Renner Plumbing, Heating & Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1968

172 N.L.R.B. 1514 (N.L.R.B. 1968)

1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Renner Plumbing , Heating & Air Conditioning, Inc.
and Local Union No. 5, United Association of
Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States and
Canada , AFL-CIO. Cases 5-CA-3897 and
5-RC-6069
August 13, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On May 16, 1968, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in Case 5-CA-3897 and recommending
that it cease and desist therefrom and take certain
affirmative actions, as set forth in the attached Trial
Examiner's Decision . In view of these findings and
recommendations, he further recommended that
the petition in Case 5-RC-6069 be dismissed and
that all proceedings held in connection therewith
be vacated. Thereafter, Respondent filed excep-
tions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases 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 the
entire record' in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Renner Plumbing,
Heating & Air Conditioning, Inc., Winchester, Vir-
ginia , its officers , agents , successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer 's Recommended Order.
' As the record estbalishes that an employee referred to by the Trial Ex-
aminer in part IV, C. 3, of his Decision as Carmine M Clark is actually
Herman M Clark , the Decision is corrected accordingly
Y In the absence of exceptions we adopt , pro jornm, the recommendation
of the Trial Examiner that the authorization card of Harley Adams not be
included among those supporting the Union 's claim of majority Cf Levi
Strauss & Co, 172 NLRB 732.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a
charge filed on September 13, 1967, by Local
Union No. 5, United Association of Journeymen &
Apprentices of the Plumbing & Pipefitting Industry
of the United States and Canada, AFL-CIO, herein
called the Union, the Regional Director for Region
5 of the National Labor Relations Board, herein
called the Board, issued a complaint on behalf of
the General Counsel of the Board on October 26,
1967, alleging violations of Section 8(a)(I) and (5)
of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151, et seq.), herein called the Act.
Thereafter on October 31, 1967, the Regional
Director issued his order consolidating Case
5-RC-6069 with Case 5-CA-3897 and directing a
hearing on objections filed by the Union on Sep-
tember 7, and amended thereafter on September 1 1
in that case, wherein an election had previously
been held on September 1 among Respondent's
employees, which election resulted in eight votes
for the Union and nine against it. In its duly filed
answer Respondent, while admitting certain allega-
tions of the complaint, denied the commission of
any unfair labor practice.
Pursuant to notice a trial was held before me in
Winchester, Virginia, where all parties were
present, represented, and afforded full opportunity
to be heard, present oral arguments, and to file
briefs with me. Briefs were filed by all parties.
Upon consideration of the entire record, includ-
ing the briefs of the parties, and specifically upon
my observation of each witness appearing before
me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Renner Plumbing, Heating & Air Conditioning,
Inc., Respondent herein, is a Virginia corporation
with its place of business at Winchester, Virginia,
where it is engaged in the business of installing and
servicing plumbing, heating and air-conditioning
equipment. In the course and conduct of its busi-
ness during the most recent 12-month period it per-
formed services valued in excess of $50,000 for
customers located outside the Commonwealth of
Virginia and in the same period it purchased and
' I have considered the testimony of all witnesses , including those whose
testimony I neither accept nor refer to In evaluating the testimony of each
witness I have relied specifically upon his demeanor and have made my
findings accordingly Apart from consideration of demeanor I have taken
into consideration inconsistencies and conflicting evidence If, in any
specific instance , I have failed either to detail resolutions of conflicts or to
have analyzed specific testimony it is for the reason that , in my judgment,
the Decision would only be to that extent encumbered , and no advantage
to the understanding of my findings would be served Bishop and Mateo,
/n( ,d/bla Waller ' ,, 159 NLRB 1159, 1 161
172 NLRB No. 172
RENNER PLUMBING, HEATING & AIR CONDITIONING, INC.
received directly from suppliers located outside the
Commonwealth of Virginia goods valued in excess
of $50,000.
Upon the foregoing admitted facts I conclude
and find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I conclude and find that Local
Union No. 5, United Association of Journeymen &
Apprentices of the Plumbing & Pipefitting Industry
of the United States and Canada, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE ISSUES
1. Threats, interrogation, and promises of
benefit as interference, restraint, and coercion.
