B & L Plumbing

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 1016 (N.L.R.B. 1979)

I)t-:C(ISIONS OF NA IONAI. ILABOR REL.AIIONS BOARI)
Fred Branch d/h/a B & I. Plumbing and United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry, I!c)al 598.
Case 19 ('A 10749
August 2. 1979
DEFCISION ANDI) ORDER
By CHAIRMAN FANNING ANI) MIEMBERS JNKINS
ANI) PINI!I I()
On April 20, 1979. Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Fred
Branch d/b/a B & Plumbing. Kennewick, Wash-
ington, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off employees because of their union ac-
tivities.
Respondent a.serts that the Administrative .aw
r
Judge's resolutions of
credibility findings of fact, and conclusions of law are the result of bias
After a careful examination of the entire record. we are satisfied that this
allegation is without merit. There is no basis for finding that bias and partial-
ity existed merely hecause the Administrative Law Judge resolved important
factual conflict in favor of the General Counsel's witnesses. As the Supreme
Court stated in N.L. RB. s. Pilisburh Steamship (orparn', 337 VUS. 656, 659
(1949), "Tlotal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact." Furthermore. it is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dr
Wall Productsr In . 91 NLRB 544 (1950). enid. 188 F.2d 362 (3d (irt. 1951.
We have carefully examined the record and find no basis fr reversing her
findings
T he Administrative Law Judge found that Respondent violated Sec.
8(ax I) of the Act by telling one employee that he could no lnger work on a
racing boat sponsored by Respondent because of his unioin involvement, by
telling a second employee that, although Respondent could find work, Re-
spondent wiould not look for any lbecause he did not want the shop to be-
colme unionized. and by telling all the empl)oyees that they should not have
signed authorization cards. hese violatiions were apparently inadvertently
omitted from the Conclusions of l.aw and recommended Order 11owever.
appriopriate modifications have been made in iur Order and nnlice toi refect
the Administrative Law Judge's findings.
(b) Polling employees regarding their membership
in, or sympathies for, the Union without observing
the objective safeguards required by the National La-
bor Relations Board to assure the protection of rights
guaranteed employees under the National Labor Re-
lations Act, as amended.
(c) Promising employees wage increases, hospital-
ization insurance, paid holidays, and paid vacation in
order to induce them to withhold their support from
the Union.
(d) Granting employees wage increases and insti-
tuting a new hospitalization insurance plan in order
to induce employees to withdraw or withhold their
support from the Union: provided, however, that
nothing herein shall authorize or require the with-
drawal or elimination )f' any wage increases or other
improvements heretofore granted.
(e) Coercively interrogating employees as to their
union sympathies and activities.
(f) Threatening to close his shop rather than recog-
nize the Union as the collective-bargaining represent-
ative of his employees.
(g) Threatening to blackball employees if they vote
for union representation.
(h) Threatening to blackball laid-off employees if
they fail to give a week's notice before taking another
job while on layoff.
(i) Telling employees that they and/or fellow em-
ployees would not have been laid off if they had not
engaged in union activities.
0) Telling employees that they should not have
signed union authorization cards.
(k) Telling employees that they would no longer be
permitted to work on the company-sponsored racing
boat because of their union involvement.
(I) Telling employees that, although Respondent
could have found work, he would not look for any
because he did not want the shop to go union.
(m) Telling employees that Respondent would
have to rescind portions of previously granted wage
increases because of the Union.
(n) In any other manner interfering with, restrain-
ing, and coercing employees in the exercise of rights
guaranteed them in the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) To the extent it has not already done so, offer
Tyrone Riggle. Lynn Lawhon, and Paul Lanno im-
mediate and full reinstatement to their frmer posi-
tions or, if' those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed.
(b) Make Tyrone Riggle. Lynn Lawhon, and Paul
Lanno whole for any loss of pay they may have suf-
fered by reason of the discrimination against them in
243 NLRB No. 173
1016
B & I PI.t MBIN(i
the manner set forth in the section of the Administra-
tive Law Judge's Decision entitled "The Remed.
(c) Preserve and, upon request. make avilahble to
the Board or its agents. for examination and copying.
all payroll records. social security payment records.
timecards. personnel records and reports. and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Kennewick.
Washington, copies of the attached notice marked
"Appendix." Copies of said notice, on tforms pro-
vided by the Regional Director for Region 19. after
being duly signed by his authorized representative.
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by him for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall he taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words In the notice reading "Posted h) Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THI
NATIONAi. LABOR RELAI-IONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that I violated the National
Labor Relations Act. as amended, and has ordered
me to post this notice. I intend to carry out the order
of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form. join, or help unions
To bargain as a group through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of' these things.
