Blue Hills Cemetery, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1977

229 N.L.R.B. 258 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blue Hills Cemetery, Inc; American Sales Corpora-
tion; and G.M. Ridge Corporation and Elliott Jens
Stennes. Case I-CA-11822
April 25, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 26, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief,' and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge inadvertently failed
to include a remedy section in his Decision. His
recommended Order, however, is in accordance with
our usual remedy for discriminatory discharge which
we find to be appropriate in the instant case.
Accordingly, we shall adopt his Order requiring
Respondent to offer Elliott Stennes immediate and
full reinstatement to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of earnings he may have suffered from the time
of his discharge to the date of the Respondent's offer
of reinstatement. The backpay for the foregoing
employee shall be computed in accordance with the
formula prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at the rate of 6
percent per annum as provided for in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). As set forth in
the Administrative Law Judge's recommended Or-
der, Respondent is required to preserve and upon
request make available to the Board or its agents
payroll and other records to facilitate the computa-
tion of backpay due.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
229 NLRB No. 49
modified below, and hereby orders that the Respon-
dent, Blue Hills Cemetery, Inc., Braintree, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
Substitute the following for paragraph 2(b):
"(b) Make Stennes whole for any loss of pay or any
benefits he may have suffered by reason of the
Respondent's discrimination against him, with inter-
est at 6 percent per annum."
' Respondent's motion to reopen the record is hereby denied as it is
lacking in merit.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. 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 relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held at Boston, Massachusetts, on
December 6, 1976, on complaint of the General Counsel
against Blue Hills Cemetery, Inc., here called the Respon-
dent or the Company. The complaint issued on July 29,
1976, on a charge filed on May 26, 1976, by Elliott Stennes,
an individual. The principal issue of the case is whether the
Respondent discharged Stennes in violation of Section
8(a)(3) of the National Labor Relations Act, as amended.
Briefs were filed by the General Counsel and the Respon-
dent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FCT
I. THE BUSINESS OF THE RESPONDENT
Blue Hills Cemetery, Inc., a Commonwealth of Massa-
chusetts corporation, has it principal place of business in
Braintree, Massachusetts, where it is engaged in the sale of
cemetery plots, vaults, and memorials, and in the operation
of a cemetery. Its annual gross volume of sales is in excess
of $500,000 and it annually purchases goods and materials
in excess of $5,000 from points located outside the
Commonwealth of Massachusetts. I find that the Respon-
dent is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Laborers International Union of America,
Local 133, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In May 1976, Stennes was I of about 20 employees of the
Respondent's cemetery. During the morning of May 17, he
258
BLUE HILLS CEMETERY, INC.
and three or four others talked of their conditions of
employment and Stennes suggested they consider being
represented by a union. Later that same day there was like
talk among a larger group of employees, including Stennes
and the first few, and there developed a broader consensus
to go union. Stennes was asked by the others to do
something about it. He telephoned the office of Local 133
of the Laborers International Union and asked Mike
Serrata, a business agent, how to proceed. Serrata advised
obtaining written authorization cards. Stennes asked could
someone from the Union come and speak to the group, and
Serrata agreed to send such a speaker.
During the next morning Robert Keating, the superin-
tendent who ran the entire operation on a day-to-day basis,
questioned at least three of the men - Stennes, Bruce
DeWolfe, and Thomas Ogle; he said he had heard
someone had telephoned the Union, asked was this true,
and added he would like to know who had done that.1
During lunch, still on May 18, the employees talked over
the matter for about half an hour as they ate. Many wanted
the union agent to come to speak to them. At or about
12:30 Keating, and his foreman - Mike Convoy, came
into the lunchroom and the discussion continued for over
15 minutes more. Stennes' testimony is that Keating told
the group he knew someone had called the Union but "that
he didn't think the union would do us as much good as we
thought it would. He said he knew of another cemetery that
had a union and that those people weren't making as much
money as we were. He said that if the Union came in we
would have no coffeebreaks. He also said that we would
have to eat our lunches out at the cemetery. He said there
would be more supervisors and that we would have to work
about five times as hard.... He also said that the
initiation fees were very high and that the company
wouldn't go for a union any way."
Stennes' testimony continues that an employee then
called for a show of hands as to whether the group still
wanted the union agent to come and give his lecture.
Stennes continued that he then "interjected that I had
already talked to all the men - all the men in the room
separately and that they were all for the business agent
coming down. .... So I said I had already talked to the
business agent and that he was going to come down."
The vote was not taken and at the close of the workday
Keating discharged Stennes. The complaint alleges the
dismissal was retaliation against the man because of his
prounion activities and was therefore an unfair labor
practice. Denying illegal motive the Respondent asserts
affirmatively that the work for which Stennes had been
hired was finished and that he was released strictly in
accordance with a prehiring agreement.
Ogle, one of the men also interrogated by Keating during
the morning, corroborated, in part at least, Stennes'
testimony as to what Keating told the men in the
lunchroom; "he said something, well something about the
fact, basically what he had said out to me in the cemetery.