2. Good-faith elements of a refusal to bargain.
3. Authorization cards as evidence of majority
status.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Richard Johnson, a representative of the Union,
met with employees of the Respondent and other
employers in the plumbing trade in the Winchester
area on May 19, 1967, and again on June 9 or 19.2
On these occasions the objectives of the Union
were explained to the men, as were the benefits to
be derived from representation in their behalf in fu-
ture negotiations with their employers. At the
second meeting blank authorization cards were
given to one of the Respondent's employees, Lillis,
by Representative Johnson. This card stated as fol-
lows:
AUTHORIZATION FOR REPRESENTATION
UNDER
THE NATIONAL LABOR RELATIONS ACT
I, the undersigned employee, of the (Print
full name of Company) employed as (Print
your occupation or a description of your job)
at (City) (State) (Location of Project)
hereby authorize Local Union No. of the
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, af-
filiated with the AFL-CIO, to represent me
and, in my behalf, to negotiate and conclude
all agreements as to hours of labor, wages and
' The record is confused as to this date. Johnson testifying to the 9th and
the 19th on two respective appearances as a witness This discrepancy is
not significant to any issue herein
1515
other employment conditions in accordance
with the provisions of the National Labor Rela-
tions Act of July 5, 1935, as amended by the
Labor-Management Act of 1947, and the
Labor-Management Reporting and Disclosure
Act of 1959 (Landrum-Griffin Act).
The full power and authority to act for the
undersigned as described herein supersedes
any power or authority heretofore given to any
person or organization to represent me, and
shall remain in full force and effect for one
year from date and thereafter, subject to thirty
(30) days written notice of my desire to
withdraw such power and authority to act for
me in the matters referred to herein.
(Date) ( Signature of Employee)
(Home address)
Lillis distributed the cards among Respondent's 19
employees , 13 of whom returned them signed to
him thereafter . These cards were then delivered on
June 28 to Union Representative Johnson , who, in
turn , delivered them to the Union 's attorney.
After obtaining the signed cards from Lillis,
Johnson tried unsuccessfully to reach Respondent
by telephone . On his second attempt he was told by
a secretary that Mr. Renner had instructed her to
refer calls from the Union to his attorney.'
Thereafter , on June 30 , 1967, over the signature of
Samuel Armstrong , Respondent 's business agent,
the following letter was sent to Respondent:
For and on the behalf of Local Union
Number 5 , of the United Association of Jour-
neymen and Apprentices, of the Plumbers and
Pipe Fitting Industry of the United States and
Canada , AFL-CIO; we hereby wish to inform
you that we represent a majority of your Plum-
bers-Pipe Fitters employees , helpers and/or
Apprentices , who have selected us in writing as
their collective -bargaining representative.
Therefore , this is to request that your com-
pany recognize the afore -mentioned Union as
the bargaining representative for said em-
ployees in the above described unit. We are
prepared and are now offering to demonstrate
our majority status to you through a card
check of the employees who have designated
and authorized this Union to act as their col-
lective bargaining representative. We will
agree to any responsible disinterested person,
such as a minister or a rabbi or a member of
the Federal Mediation and Conciliation Ser-
vice , to make this card check.
Please treat this request for recognition as
the majority representative of the employees in
3 The credited testimony of Johnson. The secretary was not called
as a witness and Respondent's president , Connie Renner, testified that
when Attorney Largent had been retained (after Renner first "heard
about the Union") all such telephone calls were referred to him
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said unit as a continuing request and if you are
not prepared to allow us to prove our majority
to you at this time in some feasible manner
other than a formal board election after a hear-
ing, but would wish to do so in the future,
please contact me at once by phone or letter at
the above Washington address and telephone
number.
No other person or organization now
represents a majority of the above described
unit, and you are hereby cautioned against en-
tering into any contract or any collective bar-
gaining negotiations with any other organiza-
tion presuming to act as agent for or in behalf
of any such employees. You are further cau-
tioned to take no unilateral action in regard to
rates of pay, hours of work, and all other con-
ditions of employment without first contacting
Local 5, of the United Association of Jour-
neymen and Apprentices of the Plumbers and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO, and giving them a chance
to meet and bargain on any such changes
This will serve as the Union's request that
the Company bargain collectively with the
Union and negotiate to a conclusion the terms
of a collective bargaining agreement regarding
all matters pertaining to wages, hours of work,
working conditions, and other conditions of
employment
We stand ready and willing to meet with
your designated representative at an early date,
mutually agreeable to the parties, to conclude
such negotiations
We are hereby requesting that you notify us,
either by collect telephone call, collect tele-
gram, or in writing, by the close of business on
Thursday, July 6, 1967, as to what your posi-
tion is concerning our demand for recognition
as exclusive bargaining agent of your Plumber-
Pipe Fitter employees, helpers and/or Ap-
prentices If we do not hear from you we shall
take your silence as a refusal to grant us such
recognition, and shall take what ever legal ac-
tion we deem necessary under the circum-
stances of your refusal.