I wILL. NOI do anything that interferes with.
restrains. or coerces nmy employees with respect
to these rights. More specifically.
I v i.i. Noi lay off my emploees because of
their union activities.
I v 11 NI poll my employees regarding their
membership in. r sympathies for. the Union
without observing the objective satfeguards re-
quired hb the National l.abor Relations Board to
assure them the protection of their rights guaran-
teed under the National l.abor Relations Act. as
amended.
I lI i NI promise nm employees alget in-
creases or other benefits in order to induce them
to withhold or withdraw their support from the
Ulnion.
I WI 111 NI grant my enlployees wage in-
creases nor institute a neyw hospitalization nsLur-
ance plan in order to induce them to withdrav or
withhold their support from the Union; pro-
vided. however. that nothing in the Board's De-
cision and Order shall authorize or require the
withdrawal or elimination of any wage increases
or other improvements heretofore granted.
I wii.. NOT coercively interrogate m' employ-
ees as to their union sympathies and activities.
I WIL.. NOT threaten to close my shop rather
than recognize the Union as the collectie-bar-
gaining representative of my employees.
I wIl. NOI threaten to blackball m\ emplos-
ees if they vote for union representation.
I wIll. NO threaten to blackball my laid-off
employees if the' fail to give a week's notice be-
fore taking another job while on layoff.
I wIii N(OT tell my employees that they and/
or fellow employees would not have been laid off
if the,, had engaged in union activities.
I Wll , NOTI tell my employees that the3 should
not have signed union authorization cards.
I Vs lIi Nt)I tell my employees that the' will no
longer be permitted to work on the company-
sponsored racing boat because of their union in-
volvemenl.
I w\i. NOt tell m) employees that although I
could find work I will not look for any in order
to prevent the shop for going union.
I 'II I. NOI tell my employees that I will have
to rescind portions of previously granted wage
increases because of the Union.
I W ii. No i in any other manner interfere with.
restrain, or coerce my employees in the exercise
of rights guaranteed them in the Act.
I vi lI. to the extent I halve not alreads done
so. offer I'yrone Riggle. Lynn Lawhon. and Paul
I anno immediate and full reinstatement to their
former positions or. i those positions no longer
I(017
D)E('ISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights
and privileges previously enjoyed.
I wnii. make Tyrone Riggle, Lynn Lawhon,
and Paul Lanno whole for any loss of earnings
they may have suffered by reason of the discrimi-
nation against them, plus interest.
All my employees are tree to become, remain, or
refrain from becoming or remaining members of any
labor organization.
FREI) BRAN(CH I)/B/A B & L P LUMBIN(
DEC'ISION
SIAIEMIEN1 OF r lil CASE
EARI.DEAN V. S. ROBBINS. Administrative Law Judge:
This case was heard before me in Richland, Washington. on
March 8, 1979. The charge was filed by United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry, Local 598, herein called the Union. and
served on Fred Branch d/b/a B & L Plumbing, herein
called Respondent, on September 15, 1978. The complaint.
which issued on November 21, 1978. alleges that Respon-
dent violated Section 8(a)(l) and (3) of- the Act.
The principal issues herein are whether Respondent laid
off and/or terminated employees Tyrone Riggle. Lynn La-
whon, and Paul Lanno because of their union activities,
and whether Respondent engaged in certain other conduct
violative of Section 8(a)( I1) of the Act.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties. I make the following:
FINDINGS OF FACtI
I. ('OMMER('CE
Respondent, a sole proprietorship. with an office and
place of business in Kennewick. Washington. is engaged in
the business of contract plumbing. Respondent, in the
course and conduct of said business operations, during the
12 months preceding the issuance of the complaint herein.
purchased goods and materials valued in excess of $50,000
from suppliers within the State of Washington. which sup-
pliers in turn obtained such goods and materials directly
from sources outside the State of' Washington.
The complaint alleges, Respondent admits, and I find.
that Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. I.ABOR OR(;ANI/ZAIION
The complaint alleges. Respondent admits, and I find.
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. liII Al..I(;JE) t:NtAIR I.AB()R PRAt 1( I:S
A. Fbits
Respondent is engaged in contract plumbing mostly new
residential construction. Sometime in April, after April 9.'
union representatives talked to one of' Respondent's work
crews at a jobsite in an attempt to organize the employees.
Present during this discussion was Superintendent Harry
M. Hulings. herein called Hulings.2 That evening after work
Hulings and Fred Branch. herein called Branch, discussed
the visit of the union representatives to the jobsite.3
Branch said union representatives had visited Respon-
dent's jobsites befbre and expressed displeasure about them
interrupting work. Branch asked Hulings to conduct a
meeting of the employees and have them vote as to whether
they wanted to be represented by the Union.4 Branch said
he felt confident that the employees would reject the Union
and that he would close the shop before he would go union.
