant details such the question of
who asked Maxwell Paul whether he had signed a union
card , Maddy and Ora Paul differed in their testimony.
My observation of both Maddy and Ora Paul as they
testified leads me to the conclusion that both are less than
reliable in their testimony . On the other hand Maxwell
Paul was very convincing.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The conversation in Crane's office
As set forth above, Crane admitted that in the presence
of Maxwell Paul and Maddy he asked Willie Jeter and
Maxwell Paul whether they had signed union cards.
Maddy's testimony was substantially the same. Maxwell
Paul credibly testified that more was said in this
conversation, as follows: Before Jeter came into Crane's
office Crane asked Maxwell Paul whether he signed a
union card. Paul answered that he had. Crane asked if he
was the instigator and Paul answered that he was not.
Crane then asked if Jeter had signed a card or if Bowen,
Jack Carr, or'Jim Aldridge had signed. Paul answered
that he didn't know. Crane then asked Paul to go out and
get Bill Jeter. Paul went into the yard and returned with
Jeter. Crane interrogated Jeter asking why he didn't come
to the Company first. At that point Maddy said that the
same thing had happened before and they had gotten rid
of the instigators and they could do it again.
Willie Jeter in his testimony concerning this
conversation did not remember Maddy's remark about
getting rid of instigators but he did testify that Maddy
asked him whether he signed a card and he answered he
had, that he was asked who else joined and he answered
he did not know, and that Maddy said that that was all
right because he, Maddy, would find out who they were.
I credit Maxwell Paul's version of this conversation.
The testimony of both Crane and Maddy where it differed
from Maxwell Paul's was unconvincing. My observation
of Jeter leads me to the conclusion that he was an honest
witness telling all that he recalled but that Maxwell Paul
had a fresher recollection of exactly what happened at the
meeting.
5. The employee status of Maxwell Paul
Maxwell Paul testified as follows: He was hired in 1962
and worked until August 7 when he was discharged.'
Some time prior to his discharge he worked in the
overseas shipping and receiving department where he
received, crated, and shipped materials for overseas jobs.
While he spent 10 to 20 percent of his time ordering parts,
his work consisted primarily of manual labor. He was a
leadman in a four-man department. He sometimes showed
new men how to crate materials but he worked with the
other men doing the same jobs. Bill Crane who was his
supervisor never told him that he (Paul) was a supervisor.
He was hourly rated at $2.50 an hour, punched a
timeclock, and had no special privileges. Though he
relayed messages and orders from Crane, he never
attended supervisory meetings. He never hired, fired, or
recommended the hire or fire of any employee, had no
authority to grant time off on his own, and never
reprimanded or disciplined any employee. With regard to
the granting of time off, he would ask Crane and relay
Crane's decision. On occasions Crane would ask him how
a new man was doing. With regard to the ordering of
parts, he was given the orders which were already written
up and okayed. Crane decided what overtime work was
needed and named who was to work.
Supervisor William Crane testified as follows: New
employees were told to report to Maxwell Paul and Paul
would tell them what to do. Four or five employees
generally worked in Paul's department and at times there
were extras so that there were eight or nine employees in
'The complaint does not allege that Maxwell Paul was discharged in
violation of the Act and therefore that question was not litigated.
all. A normal procedure was for Crane to give the
shipping schedules to Paul and tell him to get the
materials crated. Paul handled the entire shipment from
purchases through final recordings. Paul picked men for
overtime work at his discretion. In January, while Crane
was away from the yard, Paul handled Crane's affairs. In
December 1967, after Crane had been sick for 5 days, he
came back and found things in good order. Paul
interviewed employees and recommended their hire. One
of these employees was Urbano Matos who was
interviewed and hired in July. Another employee
interviewed by Paul was hired by Flora. Paul
recommended the discharge of employee Rip Miller in or
about December 1967 and the recommendation was
followed." Paul got 40 cents an hour more than the next
highest paid employee in his department.
Where a conflict in testimony exists between Maxwell
Paul and Crane, I credit Paul. Based on this credited
evidence, I find that Maxwell Paul was not vested with the
type of independent discretion in the performance of his
duties with relation to other employees so as to warrant
the finding that he was a supervisor. Though he was
clearly a key man as well as a strawboss, he did not have
the authority, with the use of independent judgment, to
hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward , or discipline employees, or responsibly
direct them or adjust their grievances, or effectively
recommend such action. I find, therefore, that Maxwell
Paul was not a supervisor within the meaning of Section
2(11) of the Act.
6. Conclusions as to the alleged violations of Section
8(a)(1)
Based on the credited testimony set forth above, I find
that Respondent violated Section 8(a)(1) of the Act by the
activities of its supervisor, Maddy, who between August 1
and 5:
(1) Interrogated 20 of the approximately 32 employees
at the Ft. Lauderdale yard concerning whether they signed
a card for the Union, interrogated most of those 20
employees concerning what they knew about the Union,
and interrogated employees McGlamory and Fusco about
the union meeting.
(2) Implied that employees would be discharged if they
joined the Union by telling employee E. Pirkle that
Respondent had discharged employees for union activity
in Louisiana, and by telling employee Fusco that he knew
what was liable to happen to him if he signed.
(3) Directly threatened to discharge employees because
of their union activities in statements to employees
Dasher, Clarence Paul, and Maxwell Paul.
(4) Promised benefits to employees for not joining the
Union as expressed to employees Mandeville,
Cuthbertson, and Brown.
(5) Threatened to close the plant if the Union came in
as expressed to Clarence Paul.
(6) Instructed employees Callender, Baughman, Keith,
and Dasher not to sign union cards.
In addition I find that Respondent violated Section
8(a)(1) of the Act by the activities of its Supervisor Crane
"Maxwell Paul specifically denied that he had recommended the
discharge of Miller and testified that he had an argument with Miller as a
coemployee because he , Paul, didn ' t think that Miller was holding up his
end of the work and that Miller walked off the job and didn't return, but
that he never recommended that Miller be discharged.