In reply, Respondent's attorney sent the following
to the Union on July 5, 1967 '
Reference is made to your letter dated June
30, 1967, addressed to Renner Plumbing,
Heating & Air Conditioning Co., Inc.,
Winchester, Virginia.
This matter has been referred to me as coun-
sel for this Company and you may direct any
future correspondence to me
Ihere is no esidenLe i% to the date Respondent recessed the Union's
Juni 10 request to bargain In the absence of such csideni-c and lacking
.an) issue raised as to the prey sc date of the request June 10 is deemed to
he the date upon sshich findings herein mac he hissed Cf Buu•r Brui Its,
I70NLRB 1108
I have been instructed to advise you that the
Company is not willing to recognize you as the
bargaining agent as requested by your letter.
Upon Respondent's stated refusal to bargain with
it the Union, on July 10, filed its petition with the
Board for an election among Respondent's em-
ployees. After the filing of an amended petition on
July 13 and negotiations among representatives of
the parties the Board's Regional Director on July
27 approved a Stipulation for Certification Upon
Consent Election, and the election was scheduled
for Friday, September I In the stipulation the fol-
lowing was agreed upon as a unit appropriate for
the purposes of collective bargaining.
All mechanics, first class, mechanics, second
class, and helpers employed by the Employer
but excluding all other employees, including
temporary summer students, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act, as amended.
B. Interference, Restraint , and Coercion
1. The facts
After the Union's organizing efforts had resulted
in the foregoing events and arrangements for the
forthcoming election had been made, a number of
incidents occurred which bear directly upon the
issue at hand. Thus, shortly after employee Robert
McDaniel signed his union authorization card Su-
perintendent Ray M. Fries, Jr., called him and his
brother, Roger, into the office and, in the presence
of Hugh Campbell, secretary of the Respondent,
"asked what the guys wanted." Coupled with Fries'
inquiry was his comment on the pay rate which the
men were then receiving for nightwork, that "if the
union was in we would only get straight time for
that, but if the union wasn't in we get double time."
At that time the men were actually receiving dou-
ble time for such work." On a later occasion, during
a coffeebreak, Fries observed that whereas they
were then enjoying their coffeebreak this practice
would be discontinued once the Union got in. In-
deed Fries admits to having made the statement but
insists that he did so in a joking manner. He con-
cedes, however, that he never qualified his remark
as a joke to anyone who heard him, nor did any of
the several employees who testified concerning it
give any impression that they considered the re-
mark an attempt at humor.
Similarly, during July or August, as the election
campaign progressed, Fries told employee Roger
McDaniel that Respondent was worried whether
work would be available. Fries, it appears from his
own testimony, claims to have heard from the
` the credited, indented testimonN of Robert and Roger McDaniel
Although called to testify in dental of numerous statements attributed to
him Fries was not questioned concerning this mudent
RENNER PLUMBING, HEATING & AIR CONDITIONING, INC.
foreman of a local general contractor, Shockey &
Co., that in the event that Respondent "went
union" there was a possibility that wages would go
up and it would not get any more of Shockey's
work. This, characterized by Fries himself as a ru-
mor, was admittedly circulated by him among the
employees and a number of them testified to having
been told it by Fries.'
President Renner was no less active in the cam-
paign than was his superintendent. On a considera-
ble number of occasions when Fries made the re-
marks set forth above, and similar ones, Renner,
according to those present,' was either in the group
or nearby.
On one specific occasion when employee Combs
was working on a job at Renner's residence the sub-
ject of transporting workers to out-of-town jobs
came up in a conversation with Renner. He told
Combs that in the past when he had worked as a
union member he had to be on the job at starting
time and stay there until quitting time and that he
did not have transportation furnished him to and
from job as was provided by Respondent on similar
jobs. "Therefore," he said, "I did not know what
the Union would be after."'