Branch also said Hulings was to tell the employees that
business was going along well and that there would be
higher wages, hospitalization, vacation, paid holidays. and
such, coming up. Branch instructed Hulings to conduct the
meeting off Respondent's property and to do it as soon as
possible.
The following afternoon Hulings met with the employees
on the property of Armstrong Homes located adjacent to
Respondent's facility. They discussed the union representa-
tives' visit the previous day, and the benefits union repre-
sentation would offer. They then discussed the benefits Re-
spondent offered?5 Hulings said Respondent would increase
wages, and they could have better benefits paid holidays.
vacation, and a hospitalization plan. Hulings then asked
each employee individually whether they wanted to be rep-
resented by the IUnion. They all answered no.'
According to Hulings, immediately thereafter he re-
ported the results of his polling of' the employees to Branch.
Branch said everything was fine, he thought that was the
way it would go. Branch said the way business and things
were going, he saw no reason why they' could not have a
very comfortable. nice shop, everyone happy. and take care
of the raises and everything he had promised. Branch testi-
fied in substantial agreement with Hulings. though not in as
much detail. He did not deny any of' Iulings' testimony in
this regard.
All dates herein are in 1978 unless otherwise indicated
2 Commencing with April 9 and continuing until his termination. Hulings
was an admitted supervisor.
Hulings is unsure as to whether he was superintendent at the tinle of this
incident. Employee Thomas Widener testified that it was just after ulinigs
became superintendent, and it would seem from the discussion he had with
Branch on this same day that he was probably superintendent. In the cir-
curnstances. I find that this incident occurred alter April 9.
4 Branch testified that this was Hulings' suggestion Hulings adntsi that t
probably was.
Branch testified that he benefits at that time were six holidays Memo-
rial Day. Iabhor Day, Thanksgiving. Christmas, New Years. and the employ-
ees' birthdays along with a tree birthday lunch or dinner and rom 2 days
before Christmas to 2 days alter New Years with pay Neither Beaver em-
plo,ed by Respondent since April. nor Putter, employed b Respondent fior
aboul 3 years. recalled that many paid holidas. Pottller testified that Ithe did
receive about 10 days off with pay at Christmas
6This is rom the testimony of' ulings. and employee, IIhomas Widener
and Hulings.
1018
It & I ' I \IIN(,
In June. union represenlailss agi;ifl IllappiIIIachedlt Rc1 ')Ipon-
dentl's eriplo \,s. All ol the eniploces. exept Onie llho A;
on leave of absence. attllended a meeting with union repre-
sentatives around June IS. litilings ;sas also present. I he
next day, Iluilings ililrled Branch of Ihe meetiing ccord-
ing to Ilulings. Branch was ver, aligrs and intriucted I1ll-
ings to tell the employees he ;lnlted to speak I tlhem noI
later than 4 p.m. that day.
Branch did meet with the employh es later tha day. Ac-
cording to titluings. Branch threatened to close thie shop if
the union talk did not stop. Branch said there soultd he
increases in pay, vacations, paid holida;ls and hoslpitali;a-
tion insurance. Iie then told titulings to get on the ball a.lnd
get the hospitalization straightened out.' Branch also said
he would close the shop and anyone votlng union would he
blackballed and would not get a job in the trl-cities.'
E mployee Thomas Widener testified that Branch said lie
knew the employees had a meeting with somlie union repre-
sentatives, that he was not going to go union, he would
close his doors first. IEmploee Richard Beaver testilied that
Branch said this was his shop and he was not going to let
anyone take it away from him, that the nion as not
particularly interested in the employees. they wanled their
sign in front of the building. According to Bea er, Bran;ch
also promised that they would have paid holiday s, paid a-
cation, and a hospitalization plan.
According to Branch. he explained that most of Respon-
dent's jobs were under contract and he was locked in by the
contract as to the money he received for the job, and there-
fore, union representation could break Respondent. liHe said
he did not understand, he felt bad that a month earlier they
had said they did not want to go union, but it was getting to
the point where the harassment' and organizing was almost
continuous and he was getting upset with that.
Branch further testified that he said he feld Respondent
had good benefits and the employees were being taken care
of. He said Respondent had been a close-knit company and
asked what they needed or wanted from Respondent. lie
explained that Respondent had about $500.000 worth of
bids outstanding, that the bids were based on the current
average wage, Respondent did not have a large cash re-
serve, and if the labor cost had to be changed, it would be
financially disastrous. He also said Respondent was a non-
union shop and he would like to remain nonunion.