NAT HARRISON ASSOCIATES
who on August 2 interrogated Maxwell Paul and Willie
Jeter concerning whether they signed cards for the Union.
B. The Discharge of James F. Aldridge
1. The facts
James F. Aldridge worked for Respondent as an engine
rebuilder and automotive machinist from January 2, 1967,
to August 5, 1968, when he was discharged. On Friday,
August 2, in the engineroom at the Ft. Lauderdale yard
Aldridge had a conversation with Supervisor Maddy.
Maddy asked him if he had signed a card for the Union,
and he answered that he had." Maddy asked why he
signed and Aldridge answered that the cost of living was
going up but that the wages didn ' t. Maddy told him that
that was not the way to do it, that he (Maddy) had been
associated with the Union and "I can fix any of those
smart boys . I know all about the union , and they can't
touch the State of Florida." About 5 o'clock the following
Monday, August 5, Supervisor Flora summarily
discharged Aldridge and told him to turn in his keys and
get his tools out. When Aldridge asked what he had done
wrong , Flora answered that there was a warped camshaft
in the Reo motor that Aldridge had worked on.
The decision to discharge Aldridge was made solely by
Supervisor Maddy . During the time that Maddy was
filling in for Flora at the Ft. Lauderdale yard, two engines
which had been rebuilt by Aldridge were put on the test
stand and did not perform properly. One was a Reo
engine which had a warped camshaft that had to be
replaced . The other was a Waukesha engine which also
needed some additional work . Both motors were delayed
in shipment because of the needed repairs. Maddy testified
that he thought Aldridge had fouled up both engines and
as a result , when Flora returned to the yard, Maddy told
him that something would have to be done about the
situation or somebody else would be doing Flora's job.
Flora confirms the fact that it was solely Maddy's
decision to discharge Aldridge by testifying that, when he
returned to the yard on August 5, Maddy told him that
Aldridge had messed up some engines and that he, Flora,
had either to let Aldridge go or that he, Flora, would be
let go.'=
As noted above, Aldridge worked for Respondent for
over a year and a half. He was hired at $2 . 50 an hour and
during his period of employment he received three
10-cent-per-hour raises , the last about June 15. While
employed he rebuilt approximately 80 engines . During the
entire period of his employment no one from Respondent
ever complained to Aldridge about his work. About June
Flora did mention to Maddy that he had received a phone
call from Louisiana and was told that a couple of Reo
engines had the rods in backwards. However, Aldridge
"Maddy admitted that he asked Aldridge whether he signed a card but
denies that Aldridge answered in the affirmative . Instead Maddy testified
that Aldridge told him that he had not signed but that he thought it might
be a good idea. Maddy denies that there was any further conversation. I
credit Aldridge.
"It is apparent from the testimony of both Flora and Maddy that Flora
had nothing to do with the decision to terminate Aldridge. It follows that
Flora's testimony about his father-son type of conversations with Aldridge
about Aldridge 's drinking , about Aldridge being inefficient in the ordering
of parts, and about his feeling that they were going to have to do
something with Aldridge was irrelevant with regard to the reason for
Aldridge ' s discharge Even if this were not the case Flora admits that he
knew when Aldridge was hired that he drank and he never told Aldridge
that he had to stop drinking . He never reprimanded Aldridge with regard
to the ordering of parts or with regard to his work generally
117
answered that in that particular model engine the rods did
go in in an opposite direction from most engines and he
then took some oil pans off similar engines to show Flora
that they did go in the way he said. Nothing else was said
of this incident. No supervisor ever made any comment to
Aldridge about any other motor or engine that he worked
on. With regard to the two engines that didn't properly
work on the test stand shortly before his discharge,
Aldridge credibly testified as follows: In putting in the
camshaft when the engine was rebuilt he checked it as best
he could with the equipment available. However, it didn't
appear until the motor was tested on the test stand that
the camshaft was warped. He then replaced the camshaft.
He never had a similar problem in the yard. With the
Waukesha engine that wasn't working properly on the test
stand, he took out the camshaft and replaced it with
another camshaft but found that there was nothing wrong
with the original camshaft and that there was a vacuum
leak instead.
2. Conclusions as to the discharge of Aldridge
Aldridge engaged in an activity that is protected under
Section 7 of the Act when he signed the union card.
Respondent obtained knowledge of this protected activity
when it unlawfully interrogated Aldridge on Friday,
August 2. Aldridge was discharged on Monday, August 5.
The facts found in section A, above, establish that
Respondent bore a virulent animosity toward the Union
as shown by the commission of many violations of Section
8(a)(1) of the Act. Included in these violations was the
direct threat to employees that they would be discharged
if they engaged in union activity."
The General Counsel has established a prima facie case
against which the Respondent 's defense must be evaluated.
Supervisor Maddy does not contend that he considered
anything other than the allegedly poor work by Aldridge
on two particular engines before coming to the decision to
discharge Aldridge. As Maddy's decision was a sole and
final one with regard to the discharge, any doubts Flora
may have had as to the caliber of Aldridge's work, which
doubts were buried in the bottom of Flora ' s mind and
unexpressed to either Maddy or Aldridge, have no bearing
on the instant case. The mere fact that Maddy gave an
ultimatum to Flora in directing Flora either to fire
Aldridge or be fired himself indicates that Aldridge's
discharge was not based on run-of-the -mill business
considerations as Respondent contends . Aldridge had
worked for over a year and a half and during that time
Respondent considered that work to be of sufficient worth
to warrant three increases in pay . During the entire time
he was never reprimanded for poor work. Maddy, who
had very little contact with Aldridge's work, as he was
just filling in for Flora for a limited time, never bothered
to even ask Flora what kind of worker Aldridge was but
instead on the basis of an extremely limited observation
summarily decided to discharge him.