Thereafter, about a week before the election,
Renner repeated to employees Robert McDaniel
and John Booth the rumor previously circulated by
Fries (supra) to the effect that if the Union got in
the Shockey Company would not give them any
more work.9
Renner's prime contribution to the campaign,
however, was three speeches given to assembled
employees at the beginning of the workday on a
morning several days prior to July 15 and on Au-
gust 28 and 29.10
In the first speech Renner announced to the men
that he had something "stewing in the pot" for
them but because the Union arrived on the scene in
the meantime his hands were tied and he could not
discuss it with them. He went on to describe the
Company's policy of providing work during slack
periods in the winter months. At such times the em-
ployees were assigned such items of "busy work" as
sorting bolts and parts and cleaning the shop
Renner reminded the employees that during the
past winter he had paid out $7,000 for such work, a
benefit that he was not obliged to provide them. He
then said that if the Union came in and wages were
increased he could not afford to provide this so-
called shop time and that the men would have to go
home. He then commented upon the possibility of
bargaining with strangers, stating his feeling that he
" the testimony of employees Smallwood I ongcrhaun and Robert ML-
Daniel
Robert and Roger McDainel
Renner '% testlmom which would support employee Combs tc.tnnom
wherein he understood Renner to tmpf\ that If the Union came In transpor-
tation to out-of-town Jobs would no longer he furnished
The credited, undemed testimony of Robert McDaniel
the dates of the August speeches are disputed Upon consideration of
all the testimony on the subject and upon the basis of a i op, of the second
1517
found it more difficult to talk with strangers than
with someone whom he knew. At this point he sug-
gested the more acceptable alternative of dealing
with someone selected from among the employees,
but he said he would not guarantee them anything
The foregoing account of Renner's speech is a
synthesis of the credible testimony of employees
testifying at the hearing tt Renner's account agrees
with this in substance, excepting that he either fails
to mention or denies several salient facts. Thus he
denies outright the reference to something "stewing
in the pot." Upon consideration of the volume of
testimony to the contrary I reject his denial He
concedes the reference to shop time but does not
"recall" relating it to any future action pegged to
the Union. I do not accept his failure to recall as a
denial And with respect to his admitted reluctance
to deal with strangers and his being more comforta-
ble among friends he testified simply that he never
said he would not reach an agreement with the
strangers. He made no comment whatever upon the
statement credibly attributed to him by the two Mc-
Daniels and Longerbeam that the men should select
someone from among themselves to bargain for the
group.
The second speech, on August 28, was delivered
from a prepared copy and appears in the record as
Renner memorized and delivered it. In its entiretN it
read as follows:
You have the right to select a bargaining
representative, and you also ha-,e the right to
refrain from selecting such a representati\e
Both of these rights are protected under the
law.
On Friday, September 1st, beginning at 7.15
A M., you will have the opportunity to vote on
this question without interference from the
Union or the Company. and by secret ballot
The election will be conducted by a represen-
tative of the National Labor Relations Board
without Union or Compan} representati\ es
present.
If you have signed a Union card, you hake
not obligated yourself in any way to cast a \ ote
for the Union The purpose of this election is
to give you the opportunity to make your free
choice
In my opinion, a vote for the Union \\ould
not be in your best interest or in the best in-
terest of the Company. We are a small or-
ganization, and I believe that we should con-
tinue to deal directly with each other \\ ithout
speech Introduced into e'ldence t. Melt I I-sept Is ,I credibkL and authent',
document, parucularl, reking upon the date of August _ t which nut
eluded thereon I cone lode and find than the speeches were gn en on 4u
gust 228 and 29 and did not solute the Board s rule p,ohd.mng
glten within the _24-haul period unntedt.neh prucdutg the holding of Ili
official election
" Paruudarls employees Robert Ml Daniel Roger \is D.ur I Ion gtr
heart and Jackwn
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the interference of a third party, who is a
stranger to both of us.
The Union can promise you benefits, but un-
less these benefits are agreed upon through
negotiation, they mean nothing. In many cases
these negotiations have been carried on for
months, and no agreement has been reached.
Under the law the Company cannot promise
you any benefits. Neither can it threaten or
coerce you in any way. I would point out, how-
ever, that the benefits that you have received
in the past were made voluntarily by the Com-
pany and without a Union, and also without
the necessity of your paying Union dues and
Union assessments.
Don't be misled. Consider this matter and
use your own good judgment and vote on
Friday.
It appears from the testimony of several of General
Counsel's witnesses that Renner interpolated as he
spoke, wandering from his prepared text. Thus em-
ployees Longerbeam and Robert McDaniel quote
him as saying that it would take "months and
months and months" to negotiate a contract. I am
not persuaded that repetition adds an ominous
flavor to the textual statements that "negotiations
have been carried on for months." Similarly, he is
credited with having again suggested the appoint-
ment of employees to bargain with him as an alter-
native to the strangers whom he referred to in his
earlier speech.12
On the 29th Renner again assembled his em-
ployees, this time in two separate groups to ac-
comodate work schedules. His speech was a brief
one limited to only a statement of reminder that
they should vote and that they were not obligated
one way or another because they had or had not
signed a union card.