Hulings, Beaver, and Widener testified that they do not
recall Branch saying anything with regard to not being able
to get jobs if his cost was too high. Hulings admits that
Branch did explain the bidding process. that the low bidder
got the job.
Both Hulings and Branch testified that Branch had earlier instructed
Hulings to secure hospitalization coverage. According to Hulings it was 2 or
3 months after he became superintendent. According to Branch. it was in
mid-April. According to Hulings, although they discussed it earlier, he does
not think Branch instructed him to secure a hospitalization plan until June
Hulings admits, however. that it was pnor to June l0. and that on around
June tO, Branch questioned him as to why he had not secured such coverage
When Hulings did not follow through on these instructions. Branch had his
secretary do it
Tri-Cities refers to the Pasco, Kennewick, and Richland area.
By harassment, Branch testified, he meant union representatives on the
job almost every day, interrupting work.
Rcspontideli secutred hospillailatio cerage o ahoul
.1lle If. accoridiing to IB11anch. ' Responden, t p.idt hal; f ti 1e
ipreni'ut and1 tle clnplosNees paid hall. II ligs tstltied thl;l
the insurance lmntin as deducted ol his p o tile
itl time Lurin g 111he psrol p eriI ll Iune r tIlhrtiI tilune
21.
()On Augul l 8 and 19, all of Respsolltdcllt's enlplo ,c lI tCle
cardsl designating tlie 1li a1 s thil CIIollet c-b;arligaini
representativ e. ()n August 14, Respondent receised a let-
tet fllol the inion requeisting retoglnition .and encloslng
copies of thit autthorizationl cards igiled b% thle Clmlo ecs
Brinchl imlediaely conlionled I luilings and ;Isked t hc
signled an i autl orizatio cI m;ard. I luliings said IIc did. BIn Itch
said. "Well. sti can ito Ilotger fuIction cltectisel i tlis
shop. I Ithings inquired 1I hat ';s becat'ui e siatgned( tlhe
atlhorl/aoltio card. raiich said . You can no longer file-
lion clecTcciel\ . Yu are through." luling, lurned i his
kess and picked tip 1his, I(-ycar old son, .Itales Scott. Iront
the jobhite wherC he wsas su OrkinIg.
Bcascr testified thi alterl sork, on ugl lt 14. Branch
aisked hlnl iI lle was stile lie satted to be ICpllecllcd b tile
tinion, it li e was sture wfhat he S is diilg. e:Vs er said he
was not sure.
On August 15, Branch held a meeting of al;l cimplh\) es.
Widener testified that Branich said he kne, the had igned
union authorization cards. thIit he was surprised at sonllle il
them hecause they had been with hini fr awille Brianclh
also said Respondent was running out olf v ork. that there
was not enough work for eerone. lie said he was laNing
off lyrone Riggle and l.ynn I.awhon, that he had to start
from the bottom of the seniority list." lie asked them to
report back every day to see i there was aln work. Riggle
got upset and left. After he left, Branch said Respondent
was not going to go union, that he would close his doors
first.
Beaver testified that Branch said the workload had
dropped, he did not have enough work for everyone and
would have to lay people offl le laid ofl L.awhlit and
Riggle. Riggle got upset, hut Beaver does not recall what
Riggle said or i he left the meeting early. Branch also said
that if they decided to bring the Union in, he would close
the shop and fix t so none of them could find a job in the
Tri-Cities area.
James Scott Hulings testified that Branch said work was
slowing down and he had have to lay off people according
to seniority. He said there was not enough work for La-
whon and Riggle and they were being laid off. Riggle said
what if I went someplace else and worked. Branch said he
would want -week's notice if Riggle got another job.
Riggle said, you did not give me a week's notice that you
were laying me off. Branch said, if you do not give me I-
week's notice, I will make sure you do not get a job in the
tri-cities. Branch also told Lawhon and Riggle to check
back the next week to see if there was more work. Branch
further said they should not have signed the union authori-
10 According to Branch. Respondent had previously had such coverage but
it was discontinued ahut a ear earlier because of lack or work and lasoffs.
" The cards were solicited b Fl ulings
u According to Hulings. he did not want his son io he insm,.red in ans
repercussions. James Scout Huhings relurned to work, howeer. the next das
11 I i undisputed that Riggle and l.awhon had the Iowest seniority.
I(11)
I)t (ISI()NS ()I N 1 I)NAI AB()R RI IA I IONS l()\ARI)
zation cards. that it would he to their henclil not 11 vote
union and if' they did vote union he would close the shop
According o .S. Ilulings. Branch did not says anNthiln Ito
the elcct "I' Ioui go union I'll see ou don't el anlther
job."