I find that Respondent's alleged reason for discharging
Aldridge was a transparent pretext to shield the real
"Of the 20 employees that Respondent unlawfully interrogated
concerning the signing of union cards , 14 answered that they had not
signed cards and 6 answered that they had. The six who had admitted
signing cards were Fusco, Clarence Paul, Maxwell Paul, Jim Bowen, J.
Aldridge , and Jeter. The two alleged discrimmatees , J Aldridge and Jeter,
were both among the group of six that had indicated they had signed
cards. Maxwell Paul was also discharged about this time but as he is not
alleged as a discriminatee in the complaint no inference will be drawn from
his termination.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason, which was Aldridge's protected activity in signing
a union card. I therefore find that Aldridge was
discharged in violation of Section 8(a)(3) and (1) of the
Act.
C. The Discharge of Willie L. Jeter
Facts
Willie L. Jeter worked for Respondent from his date of
hire in the latter part of 1961 until his discharge on
August 7. He worked in the freight and shipping
department at the Ft. Lauderdale yard where he received,
packed, crated, and hauled freight. Though he was not a
regular driver in the freight department, he did make
three or four local trips a week as well as an average of
one out-of-State trip a month.
On July 31 he signed a union card. As is more fully set
out in the section above entitled "The conversation in
Crane's office," Respondent learned that Jeter had signed
a card for the Union after unlawfully interrogating him.
August 2 was on a Friday. The following Wednesday,
August 7, Supervisor Crane called Jeter into his office in
the middle of the day, paid him till the end of the day,
and summarily discharged him, telling him that he hated
to do it but that it was out of his hands. Crane told Jeter
that he was being let go because he did not operate the
forklift and because the day before he had left at 4:30
without saying anything to Crane."
Respondent contends that Jeter was discharged because
he was unable to complete reports on over-the-road trips
by himself, he left work at 4:30 p.m. on August 6 without
checking with Crane, and he was unable to drive a forklift
truck.
Jeter was in Respondent's employ approximately 7
years. He was hired at $1.50 an hour and during his
employment he received increases raising his pay to $2.10
an hour. The last wage increase was 10 cents an hour in
or about May. Neither Crane nor any other supervisor
had ever complained to him about his work. Crane
admitted that Jeter was able to do the work with regard
to the physical driving of the truck.
Respondent contends that Jeter's inability to fill out the
forms relating to over-the-road truckdriving became a
problem on August 6 because Maxwell Paul who had
previously helped Jeter in filling out the forms was
discharged on that date. However, Jeter's testimony that
Maxwell Paul helped him prepare the documents simply
because it was quicker for the two of them to do it was
never questioned by Respondent and no one ever told
Jeter that he should make out the forms by himself. As
the forms only had to be made out for out-of-State trips
and Jeter only took about one such trip a month, the
completion of the forms must have been a very minor part
of his duties.
Respondent contends that Jeter's leaving work at 4:30
on August 6 was a serious matter because Maxwell Paul
was absent and as second senior man Jeter knew that,
when Maxwell Paul was not there, he was in charge.
However, Crane admits that he never told Jeter that he
(Jeter) was going to be boss. As 4:30 p.m. was the normal
quitting time, no one told Jeter that he was supposed to
work overtime, he was never told to check with Crane
"Crane testified that the reason he gave Jeter for the discharge was that
Jeter could not make out the fuel reports and that he failed to report
before leaving the yard on August 6. Crane also testified that he might
have said something about Jeter' s not driving the forklift I credit Jeter.
before punching out, and he was never told that he was in
charge of the other employees, this defense cannot be
taken seriously.
The third item raised by Respondent is that Jeter did
not drive the forklift. However, about a year and a half
before the discharge, Crane told Jeter to let the younger
men drive the forklift and Jeter hadn't operated it since. It
is difficult to see why this duty which was apparently a
matter of minor concern for a year and a half before the
discharge became suddenly important as a reason for
discharging Jeter.
The General Counsel has established a prima facie case
by evidence that Jeter engaged in protected activity within
the meaning of Section 7 of the Act in the signing of a
card, that Respondent gained knowledge of this activity
through its unlawful interrogation on August 2, that
Respondent demonstrated its virulent animosity toward
the Union by engaging in the severe pattern of 8(a)(1)
conduct described above in section A which included the
threat to discharge employees who joined the Union and
the specific threat to fire Jeter if he signed for the Union,
and that Respondent discharged Jeter on August 7, just 5
days after it learned of Jeter's protected activity.
Respondent's asserted reasons for discharging Jeter are so
patently frivolous that I can only conclude that they are a
pretext to disguise the real reason for Jeter's discharge,
namely his protected activity in signing a union card. I
therefore find that Jeter was discharged in violation of
Section 8(a)(3) and (1) of the Act.
D. The Alleged Violations of Section 8(a)(5) of the
Act
1. The facts
a. The appropriate unit
The complaint, as amended, alleges and the answer, as
amended admits that:
All employees employed by the Respondent at its
Broward County equipment yard," excluding office
clerical employees, guards, professional employees and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of the Act.
b. The Union's demand for recognition
On August 2 W. L. Henderson, the Union's business
manager, sent a letter to Dan Stoneberger, Respondent's
vice president and a supervisor within the meaning of the
Act, which read as follows:
This is to inform you that we now represent a majority
of your Equipment Mechanic employees in this
jurisdiction, namely Broward County.
We would like recognition as their collective bargaining
agent and will be happy to discuss this with you at your
earliest convenience.