2. Conclusions
Upon the foregoing findings it is evident that,
from Respondent's first knowledge of the Union's
interest in its employees, it engaged in an effort to
persuade them to the contrary as was its legal right.
In the process, however, it appears that conduct
and statements not in keeping with the neutrality
required of an employer in such matters became
recurrent. Thus it questioned employees about
"what the guys wanted," coupling these questions
with a comment that the pay rate would be lowered
if the Union came in. However innocuous such in-
terrogation may be in a vacuum, it certainly loses
its innocence when asked in the context of a threat.
This, plus such remarks as the ones dealing with the
demise of the coffeebreak, the loss of business from
local contractors, and the need for employees
furnishing their own transportation, all pegged to
the Union's success in the election, could not but
interfere with, restrain, and coerce the employees
in their freedom to select or reject the Union in the
election. Nor is citation of authority necessary to
support such a conclusion.13
Renner's speeches provided numerous instances
of this same unlawful intrusion. First is his promise
of better things to come if the Union is rejected. If
indeed Renner had "something in the pot" that
would be beneficial to his employees the timing of
that announcement was most certainly misplaced.
However generous his spirit, to manifest this
generosity as an alternative to the employees select-
ing the Union was certainly an intrusion upon their
freedom of choice.
So also is the case of Renner's remarks about the
practice of providing employees with "shop time"
or "down time." For when he announced to them
in his speech that with higher wages of a union con-
tract he could no longer afford to continue the
practice, then the obvious effect could be no other
than to impress upon the men that they could retain
these economic benefits only by rejecting the
Union. In these further respects, therefore, I find
that Respondent has interfered with, restrained,
and coerced its employees.
A consideration of Renner's several speeches in
other respects, however, does not suggest the il-
legality urged by the General Counsel. Certainly,
for example, Renner is entitled to the opinion that
he finds strangers more difficult to deal with than
his friends, and to say so publicly. Nor do I see the
vice in suggesting, as he did, that he would prefer to
deal with the employees themselves. Any vice in
this respect would spring from rewards or conces-
sions offered for such an arrangement. And in this
respect the testimony of the employees is clear that
Renner never offered them any reward or benefit if
they would reject the Union and select one of their
own to speak for them. Indeed employee Longer-
beam credibly testified that when Renner suggested
the appointment of a spokesman he also stated, "I
am not promising that we would or would not get a
raise ." This, then, is not in the category of efforts of
an employer to induce by bribes or benefits em-
ployees to form their own organization.
Nor is there anything unlawful in Renner's state-
ment that negotiations with the Union could or
would take "months," or indeed "months and
months." I know of no holdings of the court or
Board that would find unlawful negotiations
protracted for legitimate reasons. Not intending to
" t In a number of instances witnesses appear to have confused what was
said at one meeting with what was said at another Due allowances for a
normal lapse in recollection persuade me that these are accidents of
testimony which are of no significant import
" As previously indicated , I am not disposed to consider a number of the
statements upon which I base my findings to be the product of Fries' mis.
placed sense of humor Quite apart from the inappropriateness of the sub-
ject matter as a basis for humor nothing in the record, including Fries'
demeanor , suggests that he ever took a lighthearted approach to the
unionization of the men or to conversation concerning it
RENNER PLUMBING, HEATING & AIR CONDITIONING, INC.
read illegitimate reasons into Renner's remarks
where none appear I would reject any suggestion
that he was not free to speculate publicly on the
possible extent of future dealings with the Union. In
summary, I would conclude and find that by the
conduct and statements of Connie Renner and Ray
Fries detailed above, excepting so much of
Renner's speeches as I have discussed above,
Respondent interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed them by the Act, thereby violating Sec-
tion 8(a)( 1).
C. The Refusal To Bargain
It is General Counsel's contention that when the
Union requested recognition and bargaining and
Respondent rejected this request the Union already
represented a majority of the employees in a unit
which was thereafter agreed upon as appropriate
for the purpose of bargaining. This, it is claimed,
can be established by the signed union authoriza-
tions cards in the Union's possession. Accordingly,
it is contended, because Respondent's course of
conduct generally, and specifically its subsequent
unlawful conduct, negates any suggestion of a
good-faith doubt of this majority and because its
request for an election was actually motivated by a
desire to undermine the Union," Respondent's
refusal to bargain with the Union was unlawful.