Riggle testitied that Branch said business was slacking
off, he did not have enough work to keep them us ainti
would have to start laying off by seniority. Ile said he was
laying off Riggle and l.awhon temlporarily. Branch then
said he wanted a; week or 2-wecek's notice helore anone
quit, that if they did not give such notice, he would call all
the other plumbing shops in the area and tell theil w hat
bad workers they were. Riggle asked why should thel give
Respondent 2-week's notice when the layolff'just caute out
of the blue. Branch said it was his shop andl he couldl do
what he wanted, no matter what. Riggle asked it Blranch
wanted them to report back. Branch said yes. Riggle asked
ift' they should telephone. Branch said no, I want you to
come down tomorrow. According to Riggle. Branch did not
mention the Union.
Hulings testified that Branch said work was slowing
down, and he would have to lay certain people off hby se-
niority. He said Riggle and L.awhon would be laid off that
day, but that they should report the next day to see if there
was any work. Riggle became upset and asked why he was
being let go because he thought there was plenty of work.
Riggle said he could get another job quickly. Branch said
he wanted a week's notice or he would make sure Riggle
would not do any plumbing in the Tri-Cities again. Riggle
and Lawhon left. Branch said none of this would be occur-
ring if it wasn't for all the Union involvement.
Branch testified that after Hulings' termination, he had
the bookkeeper prepare a seniority list. According to him,
regardless of what had happened. Respondent was reaching
a point where it was out of rough-in work and an antici-
pated job was not yet ready to commence so there would
have to be some layoffs. At the meeting. according to
Branch, he said he did not want to lose any of them, so he
thought the fairest way was to lay off first the last persons
hired." He said their union activity didn't bother him, he
did not care about it, he did not want to see anyone go.
Branch further testified that he said he would do every-
thing possible to see that everyone had work for as long as
possible. Branch said he was laying off Lawhon and Riggle.
Riggle asked about him getting another job. Branch said he
did not think the layoffs were permanent and asked if he
could have a week's notice. He further said Respondent had
a contract for a 214-unit apartment job for which he was
waiting, that the only other work was a few sparse houses.
Branch admits that at one of the meetings he may have
said "if the shop goes union, I'll close it down." However,
he claims it was always in the context of explaining that if
they went union, there was a good chance Respondent
would go broke because it was locked in on prices, and
because of competition from nonunion shops. lie also ad-
mits that he said he did not want to go union, that his father
had a nonunion shop and he wanted to keep this one non-
union, he wanted the control over the Company. Branch
14 Branch testified that in previous years he has laid off hby seniorily.
denies silling I you go unionl. I'll see that sou novel get
aliother ioh in the ri-('itics.
Iater that da1 Branch laid o .IS lluligs. Ihe I ,non
filed represenltaltion petitlion ln AIugUtM I. Responldenl
tile one in t .ugust 16. Suhbsequently n election was sced-
uled or Septenlbier 12. he eleclio was held as schedule(d
but w as litter vacalcd.
When Iawhon and RIggle reported iI on)1 Aglsl )16.
Branch old hem there was no wuork ;lnt] to reporl the tirsl
of the next week. Respondent's bookkeeper. l indl; Ilutil-
rickhouse. tesmified that oil this saitie dali, laihon a;tsked
lel how long tile lay;o(l' woutld be. She Naid ',le did not
know. Il awhn slaid he could l nolt it. hi hld to a;s. i job.
so lie uwas qutlillg.
()It Ilis of tilhat week, when J.S. [tilinigs canle o ick
up his check. he wias told to urll to wuork tIhe tilltliulg
Monday. lie id ;and conrtinluedJ Ito wrk tiltl] school
started.
Ilulings testified that a ew d;lvs attel lie layol,: ill a
conves;llation between him. Branch, and I.anno. Br;inchi told
I.annlo that Ice did not want him ivolved in Ills boat an;,N-
more" because of his involvement with the 1nion.
I'he next eek. I;.awhon and Riggle reported to Branch
ais directed. according to Riggle's uncontradicted testini)lly.
Branch inloirmed hinm that the lavyoff was permanent and
others would be laid off. A day or two later Riggle asked
Branich to sign a layoff slip which he needed for the unenm-
ployment oice. At that time, according to Riggle Bratinch
said they could have made it a lot easier on themselves, that
he could go out and find work if he wanted to but he wasn't
going to let his shop go union, so he wasn't going to look for
any' work.