On August 5 Stoneberger called Henderson's office and
in Henderson's absence spoke to Frank E. Harper, the
Union's assistant business manager. Stoneberger asked
Harper if he had ever heard of the IBEW representing
Respondent's kind of employees. When Harper started
answering, Stoneberger told him not to bother because he
would talk to Henderson. The following day, August 6,
"Referred to herein as the Ft . Lauderdale yard
NAT HARRISON ASSOCIATES
Stoneberger called again and did speak to Henderson.
Stoneberger said that he received the letter but that he
didn ' t think that the IBEW could represent his employees.
Stoneberger also said that he didn ' t think that the Union
represented a majority of employees at the Ft . Lauderdale
yard. Henderson replied that the Union could represent
the employees and that they did represent a majority.
On the same date , August 6 , Henderson wrote a second
letter to Stoneberger as follows:
We have been advised that on August 5, 1968 you
discharged two (2 ) employees because of their
membership or activities in behalf of this Labor Union.
Be advised that we shall seek relief for this
discriminatory practice by filing a charge with the
National Labor Relations Board , unless these
employees are immediately reinstated with back pay.
In my letter to you of August 2nd I specifically advised
you that we represent a majority of your employees
performing repair work on equipment and are employed
by you as Equipment Mechanics . I can only assume by
your discharge of James Aldridge and Jack Carr that
you are refusing to recognize and negotiate with us. If
we are mistaken , that is, if you are willing to recognize
our majority representative capacity , please advise us of
that fact immediately and we can arrange to prove that
we represent the majority of your employees by any fair
and impartial means . We are anxious to commence
negotiations covering wages , hours and conditions of
employment for the employees we represent, and
therefore we request that you take prompt action to
accept us as the collective bargaining agent for the
employees in the Unit described above.
I shall await your response.
On August 9 Stoneberger wrote to Henderson as
follows:
Thank you for your letter of August 2, 1968 and
August 6, 1968.
Please be advised that we sincerely doubt that you
represent a majority of our employees at our Broward
County equipment yard , and therefore , do not recognize
you as their bargaining representative at this time.
Accordingly we respectfully invite you to use such
proceedures [sic] as are available to you under
applicable Federal law.
On September 30 Henderson sent the following
telegram to Stoneberger:
PLEASE REEI R TO MY L I TTERS OF AUGUST 2 AND 6. IN
FLTHER CLARIIICATION Of THE SNIT OF YOUR EMPLOYEES
WHICH WE CONTEND WE REPRESENT . BI ADVISED THAT WE
REPRESENT A MAJORITY OF YOUR EMPLOYFES AT YOUR
119
BROWARD COUNTY EQUIPMENT YARD. WE DEMAND
RECOGNITION AND ASK FOR IMMEDIATE NEGOTIATIONS AND
WE ARE WILLING TO PROVE OUR REPRESENTIVE CAPACITY
BY A CROSS CHECK OF OUR AUTHORITY CARDS OR ANY OTHER
FAIR AND IMPARTIAL MEANS OF PROVING OUR MAJORITY
STATUS. PLEASF ADVISE.
c. The number of employees in the bargaining unit
and the Union's majority
As noted above, the Union demanded recognition by
letter dated August 2 and Respondent through
Stoneberger responded to their demand in a telephone
conversation to Henderson on August 6. In that
conversation Stoneberger questioned the propriety of an
IBEW local representing Respondent's employees and the
Union's majority status, and in doing so he, in effect, on
that date refused the Union's demand to bargain. As this
refusal to bargain first occurred on August 6, the Union's
majority status on that date must be considered.
General Counsel's Exhibit 2(b) is a list of 30 employees.
It was stipulated that these 30 were all employees in the
appropriate unit on August 6. It was further stipulated
that the parties could introduce additional evidence
concerning employees who should or should not be on the
list. Evidence was so introduced with respect to four
individuals: Maxwell Paul, Billy Harris, O. Natali, and
W. Jeter. As I have found that W. Jeter was discharged in
violation of Section 8(a)(3) of the Act and will therefore
be entitled to full reinstatement, his name must be added
to the list. As I have found that Maxwell Paul, for the
reason set forth in detail above, was an employee and not
a supervisor within the meaning of the Act, his name
should also be included because he was still employed for
at least part of the day on August 6.16 The General
Counsel contends that Billy Harris and O. Natali should
also be included on the list. Harris and Natali both
testified that they are field mechanics who receive no
supervision from the Ft. Lauderdale yard and whose job is
to maintain equipment while it is in the field. It is clear
from their testimony that any connection they have with
the Ft. Lauderdale yard is a casual one and that they are
not employed at the Ft. Lauderdale yard so as to be
included within the appropriate unit. They therefore
cannot be added to the list.
I find that the total employee compliment in the
appropriate unit on August 6 was 32 employees. Of these
32 employees 20 signed cards for the Union. The cards
were all dated between July 18 and August 1, were all
properly authenticated, and were admitted in evidence."
At the time the August 2 demand for recognition was
written the Union had all 20 cards in its possession.
"Paul testified that he worked until about August 7 . Crane testified that Paul had been terminated on August 6
.1
EMPLOYEE DATE CARD CLASSIFICATION
SIGNED
I Wilson, F. July 31 Machinist
2. Marchman , R July 19 Mechanic
3. Callender, J. July 18 Mechanic
4 Pirkle, E. July 18 Mechanic
5 Ellis, L July 29 Mechanic
120 DECISIONS OF N'\TIONAL LABOR RELATIONS BOARD
The union cards which the 20 employees signed were
entitled "Application for Membership in International
Brotherhood of Electrical Workers (AFL-CIO &
CLC)." The part of the card that was signed by the
employees read:
I, ... .. in the presence of members of the
International Brotherhood of Electrical Workers,
promise and agree to conform to and abide by the
Constitution and laws of the I . B.E.W. and its Local
Unions. I will further the purposes for which the
I.B.E.W . is instituted . I will bear true allegiance to it
and will not sacrifice its interest in any manner.