That it may not be as rosy as you might think, about
I As a defense witness Keating was asked by company counsel had he
talked to individuals that morning "about the Union" and had he asked him
"What is this about the Union." Keating avoided any direct answer, and in
total effect did not deny the straight interrogation attributed to him by the
employee witnesses. His sole answer was as follows:
joining a union. He discussed some of the drawbacks that a
union might have." Ogle added that in Keatings' presence
Stennes mentioned the fact it was he who had telephoned
the Union.
DeWolfe is the third man questioned by Keating before
the lunchroom meeting. "He wanted to know what was
going on, because nobody had told him about it at the time
he approached me, I was working with John Maynard and
he asked if we knew anything about it. I don't remember
exactly if he mentioned union; but he wanted to know
what was going on."
Q. Did you ever overhear any conversation be-
tween Mr. Keating and another employee regarding the
union?
A. Well, just that he was afraid if it got in he
thought he might get phased out or something ....
He didn't want to have the union in, because he didn't
think it will be good for the cemetery .... He said he
would probably lose his job if the union got in ....
Just that if we had any problems to bring them to him
first. He made a reference to his dismissal, because -
you know, I don't know exactly how he meant it, but he
said if he was going down he wouldn't go down alone.
Keating denied having told anyone he thought he would
lose his job if there was a union, or ever saying the
employees would lose any benefits in that event. He said he
told the group at lunch to pursue the union idea if they so
wished, and that he had no objection to it. He added there
was much talk about pay raises that day, that that was the
"main issue." And then came the following directly leading
question from company counsel:
Q. You never told the employees anything about,
anything like that about the negative points about a
union?
A. We may have -well -
I credit the employee witnesses against Keating. I find
that he questioned them as to whether there was activity
among the men towards self-organization, and asked
Stennes who had started it all, and that by such interroga-
tion by the superintendent the Respondent violated Section
8(aXl) of the Act. I also find that Keating told the
assembled employees their working conditions would be
made more onerous by the Company if they chose to be
represented by a union, and thereby again violated Section
8(a)(1).
Violation of Section 8(a)(3)
Whatever Keating may have heard during the morning
of May 18 as to who the particular union activist was, he
certainly learned it was Stennes during the lunch gathering.
Stennes spoke up to stop the show of hands intended to
reveal the count as to how many favored the Union at all,
on the stated ground that the men had already indicated a
On that day and the previous afternoon I had noticed sort of a general
slowdown in the cemetery, a lot of unnecessary driving around; and I
questioned the people as to what, what was the problem. why there was
a slowdown. And at that time I was given very few answers.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prounion desire, and then even revealed it was he who had
called the union agent in the first place. The summary
discharge of the man only a few hours later, at the end of
the workday that same afternoon, without a word of
advance notice, on its face suffices to establish a causal
relationship between Stennes' now disclosed union activity
and the discrimination against him. Theprimafacie case in
support of the complaint is therefore clear. On the total
record, the superintendent's assertion, that Stennes had
been hired for only temporary employment and that the
precise work for which he was hired had been finished
exactly that day, is unconvincing and will not do to avoid
the compelling inference that the Respondent chose to
discharge him on May 18 only because of his prounion
activity.
Herman Verbeck, many years an employee of the
Respondent and a friend of Stennes, spoke to Keating
about Stennes looking for a regular job, permanent
employment, and not just temporary work. Keating's
testimony is that he agreed to talk to Stennes. Stennes
testified he spoke to Keating only once before starting to
work. "Bob Keating said there was plenty of work there
year round; and that if I was ambitious I would get raises
and I would also get uniforms after a specified length of
time." Keating, instead, said he talked to Stennes twice
before hiring him. According to him Verbeck told him
Stennes was looking for "permanent employment," and he
told Verbeck there was no position available. Keating
nevertheless talked to Stennes, (I supposed as a courtesy to
Verbeck) and told him, still as he testified, "we did not
have any permanent positions available at that time. And
he told me that's what he was looking for, and I just spoke
about the type of work we did and its nature, and that was
all that was said." Despite his admission of knowing
Stennes was only interested in regular employment,
Keating continued to testify that later he called Stennes
back, just before putting him to work on about April 19 or
20, and told him "that we did have a few weeks work if he
wanted to make some money."
While it is true this Company does hire employees in the
spring to work on what are called "winter graves," and
does not keep them permanently around the year, I still do
not credit Keating's testimony where it conflicts with that
of Stennes. However much he may have wanted temporary
people, it is a fact he knew Stennes was not interested in
such work. Had he really thought of offering such limited
work to the man despite his real desire, there is no
explanation of why he did not do so 10 days earlier; April 9
was already springtime when the winter grave work was
being done.
But Keating's credibility suffers more because of other
explanations he offered, assertions that on their face are
wanting. Besides Stennes others were hired at about the
same time, all for this "temporary work," according to
Keating. These were Ogle, DeWolfe, and Torney. Of the
four, Stennes was the first to be discharged; Ogle was
released the next day and the other two 3 or 4 days later.