Since the existence of a majority in an appropriate
unit is a sine qua non for any findings of refusal to
bargain an analysis of the evidence upon which it is
based is the first order of business.
1. The request and refusal
Upon the uncontested documents submitted in
evidence and set forth above (section IV, A, supra)
I conclude and find that on June 30, 1967, the
Union requested Respondent to bargain with it as
representative of the employees in the following
unit agreed upon as appropriate:
All mechanics, first class, mechanics, second
class, and helpers employed by the Employer,
but excluding all other employees, including
temporary summer students, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act, as amended.
I further conclude and find that by letter of July 5,
1967, Respondent refused to bargain with the
Union.
Respondent's motivation in this action which it
took manifests, it is claimed, an improper course of
conduct demonstrating that Respondent never did
entertain a doubt as to the Union's majority status.
Renner's own testimony would tend to support this
claim. Thus, he stated on cross-examination that
14 Cf Berne! Foam Products Co, Inc , 146 NLRB 1277
15 Cf No!! Motors, Inc , 168 NLRB 1029
1519
upon receiving the Union's letter of June 30 he
merely "looked it over" and passed it on to his at-
torney without knowing what its contents were.
It is difficult to believe that a knowledgeable
business man, upon receiving a letter from a union,
could or would so repress his natural curiosity as to
merely "look it over" and pass it on without further
study. If Renner did this, knowing, as he admittedly
did, that his employees were involved with the
Union, he has thereby manifested, to my satisfac-
tion, an attitude of avoidance and evasion of the
Union clearly indicative of a determination not to
recognize or bargain with it. I must either accept
this conclusion or the only other possible alterna-
tive-that such testimony is not worthy of belief.
But whether I believe it or not Respondent, I find,
has established its bad faith at the outset,15 quite
apart from such improper conduct in which I find it
has indulged.
2. The arithmetic
It is stipulated among the parties that on June 30,
the date of the Respondent's request, there were 19
employees in the appropriate bargaining unit. Ac-
cordingly, to demonstrate its numerical majority
the Union must establish that 10 or more of these
had selected it as their representative on or im-
mediately before this date.
3. The signed authorization cards
The form of the card which employees signed
and returned to the Union has already been
described (supra). This card, I conclude and find,
adequately and effectively serves to state as its pur-
pose the signer's authorization of representation.
Cards were signed by 13 employees under the fol-
lowing conditions as credibly described by them in
their testimony: The signers had attended one or
both of the union meetings at which, it is credibly
testified, they were told the Union's objectives and
its desire to represent them as bargaining represen-
tative in negotiations with Respondent. Each of the
following employees credibly testified to having
signed his card on the date indicated and thereafter
turning it over to either employee Lillis or Roger
McDaniel.
John Booth June 21, 1967
Carmine M. Clark June 20, 1967
Robert Puffinberger June 20, 1967
Jack Grubb June 20, 1967
Truman Peffer16
Harley Adams
Robert L. McDaniel
Undated
Undated
June 23, 1967
William F. Combs June 20, 1967
Roger Lee McDaniel June 20, 1967
'" Employee Peffer credibly testified that he signed a card sometime in
June 1967 When pressed by counsel for a more definite date he said it was
"between the 17th and the 19th or 20th "
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leonard E. June 20, 1967
Smallwood
Tinly William June 21, 1967
Jackson
John H. Lillis June 20, 1967
Gary Golightly June 20, 1967
All except two unqualifiedly testified that they had
read the card before or after signing it, and cer-
tainly before returning it to employee Lillis. Lillis in
turn passed the cards on to employee Roger Mc-
Daniel who in turn gave them to Union Representa-
tive Johnson.
Employee Truman Peffer "read the card as best
he could" not having his glasses. He knew what the
card meant, however, having attended the meeting
and having heard what was said about the Union
Employee Harley Adams, when called as a witness,
was particularly uncommunicative, remembering
little if anything concerning either the union meet-
ing he attended or the date or circumstances under
which he signed his card. Nor did he recall these in-
cidents when his pretrial affidavit was read to him.