On Monday of that same week, according to Hulings
Branch asked him why he wanted to go union. Flulings said
he thought it was best for the shop. Branch said Hulings
was not thinking about the secretaries and all the other
employees that would be put out of work because Respon-
dent would never go union, he would close the shop first.
Paul l.anno was laid off on August 23.
Widener. Beaver. and Hlulings testified that during the
week preceding the September 12 representation election.
Branch told them he was giv ing Widener a $3-an-hour
wage increase. Beaver $ 1.50 and Ilulings $2.50. Beaver had
received a 50-cents an hour raise about a week earlier. l.at-
er that day, he told them he would have to reduce the wage
increases to 50 cents an hour because it would be out of the
ordinary and the Union might come back on him claiming
that the raises were a bribe to vote against the Union.
Branch testified that around September 7 he talked to
several employees about giving them wage increases. This
was in response to their stating at one of the meetings that
they would like wage increases. lie offered Potter and liul-
ings $2 an hour increases. He also offered Widener and
Beaver increases but cannot recall the amounts. Later that
day. according to Branch. he called his attorney with regard
to some other matters. During the course of' the conversa-
tion. he mentioned to the attorney that he u'as going to
increase wages and asked if that presented any problems.
15 I.anno ilsas doing some work on a racing boat sponlsored hs Responden
tie continued sork on the hoat after hi, Ilasoff
1020
BI & I 1'1 NlBIN(
When he stated Ihl alount inrees the inlcreases the iltorney
said that i mnight he a prohlc1m, that It mighi appear thlat
the increases were larger than thes should he or were possi-
bly a bribe. St, he reduced tie amounllt of' the wlge Increa ses
and gave each of theml a wle Increase of' () cents ;in hour.
B. (' Iioi'ii,,
The testimony of I ulings and the emplo ee witnesses as
to the April meeting is mutually corrobhorative and I find
that a composite of' their teslimons more accturatels reflects
what occurred at that meeting. As ndicated ahbove. I find
that Hulings was superinlendent at the time of the meeting.
Thus, Respondent is bound h his conduct.
Accordingly I flind that atl lha meetiLng Respondent
promised emnployees wage increases paid I ac;llon paid
holidays, and hospitaliza;lion insurance cov erage n order to
induce them to withhold or withdr iw their support from
the Ulnion in violation of Section 8ta)l I) of the Act. In
reaching this conclusion, I have fully considered Respon-
dent's argument that it was already giving employees paid
holidays and a paid acation at (hristmas. It is apparent
that Respondent had never before announced these benefils
to many of the employees and, in context. it is further ap-
parent that the statements were made in terms of offering
the employees an increase in benefits.
I further find that since the polling of the employees as to
their desire for union representation was done without the
safeguards required by StruAisnes ('onstruction ('o., Inc., 165
NLRB 1062 (1967), Respondent thereby' violated Section
8(a)( I) of the Act. Direct Image Corporation o/' New York, a
Subsidiar, of Direct Image Corporation, 233 NRB 365
(1977).
Much of the testimony as to statements made by Branch
at the June and August meetings is uncontradicted. Branch
does not deny that at the June meeting he again promised
wage increases, paid vacations and paid holidays. He ad-
mits he promised hospitalization insurance. Since the meet-
ing was called in response to the organizational eHffrts of
the Union on the day before. it is apparent that these prom-
ises was made in order to induce employees to withhold or
withdraw their support from the Union. Accordingly, I find
such conduct violative of Section 8(aX I) of the Act.
Branch admits that he threatened to close the shop rather
than go union. I do not credit him that this was stated
strictly in the context of the economic problems he antici-
pated if there was an increase in labor costs. In this regard,
I note that in April, according to Hulings' undenied testi-
mony, he told Hulings he would close the shop before he
would go union, the employee witnesses testified in mutual
corroboration that he said. without qualifications. that he
would close the shop rather than recognize the Union. And
finally, Branch admits he made the statement in anger.
which makes the threat seem more probable than the pic-
ture of cool rationality he attempted to convey in his testi-
mony.
Hulings testified that Branch also said anyone voting for
the Union would be blackballed. Hulings impressed me as
an honest reliable witness whom I credit in this regard.
Accordingly. I find that Respondent violated Section
8(a)(I) of the Act by threatening to close its shop rather
than recogniz le teL ni(o aI th e collc Ct ic-balg;iIIg rUpre-
sentative of its employees and h theiIenling il;ll allo)lle
votingi for the UIlion would he hlickballed lnit (oLIUld no1
get a;nother jobh in the 'I rl-(ltics.
II the contest of Respondent's carleil IIlIil coindtiut and
that oill Augustl 5I and later. I lin that Respolllilic11 Inter-
rogation o Beaver on AIigtll 14 is to his union lc{tlites
and sympathies and his ubsequent nterrogation ol Il-
ings was coercive, in violation of Section (a ( I o the Act.