Why was Stennes picked first? More significant, the very
day after releasing Stennes, Keating started hiring others
- also for "temporary work," as he said. There were five
men he hired, including Kilarn, Sweeney, and Oldsfield.
Faced with the inescapable inference that but for his
offending union activities Stennes would have been
retained at least as long as there was "temporary work" to
do, Keating then distinguished between one kind of
temporary work and another. He blandly said the new men
were hired to "mark" and "trim" graves, and not to reset
winter graves, as the earlier four men had done. And to
make his asserted defense more convincing he said the new
hires were high school boys. "I had people coming in in
May to do the other work of trimming and mowing that
was needed. These people were already - their employ-
ment was prearranged." In the end, Keating said he let all
the new men go by Memorial Day. This means the school
boys who came on May 19, the day after Keating was
released and the day Ogle was discharged - all by
prearrangement - only worked 10 or 11 days. This was
hardly summer employment of school boys scheduled in
advance of school closing "by prearrangement." The fact is
Keating called new men in right away because whatever
work he needed to have done - permanent or temporary
- simply was still there and for some reason he no longer
wanted Stennes - and maybe his friends - on the
premises.
Thus, the failure, in the total circumstances, of the
asserted defense of discharge for cause, together with
Keating's unlawful interrogation of employees, his direct
knowledge of Stennes' leading role in the union movement,
and the highly revealing timing of the events, conclusively
prove illegal motive in Stennes' release on May 18. I find
that by discharging Stennes the Respondent violated
Section 8(aX3) of the Act.
The very day after Stennes' discharge, Gerald Ridge, the
president of the Respondent, appeared at the cemetery and
spoke to all the employees assembled during the 3 p.m.
coffeebreak. One employee - a full-timer - said Ridge
had never done this before and has not done so since.
Ridge admitted at the hearing he went to speak to the
employees because Keating had told him of the union
movement and that most of the talk leading to it was about
pay raises. He spoke to them on that subject, explaining the
Company's economic resources, and telling the men the
superintendent would do what he could whenever possible
on the matter of raises. For the least, this unprecedented
act by the president serves to emphasize the fact it was the
union activity of the moment which explains the immediate
events, and not Keating's belated and unconvincing
explanation.
I also find that by interrogating employees as to whether
they were attempting to form a union, by questioning
employees as to the identity of prounion employees, by
telling employees they would be required to perform more
work under union conditions, and by telling them condi-
tions of employment would be more onerous if they chose
to be represented by a union, the Respondent violated
Section 8(a)(l) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
260
BLUE HILLS CEMETERY, INC.
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.
CONCLUSIONS OF LAW
i. By interrogating employees as to whether they were
attempting to form a union, by questioning employees as to
the identity of prounion employees, by telling employees
they would be required to perform more work under union
conditions, and by telling employees conditions of employ-
ment would be more onerous if they chose to be
represented by the Union, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
2. By discharging Elliott Stennes the Respondent has
engaged in and is engaging in unfair labor practices in
violation of Section 8(a)(3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 2
The Respondent, Blue Hills Cemetery, Inc., Braintree,
Massachusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Laborers International
Union of America, Local 133, AFL-CIO, or any other
labor organization of its employees by discharging employ-
ees or otherwise discriminating against them in their
employment conditions because of their membership in or
activities in favor of the above-named or any other labor
organization.
(b) Interrogating employees as to whether they are
attempting to form a union, questioning employees as to
the identity of prounion employees, telling employees they
will be required to perform more work under union
conditions, or telling employees conditions of employment
will be more onerous if they chose to be represented by a
union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form,join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their choosing, and
to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Elliott Stennes immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(b) Make Stennes whole for any loss of pay or any
benefits he may have suffered by reason of the Respon-
dent's discrimination against him.
(c) Preserve and, upon request, make available 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 recommended Order.
(d) Post at its place of business in Braintree, Massachu-
setts, copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by its
representatives, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the Federal law by discharging an
employee because he engaged in union activities and by
committing other illegal coercive acts:
WE WILL NOT discourage membership in Laborers
International Union of America, Local 113, AFL-CIO,
or in any other labor organization of our employees by
discharging any of our employees because of their
membership in, support of, or activities in favor of the
above-named or any other labor organization.
WE WILL NOT interrogate our employees as to
whether they are attempting to form a union.
WE WILL NOT question our employees as to the
identity of prounion employees.
WE WILL NOT tell our employees they will be
required to perform more work under union conditions.
WE WILL NOT tell our employees conditions of
employment will be more onerous if they chose to be
represented by a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights to self-organization, to join or assist Laborers
International Union of America, Local 113, AFL-CIO,
or any other labor organization, or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any and all such activities.
WE WILL offer Elliott Stennes immediate and full
reinstatement to his former position or, if such position
no longer exists, to a substantially equivalent position.
WE WILL pay Elliott Stennes for any loss of earnings
he may have suffered as a result of our discrimination
against him, plus 6-percent interest.
BLUE HILLS CEMETERY,
INC.
262