He did testify, however, that this statement was true
when given to an agent of the Board. Therein he
stated that he signed the card in the middle of June
at employee Lillis' request, that he returned it to
him, and that he understood he was authorizing the
Union to represent him. Under all the circum-
stances , I reject Adams' vague testimony and rely
instead upon this sworn affidavit which he states to
be true. I conclude and find that Adams signed the
card prior to June 30, 1967.
Not only has it been shown that I I of the signa-
tories read the card but the testimony of all except
Adams makes it clear that they understood what
they were doing. Thus employees Booth, Clark,
Roger McDaniel, Robert McDaniel, Puffinberger,
Smallwood, Jackson, and Lillis testified that they
either knew or were told that the purpose of the
card was to authorize the Union to represent them.
Some of these, together with employee Grubb,
when given a blank card, were asked if they were
interested in the Union ; but no one among those
testifying was told that he was obligated to become
a member or was otherwise bound by what he
signed. Employee Combs was told nothing when
given the card but testified that he already knew
what it was for, as did employee Gary Golightly.
Employee Booth was told by Lillis, who gave him
the card to sign, that "it was a card to sign if we de-
cided that we would like to join the Union." Booth,
who had testified that he read the card, later
testified that he "understood what this card said."
In this case I specifically conclude and find that
Booth understood his signature to be an authoriza-
tion of the Union to represent him.
Employee Adams, whose faulty recollection has
already been featured, testified on cross-examina-
tion that he did not know what he was signing, that
he just signed the card "to keep anyone from
getting mad at me." Adams impressed me as a wit-
ness who was not disposed to cooperate, but I have
no way of determining whether this disposition was
chronic or contrived. In either case, however, and
with due consideration of his studied effort to disas-
sociate himself from the Union, I would recom-
mend that his card not be included among those
supporting the Union's claim of majority status. In-
deed to do so could taint what I deem to be an
otherwise clear indicia of the employees' selection
of the Union as their bargaining representative.
In summary, therefore, and upon the foregoing
considerations, I would accept the 12 authorization
cards held by the Union on June 30, 1967, being all
cards except the doubtful Adams' card, as
unqualified evidence of the fact that on that date
the Union represented a majority of Respondent's
19 employees, and I so conclude and find.
4. Conclusions
In the bargaining unit agreed upon I have found
that on June 30, 1967, there were 19 eligible em-
ployees . To constitute a numerical majority 10 or
more would be required to authorize the Union to
represent them . On the basis of the findings I have
made herein , I conclude and find that during this
period at least 12 did so, having read and signed
authorization cards which I have counted as valid,
authentic designations . It is well settled , of course,
that an employer may insist upon a Board election
as proof of a union 's majority , which it did not see
fit to request here. It is equally well settled, how-
ever , that it may not lawfully bargain when its
refusal is grounded, not upon a good -faith doubt of
the union's majority status , but rather upon a "re-
jection of the collective bargaining principal or by a
desire to gain time within which to undermine the
Union.""
Here Respondent conceded that he had not even
read the Union 's letter of request before passing it
on to his attorney . Nor did he see fit to accept a
telephone call from the Union 's representative.
Meanwhile , and thereafter , however , he and his su-
pervisor , Fries, did display sufficient interest in the
Union 's progress and status to indulge in the inter-
rogation, promises of benefits , and threats of
reprisal which I have detailed above (section III, B,
1 and 2 , supra ) as interference , restraint , and coer-
cion in violation of Section 8(a)(1) of the Act.
Because all of this clearly discloses that the
Respondent 's refusal to bargain , unaccompanied as
it was by any stated doubt of the Union's majority,
lacks the good faith required of it, and because I
find that Respondent has engaged in conduct which
would undermine the Union 's existing majority, I
conclude and find that its failure and refusal to
" Jog Silk Milli. hit , 85 NLRB 1263, 1264, enfd 195 F 2d 723
(C A D C ) See also Noll Motors , /nu , 168 NLRB 1029
RENNER PLUMBING, HEATING & AIR CONDITIONING, INC.
recognize and bargain with the Union constitute a
violation of Section 8(a)(5) of the Act and further
interference, restraint, and coercion in violation of
Section 8(a)(I ).'8
D. Objection to the Election
In addition to the foregoing findings and conclu-
sions upon which I shall base my recommendations
for a remedy for the unfair labor practices com-
mitted, I also have before me objections to the con-
duct of election in Case 5-RC-6069, referred to me
by the Regional Director for disposition.