2. The Respondent' s defenses
In substance Respondent contends that no violation of
Section 8(a)(5) should be found because:
a. The Union' s demands for recognition dated August 2
and August 6 related solely to a unit of equipment
mechanics and that such a unit differed so substantially
from the stipulated appropriate unit that no obligation on
the Respondent' s part could arise to bargain in the
appropriate unit.
b. The employees who signed cards for the Union were
merely applying for membership in the Union and were
not authorizing the Union to represent them for the
purpose of collective bargaining. Therefore, the Union was
never authorized to represent the employees in the
bargaining unit.
c. The Union would not fairly represent two employees
whose national origin was Cuban and one negro employee
in the bargaining unit.
d. Respondent had a good-faith doubt that the Union
represented a majority of the employees in the bargaining
unit."
3. The facts with regard to the fair representation
issue
With regard to the Respondent' s allegations concerning
the Union 's discrimination in membership policy, the facts
are as follows:
Joseph Butler is the only negro employed by
Respondent at the Ft. Lauderdale yard. Though he was
employed since September 1967, he was unaware that the
employees were joining the Union and no one ever asked
him to apply for membership . Butler is a parts pickup
6 Keith, D July 30 Mechanic
7 Brown , L July 20 Mechanic
8 Fusco, T July 22 Mechanic
9 Mandeville , J July 29 Mechanic
10. Pirkle . T July 19 Mechanic Helper
11 Tatum, E. July 24 Welder
12 Ashcraft, G. July 29 Welder
13 Sorrells, R July 29 Welder
14 Paul , C Aug. I Painter
15. Dominguez, E. Painter
16 Hernandez, R Painter
17 Jeter, W July 31 Warehouse Man
18 Andrus, E Warehouse Man
19. Matos, V Warehouse Man
20. Dominguez, H Laborer
21 Forte, P. Laborer
22 Robledo, A Laborer
23 McGlamory, J July 31 Truck Driver
24. Romich, C Truck Driver
25. Paul, 0 Truck Driver
26 Gessner, B. Clerk Parts Purchasing
27. Butler, J Parts Pickup Man
28. Baughman, J. Aug. I Parts Storekeeper
29. Cuthbertson, R July 31 Lubeman
30 Bowen, J. Messenger
31 Aldridge, A July 22 Engine Rebuilder
32 Paul, M July 31 Warehouse Man
On the list "Wilson" has the initial "F ", while the card is signed
"Wiley F Wilson." The list also shows "T Fusco" while the card is
signed "Anthony Fusco, Jr." As both card signers credibly testified that
they were employees during the time period that included August 6, 1
conclude that they are the "Wilson" and "Fusco" named in the list
"As to the Respondent's good-faith doubt that the Union represented a
majority of its employees, Respondent in its brief states that the doubt was
based on the fact that only three employees and one supervisor had
admitted signing a card, that one employee had been coerced because he
refused to sign , and because a supervisor (Maxwell Paul) had purportedly
been soliciting for the Union.
Ora Paul testified that employees Cuthbertson and McGlamory told him
that he would have to join the Union or get out. He also testified that
employee Marchman made the same threat . Cuthbertson, McGlamory,
and Marchman all denied that they told Ora Paul he would have to leave
the job if he didn't join the Union . I credit the three denials.
For the reasons set forth above I have found that Maxwell Paul was not
a supervisor within the meaning of the Act . Even if he were , the record
does not establish that he solicited the employees, upon whom the Union's
majority status rests , to join the Union.
NAT HARRISON ASSOCIATES
man and therefore is in the bargaining unit. W. L.
Henderson , the Union ' s business manager , testified
without contradiction that he was unaware that any Negro
was employed at the Ft. Lauderdale yard, that at the
present time the Union has no Negro member , and that
the Union has had negro members in the past and is now
processing one Negro for membership . He further testified
that the Union does not discriminate against any minority
group on the basis of race , creed , national origin , or color.
Two employees of Cuban origin, Eneldo Dominguez
and Pedro Alberto, did sign union cards. These cards were
dated July 29 and August l respectively. Employee Elbert
Pirkle took these cards together with the $ 10 initiation fee
for each employee and kept them in his truck until
December 9. Pirkle testified that he intended to give the
cards to the Union when they were given to him but that
he spoke to employee Clarence Paul who told him to hang
on to the cards until things cooled off because they did
not want to get Dominguez and Alberto fired . Pirkle
further testified that he forgot he had them in his truck
until Thursday , December 5 (during the course of this
trial). Union Business Manager Henderson testified that
he heard for the first time about the cards of Dominguez
and Alberto during the trial on December 5 and he called
Pirkle that evening . Henderson asked Pirkle for the cards
and took them on December 9. Henderson testified that
the cards would be processed.
I find Pirkle ' s allegation that he kept possession of the
Dominguez and Alberto cards to protect those employees
and later because he forgot about them simply incredible.
However , I do credit Henderson ' s assertion that he found
out about those cards during the trial and then took
possession of them . There is no evidence in the record,
other than set forth above , to be evaluated in determining
whether in fact the Union does discriminate because of
color or national origin."
4. Analysis as to the alleged violation of Section
8(a)(5)
a. The fair representation issue
It can well be argued that a labor organization whose
membership policies invidiously discriminate against
employees on the basis of race or national origin
inherently is incapable of fairly representing such
employees . It can further be argued that such inability to
fairly represent should be a defense against an 8(a)(5)
allegation where members of the discriminated against
group are part of the bargaining unit . Cf. United
Packinghouse , Food and Allied Workers International
Union , AFL-CIO v. N.L.R. B., 416 F . 2d 1126 (C.A.D.C.).
However , a legal analysis of these propositions would only
be warranted in a case where the evidence on the record
establishes that the Union does so discriminate.