WVith one exception, the testililn\ ot elmploce wl ncIsIes
as to the August 15 meeting is mluiuilA corroboratic. ihe
exception is that some employees recall BIraich sn111g at
the August meeting that anlone oilig Ior the I llon
would not be able to get a joh in the I rl-( 'itics ()ther cni-
ployes state that Branch did not sa\ that. but rather lieh
said he AOould blackball ;in\1 laid-olil CIlploscl who did lot
gi ve hilni a t;eek's notice hefre t akimn aniother oh
I credit those emplovtes, including Rggle. shol testificd
that he made the latter statement. Since he was speciticall
addressing his remarks to Riggle. I conch iid thlat Riggle
would he more ikel'> to recall what was sid in this regard.
particularly since he is corroborated hby other eniphloces. I
further note that the employees who testified that lie said
the would be blackhalled i they voted for the nioni at-
tended the June meeting and such a statement wXas madc a
the June meeting.
Branch does not den 5y that he said none of this woulId hc
occurring if it was not fior the employees' involerinent with
the I 'nion, or that he said they should not have signed the
union authorizAtion cards. These statements are clea;rlx co-
ercive. Accordingly. I find that Respondent violated Section
8(a)(l) of the Act by Branch's statements at the August 15
meeting that he would close the shop rather than recognize
the Union. would see to it that laid-off employees could not
get jobs in the r-Cities if they took another job while 1on
layof' without giving Respondent a week's notice, that none
of this would be occurring if it were not for their union
activities. and that they should not have igned union au-
thorization ca;rds.
Respondent also violated Section 8(a) I ) of the Act by
Branch's testimon that he did not want l.anno working on
his boat because of his involvement with the Uinion. and his
statement to Riggle that he could have found work i he
wanted to. but he was not going to let his shop go union so)
he was not going to look for work. Both Riggle and H-ulings
impressed me as honest reliable witnesses and their testi-
mony in other regards is corroborated. I credit their testi-
mony as to the above statements.
The complaint alleges that Respondent granted wage in-
creases on about September 7 for the purpose of persuading
its employees to refrain from union activities. Respondent
contends that it was merely following its past practice of
frequent wage increases as employees progressed in skills.
However, although Respondent did give some employees
frequent wage increases in the past. it followed no specific
plan and the increases were generally less than $1 an hour.
Respondent specifically argues as to fHulings, that he re-
ceived a large increase because he had recently secured his
temporary license and thus was worth more to Respondent
because he could legally work alone. However. Hulings
credibly testified that he did not receive his license until
Ill21
I)I ('ISIONS ()1 NAI I()NAI. I.AB()R R I.A I(ONS ()ARI)
after the representation election. Potter also received a large
increase and Widener was told that he would received an
even larger wage increase. Yet, the record does not establish
that either of them had lust received a license. Considering
the illegal promises of wage increases, the size of the in-
creases, the fiact that Respondent had no specific wage plan
and the timing 5-days prior to the representation election I
find that Respondent granted the wage increases in order to
induce the employees to withdraw their support from the
Union and thereby violated Section 8(a)( I ) of the Act.
I further conclude that once Respondent's attorney
pointed out the transparency of this conduct, Respondent
tried to undo its error by reducing the increases to an
amount arguably consistent with past practice. However, in
so doing, Respondent attempted to place the onus of such
action on the Union which constitutes a violation of Section
8(a)( I) of the Act.
The complaint also alleges that Riggle, I.awhon, and
Lanno were laid off because of their union activities. Re-
spondent argues that most of its employees are involved in
doing rough-in plumbing and there is little overlap in func-
tions between rough-in and finish work (installing fixtures)
as they require a different set of skills. As of early to mid-
August, Respondent contends the rough-in plumbing on its
two large jobs was almost completed, it had little other
work to do and a large job which it had anticipated would
start in August was delayed until late September or Octo-
ber. Accordingly, since it did not have enough work, it laid-
off employees with the lowest seniority.
It is undisputed that the rough-in work on the two large
jobs were near completion. However, Hulings testified that
at the time of his termination there was considerable other
work to be done and work coming up in the future. Branch
stated that he maintains a job control book which lists all
its jobs, the dates of the various stages of completion, etc.
Yet, Branch's testimony as to the available work was vague
and Respondent failed to produce the job control record
which would have given precise information, thereby sup-
porting an inference that the record, if produced, would not
support Branch's testimony in this regard. Pacific Grinding
Wheel Co., Inc., 220 NLRB 1389 (1975); Mid Slates Sports-
wear, Inc., 168 NLRB 559 (1967).