A review of the pleadings and related evidence
discloses that objections raised are substantially
identical with the allegations of Section 8(a)(1) in
the complaint. To the extent, therefore, that I have
already treated of these allegations and found cer-
tain of them to constitute unlawful conduct, as al-
leged, it would unduly burden the record and the
reader to reiterate these findings in a parallel con-
text. Suffice it to say that in the instances of inter-
ference, restraint, and coercion which I have al-
ready found (supra) it is an a fortiori conclusion
that such conduct interferes with the exercise of the
free choice of voters necessary for an election.'"
Accordingly, I shall recommend that the represen-
tation election heretofore held in Case 5-RC-6069
be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
IV, above, occurring in connection with its business
operations described in section 1, 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.
VI. THE REMEDY
It has been found that Respondent has violated
the Act in certain respects. I will accordingly
recommend that an order issue requiring Respon-
dent to cease and desist therefrom and to take cer-
tain affirmative action which will effectuate the pol-
icies of the Act. Furthermore, in view of my finding
that Respondent has violated Section 8(a)(5) of the
Act, I will recommend that the petition in Case
5-RC-6069 be dismissed and that all proceedings
held in connection therewith be vacated.
" Mink-DaNon, Inc, 166 NLRB 604
" Irving Air Chute, !n( , Marathon Division, 149 NLRB 627, affd 350
F2d176(CA 2)
d1 In the event that this Recommended Order be adopted by the Board,
the word "RECOMMENDED" shall be deleted from the caption and wher-
ever else it appears thereafter, and for the words "I recommend" there
shall be substituted "the National Labor Relations Board hereby orders "
RECOMMENDED ORDER
1521
Upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations
Act, as amended, I recommend'" that Renner
Plumbing, Heating & Air Conditioning, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with economic
reprisals and more arduous working conditions if
they selected Local Union No. 5, United Associa-
tion of Journeymen & Apprentices of the Plumbing
& Pipefitting Industry of the United States and
Canada, AFL-CIO, as their representative.
(b) Promising its employees benefits to induce
them to vote against the aforesaid labor organiza-
tion in the pending election.
(c) Unlawfully interrogating their employees
concerning their union sentiments.
(d) Refusing to bargain with the aforesaid labor
organization as the exclusive representative of em-
ployees in the following unit found to be ap-
propriate for the purposes of collective bargaining:
All mechanics, first class, mechanics, second
class, and helpers employed by the Employer,
but excluding all other employees, including
temporary summer students, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act, as amended.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all Respondent's employees in the
unit found appropriate and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its Winchester, Virginia, premises co-
pies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 5, after being duly
signed by Respondent's representative, shall 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall he substituted for the words "the
Recommended Order of a Trial Examiner" in the notice 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 Ap-
peals Enforcing an Order" shall he substituted for the words "a Decision
and Order -
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.22
IT IS FURTHER ORDERED that the petition in Case
5-RC-6069 be, and it hereby is, dismissed, and all
proceedings held in connection therewith be, and
they hereby are, vacated.
" In the event that this Recommended Order is 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 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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT threaten you that there will be
economic reprisals or more arduous working
conditions if Local Union No. 5, United As-
sociation of Journeymen & Apprentices of the
Plumbing & Pipefitting Industry of the United
States and Canada, AFL-CIO, is your bargain-
ing representative.
WE WILL NOT promise you benefits to induce
you to vote against the aforesaid Union in any
pending election.
WE WILL NOT unlawfully question you con-
cerning your union membership or sentiments.
WE WILL, upon request, bargain collectively
with Local Union No. 5, United Association of
Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States and
Canada, AFL-CIO, as the exclusive represen-
tative of all the employees in the bargaining
unit described below concerning rates of pay,
wages, hours of employment, and other condi-
tions of employment and, if an agreement is
reached, embody it in a signed agreement. The
bargaining unit is:
All mechanics, first class, mechanics,
second class, and helpers employed by the
Employer but excluding all other em-
ployees, including temporary summer stu-
dents, office clerical employees, profes-
sional employees, guards and supervisors
as defined in the Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights to self-organization or
to form, join, or assist any labor organization,
or to bargain collectively with us concerning
terms or conditions of employment through the
representative you select, or to refrain from
any of these activities if you so choose.
You and all our employees are free to become or
remain , or to refrain from becoming or remaining,
members of or withdrawing membership in any
labor organization.
RENNER PLUMBING,
HEATING & AIR
CONDITIONING, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, Sixth Floor, 707 North Calbert Street, Bal-
timore, Maryland 21202, Telephone 962-2909.