I have found that the reasons given by Pirkle for his
retaining the union cards of Dominguez and Alberto were
not credible . In the absence of any other explanation I
believe that a fair inference can be made that Pirkle held
the cards because of the national origin of those two
employees . From the evidence on the record it is more
"In fn 7 of its brief Respondent suggests that it was not allowed to fully
explore this issue . During the trial Respondent offered to prove that if Ora
Paul were permitted to testify he would testify that several employees told
him that they did not approach Joe Butler because they didn't want him in
the Union. I ruled that such testimony would be hearsay unless
Respondent made and supported the contention that the employees were
acting as agents of the Union No such contention was made
121
difficult to infer that Joseph Butler was not asked to sign
a union card because he was Negro . However , even if
such an inference can be made , it must be noted that all
of the solicitation of cards at the Ft. Lauderdale yard
were made by employees. The Union did not seek out
Pirkle and designate him as its agent in the solicitation of
cards. Rather, Pirkle who Respondent in its brief
describes as "the self-appointed employee organizer"
received cards from an employee in another shop and
other cards from the Union. He distributed some and gave
some to other employees to distribute. There is absolutely
no evidence in the record that the Union had knowledge
that there was any discrimination based on race or
national origin prior to the date of the trial. Shortly after
becoming aware of the problem the Union took possession
of the cards signed by Dominguez and Alberto and
Henderson has testified they will be processed . In no sense
can it be said that the Union ratified the conduct of the
employees who solicited cards. I therefore find that the
failure to solicit a card from Butler and the withholding of
the cards of Dominguez and Alberto can not be attributed
to any membership policy of the Union. The admission by
Business Manager Henderson that at the present time
there are no Negro members in the Union indeed raises a
suspicion . However , standing alone it does not prove that
the Union had discriminatory membership policies,
particularly where Negroes have been members in the past
and the application of a Negro is now pending. As the
evidence does not establish that the Union's membership
policies discriminate on the grounds of race or national
origin a legal analysis of the propositions of law
mentioned above is not in order.
b. The unit and the demand
The appropriate unit as stipulated to at the hearing
consists of all Respondent's employees at the Ft.
Lauderdale yard with the usual exclusions (office clericals,
guards, professionals and supervisors). Of the 32
employees in this unit on August 6, 8 were mechanics, 1 a
mechanics' helper , I an engine rebuilder, 1 a machinist,
and the balance welders, painters, warehousemen,
laborers, truckdrivers, and other nonmechanics. The
Union's demand for recognition dated August 2 states
that the Union represents a majority of equipment
mechanics . The letter of August 6 states that the Union
represents a majority of employees performing repair
work on equipment and who are employed as equipment
mechanics . Not until the September 30 telegram did the
Union specifically tell Respondent that the Union sought
representation in an all-employee unit.
The question presented is whether the Union's demand
of August 2 sufficiently identified the unit in which
bargaining was sought to provide a foundation for a
finding that Respondent refused to bargain in an
all-employee unit . In determining whether the parties
understood that an "all employee" unit was the subject
matter of the Union's demand, the wording of the demand
in itself is important . However, all the surrounding
circumstances must be ce.isidered, as no magic words are
needed in this field of law. Benson Wholesale Company,
Inc., 164 NLRB No. 75. The important question is
whether the Employer knows he is being asked to bargain
with the Union as a representative of a certain group of
employees. The Union's August 2 letter did mention
equipment mechanics. However, Respondent, through its
unlawful interrogation, did ascertain that a mechanic, a
painter , two warehousemen, a messenger , and an engine
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rebuilder had signed cards for the Union 2° On August 6
when Respondent's vice president , Stoneberger , called
Union Business Manager Henderson , Stoneberger said
that he doubted that the Union represented a majority of
the employees at the Ft . Lauderdale yard . Henderson
replied that he did represent the majority . There was no
mention of mechanics as such and both the Union and
Respondent appeared to have an all-employee unit in
mind . Certainly Respondent did not question the size of
the unit nor indicate that it thought the Union was
seeking a mechanics only unit . Respondent's stated
reasons for not recognizing the Union were that
Respondent did not think the IBEW could represent its
employees and that Respondent doubted that the Union
represented a majority of employees at the Ft. Lauderdale
yard. The refusal was not based on the scope of the
Union ' s demand . In its followup demand of August 6 the
Union ' s letter also contained the phrase "equipment
mechanics." However , in its reply of August 9
Respondent wrote that it doubted the Union represented a
majority of
"our employees at our Broward County equipment
yard" and therefore refused to bargain . The language of
Respondent ' s August 9 letter makes it clear that
Respondent was interpreting the Union ' s demand as one
which encompassed an all-employee unit . As Respondent
understood the Union ' s demand to be in an all-employee
unit and as Respondent made no objection to the narrow
language of the Union's letter of August 2 and did not
base its refusal to bargain on such language , I find that
the Union did make a proper demand for bargaining in
the appropriate unit.
c. Majority status
On August 6, the date of Respondent' s refusal to
bargain with the Union , 20 out of the 32 employees in the
bargaining unit had signed cards for the Union. These
cards were not the ordinary authorization cards but were
applications for membership in the Union . The Board,
with court approval , has long held that signing of an
application for membership in a labor organization in
itself authorizes that labor organization to bargain for the
card signer . Blade-Tribune Publishing Company, 161
NLRB 1512 ; Delaware-New Jersey Ferry Company, 30
NLRB 820, enfd . in pert . part 128 F.2d 130 (C.A. 3);
N.L.R. B . v. Somerset Shoe Company , 111 F.2d 681 (C.A.