Nor did Branch testify with any specificity as to the in-
formation he had on August 15 as to when the new job
would commence. As of August 6, he apparently thought
there would be sufficient work since Riggle threatened to
quit if he did not receive a raise of $3, he gave Riggle a $2-
an-hour raise. Riggle was hired on July 23. At that time
Branch told him he would start him at $7 an hour, give him
a $1 raise in 30 days and an additional $2-an-hour raise
after 60 days.
However, regardless of any decrease in available work,
the statements made by Branch clearly indicate the illegal
motivation for the discharges. Thus, at the August 15 meet-
ing, after Riggle and Lawhon left, Branch told the other
employees that the layoffs would not be occurring if it were
not for their union activities, that they should not have
signed the authorization cards. Later, when Riggle asked
him to sign a layoff form for the unemployment office,
Branch told him they could have made it a lot easier on
themselves, that he could have found work but he was not
going to let his shop go union so hlie wss not going I look
for work.
Ihese statements coupled with the lact that Branch or-
dcred the seniority list prepared and made the dccision to
lay ol some employees immediately alter receiving the
Union's demand for recognition, and in view of Respon-
dent's other illegal conduct, establishes that Respondent de-
cided to, and did. layoff Lawhon and Riggle in retaliation
ior its employees authorization of the Union as their collec-
tive-bargaining representative.
Since Respondent was still engaged in its campaign to
destroy the Union's majority when Lann i was laid oil. I
conclude that he was also laid off because of the employees'
union activities. Accordingly, I find that I.awhon. Riggle.
and l.anno were laid off in violation of Section 8(a( l) and
(3) of the Act.
(O( ItSIO(NS )I lAW
I. Respondent is an employer engaged i commerce
within the meaning of Section 2(2). (6., and (7) of the Act.
2. The Union is a labor organization within the metaing
of Section 2(5) of the Act.
3. By laying off' employees lyrone Riggle, L.ynn l.a-
whon, and Paul Lanno because of their union activities,
Respondent has engaged in unfair labor practices in viola-
tion of' Section 8(a)(3) and ( I ) of the Act.
4. By polling employees regarding their membership in
or sympathies for the Union without observing the objec-
tive safeguards required by the National l.abor Relations
Board to assure the protection of rights guaranteed to em-
ployees under the National Labor Relations Act, as
amended; by promising employees wage increases, hospi-
talization insurance, paid holidays. and paid vacation in
order to induce them to withhold or withdraw their support
from the Union; by granting employees wage increases and
instituting a new hospitalization insurance plan in order to
induce employees to withhold their support from the
Union by coercively interrogating employees as to their
union sympathies and activities: by threatening to close its
shop rather than recognize the Union as the collective-bar-
gaining representative of its employees; by threatening to
blackball employees if they voted for union representation;
by threatening to blackball laid-off employees if they fail to
give a week's notice before taking another job while on
layoff; by telling employees that they or fellow employees
would not have been laid off if they had not engaged in
union activities; by telling employees that it would have to
rescind portions of wage increases because of the Union,
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not otherwise violate the Act as al-
leged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
10()22
B & L PLUMBING
Having found that Respondent had laid off Trone
Riggle, Lynn Lawhon, and Paul Lanno in violation of Sec-
tion 8(a)(l) and (3) of the Act. I shall recommend that. to
the extent it has not already done so,'6 Respondent offer
each of them immediate and full reinstatement to their for-
mer positions or, if those positions no longer exist, to sub-
stantially equivalent positions. without prejudice to their
seniority or other rights and privileges; and make each of
16 t was stipulated that Respondent made an offer of reinstatement to
Riggle requesting his return on September 25. No evidence was adduced as
to whether this was a valid offer of reinstatement and therefore. that question
will be left for resolution at the compliance stage of proceeding
them whole for any loss of pay suffered by reason of' the
discrimination against them with interest thereon to be
computed in the manner prescribed in F. W'. 'Wolvsortrh
Comnpan). 90 NLRB 289 (1950). The General Counsel seeks
a remedial interest rate of 9-percent per annum on the mon-
eys for which Respondent is liable for the violations in-
volved herein. The Board recently rejected that argument.
W:. Carter M1a¥t'xhell d/h/a Pioneer Concrete Co.. 241 NIRB
264 (1979). Accordingly. I recommend that interest herein
be computed in the manner set rth in Florida Steel Corpo-
ration. 231 NLRB 651 (1977).''
[Recommended Order omitted from publication.I
" Isis Plumbing & Heating Co. 138 NLRB 716 19621.
1023