1). I find that on August 6 the Union was authorized by a
majority of the employees in the appropriate bargaining
unit to represent them in collective bargaining with
Respondent.
d. The alleged goodfaith doubt
The criteria for determining whether an employer is
acting in good or bad faith in questioning the Union's
majority is set forth in Hammond & Irving, Incorporated,
154 NLRB 1071, where the Board held:
The Board has long held that an employer may insist
upon a Board election as proof of a union 's majority if
it has a reasonable basis for a bona fide doubt as to the
union ' s representative status in an appropriate unit. If,
however , the employer has no such good-faith doubt,
but refuses to bargain with the majority representative
"Fusco, C Paul , M Paul , Jeter, Bowen , and Aldridge. In addition Ora
Paul, a truckdriver , told Respondent that he had been solicited to join the
Union
of its employees because it rejects the
collective-bargaining principle or desires to gain time
within which to undermine the union and dissipate its
majority, such conduct constitutes a violation of
Section 8(a)(5) of the Act. (Joy Silk Mills, Inc., 85
NLRB 1263, enfd. as modified on other grounds 185
F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.) In
determining whether the employer's action was taken to
achieve either of the said invalid purposes, the Board
considers all the surrounding circumstances as well as
direct evidence of motivation. Absent such direct
evidence, where extensive violations of the Act
accompany the refusal to grant recognition, they
evidence the employer's unlawful motive and an
inference of bad faith is justified.
In applying these criteria the Board has held that the
commission of narrow violations of Section 8(a)(1) of the
Act do not necessarily indicate a rejection of the
collective-bargaining principle. Fashion Fair, Inc., 173
NLRB No. 28; Grafton Boat Co., Inc., 173 NLRB No.
150; J. C. Penney Company, Inc., 172 NLRB No. 82.
However, the Board has consistently held that substantial
violations of Section 8(a)(1) and (3) of the Act do warrant
a conclusion that an employer does not have good faith in
questioning a union's majority status. In the instant case
Respondent engaged in extensive violations including
wholesale unlawful interrogation, threats to discharge
employees because of their union activities, promises of
benefits to employees to refrain from union activity, and
the discharge of two employees because they joined the
Union. This conduct on the part of the Respondent
evidenced its complete rejection of the
collective-bargaining principle rather than any good-faith
doubt that the Union had a majority. Respondent may
not destroy the very conditions needed for a fair election
and at the same time successfully maintain that an
election is the sole means for determining the desires of
the employees. Respondent's unlawful coercive conduct
began on August 1 immediately after it learned that its
employees were engaging in union activities and
culminated with the discharge of Jeter on August 7, the
day after it notified the Union that it would not bargain.
The Respondent's conduct both before and after the
demand for recognition is part of the same pattern which
clearly establishes Respondent's rejection of the
collective-bargaining principle. Gibson Products Company
of Washington Parish, La., Inc., 172 NLRB No. 243.
Such conduct violates Section 8(a)(5) of the Act. Jerome
T. Kane d/b/a Kane Bag Supply Company, 173 NLRB
No. 180; Rish Equipment Company, 173 NLRB No. 136;
Bauman Chevrolet, Inc., 173 NLRB No. 78; Heck's Inc.,
172 NLRB No. 255; Beaver Bros. Baking Co., Inc. d/b/a
American Beauty Baking Co., 171 NLRB No. 98.21
Violations of the Act both before and after a demand for
recognition may show bad faith. San Angelo Packing
Company, 163 NLRB No. 118; Boot-Ster Manufacturing
Company, Inc., 149 NLRB 933, enfd. 361 F.2d 325 (C.A.
6).
"In reaching this conclusion I am not relying on the testimony of
employee Dasher who testifies that Maddy admitted to him that the Union
had 51 percent of the employees . Though Dasher was honestly trying to
recall the entire incident , he was obviously confused as to whether Maddy
said that the Union claimed to represent the employees or whether Maddy
said the Union did represent the employees In addition he was very
uncertain as to when the conversation occurred. Under these circumstances
I do not believe that Dasher 's testimony in this regard has probative
weight.
NAT HARRISON ASSOCIATES
Respondent's attitude toward collective bargaining was
well summed up in Supervisor Maddy's remark to
employee Aldridge: "I can fix any of those smart boys. I
know all about the union, they can't touch the State of
Florida."
I therefore find that Respondent on August 6 did not
have a good-faith doubt that the Union represented a
majority of employees in the appropriate unit.
e. Conclusion as to the 8(a)(5) allegation
Having found that the Union made a demand for
recognition in an appropriate unit, that the Union was
authorized by a majority of the employees in said unit to
represent them, that the Respondent refused to bargain
with the Union, and that the Respondent did not have a
good-faith doubt that the Union represented the majority
of the employees in the unit but instead sought by
unlawful means to undermine the Union, I find that the
Respondent violated Section 8(a)(5) and (1) of the Act.
f. The unilateral change facts and conclusion
For several years the regular hours of employment at
the Ft. Lauderdale yard were from 7 a . m. to 4:30 p.m. on
weekdays and 7 a .m. to 12 noon on Saturdays. The
number of hours worked per week varied from time to
time depending on the workload but the usual workweek
was as stated . On December 2 Respondent posted a notice
on its bulletin board stating that the workday on
December 2 would be 7 a.m. to 3 : 30 p.m. and that on
December 3 and thereafter it would be 8 a . m. to 4 : 30 p.m.
There was no mention of Saturday work . This was the
first time such a notice had been posted . The new hours
were thereafter observed . During the hearing the General
Counsel amended the complaint to allege this change in
hours as a violation of Section 8(a)(5) and (1) of the Act.
The General Counsel made clear that he was not alleging
that the change in hours was a discrimination because of
union activity and he did not argue that the change had
other than economic motivation . His theory simply was
that a unilateral change was made at the time when
Respondent had a duty to bargain with the Union.
Respondent did not bargain with the Union about the
change . I find that the change was a unilateral
modification of existing working conditions and as I have
already found that the Respondent had a duty to bargain
with the Union , the change is an additional violation of
Section 8 (a)(5) and (I) of the Act. I will therefore
recommend that the Respondent be ordered to cease and
desist from making such unilateral changes. However, in
the, circumstances of this case where the underlying duty
to bargain is being litigated, I do not believe that any
additional remedy for the unilateral change would be
warranted . Cf. Donna Lee Sportswear, 174 NLRB No.
54.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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
123
Having found that the 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 engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, I shall recommend that it cease and desist
therefrom and upon request bargain collectively with the
Union as the exclusive representative of all employees in
the unit set forth above and, if an understanding is
reached, embody such understanding in a signed
agreement. I3
Having found that Respondent discharged and failed to
reinstate James F. Aldridge and Willie L. Jeter in
violation of Section 8(a)(3) and (1) of the Act, I shall
further recommend that Respondent offer reinstatement to
said employees and make them whole for any loss of pay
resulting from their discharge from the date of their
discharge to the date on which they are offered
reinstatement, less their net earnings during that period.
Such backpay shall be computed on a quarterly basis in a
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and shall include interest at 6 percent as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act:
All employees employed by Respondent at its Broward
County equipment yard, excluding office clerical
employees, guards, professional employees and
supervisors as defined in the Act.
4. At all times since August 2 the Union has been the
exclusive representative of the employees in the aforesaid
unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By refusing on August 6 and thereafter to bargain
with the Union as the exclusive representative of the
employees in the said appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By discharging and refusing to reinstate James F.
Aldridge and Willie L. Jeter because of their activity on
behalf of the Union, thereby discouraging membership in
the Union, Respondent has violated Section 8(a)(3) of the
Act.
7. By the foregoing conduct and by interrogating its
employees about their union activities, by threatening
them with discharge if they engaged in such activity and
"In view of the Respondent's numerous and serious violations of Sec.
8(a)(1) and (3) of the Act, I would recommend a bargaining order as a
remedy to those violations even if no violation of Sec 8(a)(5) were found
Irving Air Chute Company, Inc. 149 NLRB 627, Frito-Lay, 169 NLRB
No. 115, Heck's Inc, 172 NLRB No. 255
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by promising them benefits if they refrained from such
activity, Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act and thereby
has violated Section 8(a)(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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that Respondent, Nat Harrison Associates,
Inc., shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
activities.
(b) Threatening its employees with loss of jobs or
economic benefits if they become members of or assist the
International Brotherhood of Electrical Workers, Local
No. 728, AFL-CIO.
(c) Promising its employees economic benefits if they
refrain from becoming a member of or assisting that labor
organization.
(d) Discriminating against its employees by discharging
them in order to discourage membership in that labor
organization.
(e) Refusing to recognize and bargain with the
International Brotherhood of Electrical Workers, Local
No. 728, AFL-CIO, as the exclusive representative of its
employees in the following unit:
All employees employed by Nat Harrison Associates,
Inc., at its Broward County equipment yard, excluding
office clerical employees, guards, professional
employees and supervisors as defined in the Act.
(f) Unilaterally changing the terms and conditions of
employment of its employees in said unit without
bargaining with said labor organization as the exclusive
representative of the employees in that unit.
(g) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to James F. Aldridge and Willie L. Jeter
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other
rights and privileges.
(b) Make whole the above-named employees for any
loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them
of a sum of money equal to the amount he normally
would have earned as wages from the date of the
discharge to the date of the offer of reinstatement, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) 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, as amended, after discharge
from the Armed Forces.
(d) Upon request bargain collectively with the
International Brotherhood of Electrical Workers, Local
No. 728, AFL-CIO, as the exclusive representative of all
the employees in the appropriate unit described above,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(e) Post at its Fort Lauderdale, Florida, yard, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
authorized representative, shall be posted by the
Respondent 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.
(t) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.r4
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" and in the first paragraph of
the notice the words "a Trial Examiner of' shall be deleted. In the further
event that the Board ' s Order is 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 is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 12 , in writing , within 10 days from the date of this Order, what
steps 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 effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a Trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act, and has ordered us to post this
Notice.
The Act gives all employees these rights:
To engage in self organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all of these things
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT ask you whether you are a member of
or are helping the International Brotherhood of
Electrical Workers, Local No. 728, AFL-CIO.
WE WILL NOT threaten you with loss of your job or
any benefits you now enjoy if you become a member or
help that Union.
WE WILL NOT promise to reward you in any way if
you refrain from becoming a member of or helping that
Union.
WE WILL NOT discharge any employee to discourage
membership in that Union.
WE WILL immediately offer to reinstate James F.
Aldridge and Willie L. Jeter to their former or
substantially equivalent positions without any change in
seniority or other privileges they enjoyed before we
discharged them and we will pay to them any money
NAT HARRISON ASSOCIATES
they lost as a result of the discrimination against them
with interest at 6 percent.
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, as
amended , after discharge from the Armed Forces.
WE WILL recognize International Brotherhood of
Electrical Workers, Local No. 728, AFL-CIO, as the
only collective-bargaining representative of our
employees in the bargaining unit which is:
All employees employed by us at our Broward
County equipment yard , excluding office clerical
employees , guards, professional employees and
supervisors as defined in the Act.
WE WILL bargain on request with the International
Brotherhood of Electrical Workers , Local No. 728,
AFL-CIO, on. wages, hours, and conditions of
employment and any agreement we reach will be put in
writing and signed.
125
WE WILL NOT change your hours or other conditions
of employment without bargaining with the
International Brotherhood of Electrical Workers, Local
No. 728, AFL-CIO.
Dated By
NAT HARRISON
ASSOCIATES, INC.
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, Room 706,
Federal Office Building, 500 Zack Street , Tampa , Florida
33602, Telephone 813-228 -7711, Ext. 227.