Bosco Services

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 787 (N.L.R.B. 1977)

BOSCO SERVICES
Bosco Services and Carpenters District Council of
Houston and Vicinity a/w the United Brotherhood
of Carpenters & Joiners of America, AFL-CIO.
Case 23-CA-5970
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 9, 1976, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, both the Respondent
and General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief to
General Counsel's exceptions.
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.,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Bosco Services,
I The General Counsel has in effect 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
Dri 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.
We agree with the Administrative Law Judge that there was no violation
of Sec. 8(a)X3 and (I) of the Act in Respondent's discharge of Latural
Norris, but we do so on the ground that the General Counsel failed to
sustain his burden of proof that Respondent was unlawfully motivated and
do not rely on the rationale advanced by the Administrative Law Judge.
2 In the absence of exceptions thereto, we adopt pro forma the
Administrative Law Judge's dismissal of the 8(a)(3) allegations concerning
the discharges of Douglas and Donald Cherry and all the 8(a I ) allegations
except those pertaining to the interrogation of Norris with respect to his
support for the Union.
Member Murphy agrees that Respondent has violated the Act by
unlawfully interrogating employee Norris. However. inasmuch as all other
allegations have been dismissed, she deems the single violation as isolated.
and therefore would not adopt the remedial order recommended by the
Administrative Law Judge. (Carolina 4mneri-an T7evtils. Inc, 219 NLRB 457.
fn. 1 1975)
232 NLRB No. 124
Houston, Texas, its officers, agents, successors. and
assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Hlouston.
Texas, on July 21, 1976, and was thereafter continued on
August 17, 1976, upon a complaintI issued by the General
Counsel of the National Labor Relations Board and an
answer filed by Bosco Services, hereinafter sometimes
called the Respondent. The issues raised by the pleadings
relate to whether or not the Respondent violated Section
8(a)(l) and (3) of the National Labor Relations Act. as
amended, by acts and conduct hereinafter specified. Briels
received from the General Counsel and the Respondent
have been duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses. I
hereby make the following:
FINDINGS OF FACT
I. PRELIMINARY MATI ERS
(Commerce, Jurisdiction, and Labor Organization)
The complaint alleges, the answer admits, and I find that
(1) the Respondent is engaged at Houston, Texas. in the
business of packing and exporting various types of oil field
equipment; (2) during the past year the Respondent
purchased and received in excess of $50,000 worth of goods
and materials in interstate commerce; and (3) the Respon-
dent is an employer within the meaning of Section 2(2) of
the Act, and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The complaint also alleges.
the answer admits, and I find that Carpenters District
Council of Houston and Vicinity, hereinafter called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
IL. THE UNFAIR LABOR PRACTICES A I.IE(iEI)
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by (I) interrogating its employees
concerning their union activities; (2) promising its employ-
ees a substantial pay raise to cause them to refrain from
union activities; (3) creating the impression that the union
activities of its employees were kept under surveillance;
I The complaint in this case was issued on Jult 2. 1976. upon a chargi
filed on March I 1976. as amended on March 5. 1976. and topic, ot h1e
charge and the amendment were duly served on the Respondent.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (4) threatening its employees with discharge if they
joined or gave assistance or support to the Union. The
complaint also alleges that on or about March 3, 1976,2 the
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging its employees Donald Cherry, Douglas Cherry,
and Latural Norris. By its answer, the Respondent
generally denies that it has engaged in any unfair labor
practices, but at the hearing contended that Donald and
Douglas Cherry voluntarily quit their employment, and
that Latural Norris was discharged for cause.
A. The 8(a)(1) Allegations
Douglas and Donald Cherry, who are twin brothers,
were hired by the Respondent in October 1975. The Cherry
brothers were initially hired as laborers, but were later
promoted to leadmen in the Respondent's No. 2 ware-
house. During most of the period relevant to this case
Douglas and Donald Cherry were assigned to work on the
Hunt account under the supervision of Robert Hackney,
packing. crating, and preparing four aircraft control towers
for shipment to Saudi Arabia. Hackney's entire crew for
this account consisted of no more than three regular
employees, supplemented from time to time by casual
laborers. On the Hunt account Douglas Cherry worked
outside the warehouse and his brother worked inside, both
assisted, as necessary, by casual help.
The record does not clearly establish a date when the
Union first undertook to organize the Respondent's
employees. Documentary evidence reflects that the Cherry
brothers and employee Latural Norris signed authorization
cards for the Union on January 27. David E. Davis, the
Respondent's plant manager, acknowledged in his testimo-
ny that he became aware of the Union's organization
campaign on January 23, when the Union Agents Kettler
and Cortez visited his office.
Douglas Cherry testified that he first became aware of
the Union's activities at a series of meetings at a grocery
store located some distance from the Respondent's place of
business. According to Douglas Cherry there were 25 to 30
such lunchtime meetings, plus others after work; he talked
to other employees about the Union, drove them to
meetings, and met with Kettler and other union officials.
Except for the designation of the date on which he signed
an authorization card, Douglas Cherry's testimony lacks all
pertinent detail with respect to the dates of the union
meetings or other activities, and there is no identification of
any other employees with whom he engaged in contacts
concerning the Union. Douglas Cherry did testify that, at a
time he described as mid-February, he saw Supervisor
Robert Hackney get out of his car in front of the grocery
store.
The General Counsel contends that Hackney's presence
at the grocery store violated Section 8(a)(l) of the Act
because it created the impression that the Respondent was
keeping its employees' union activities under surveillance.
- All dates recited hereinaller are in 1976, unless specified to the
.onlrary.
Hackney admitted in his testimony that he visited the
grocery store at lunchtime on infrequent occasions, saw
most of the employees on these occasions, and may have
seen the Cherry brothers at the grocery store one or more
times. In the light of this limited evidence I find a total lack
of merit in the General Counsel's allegation of impression
of surveillance. From the record as a whole it is apparent
that the grocery store was a place customarily frequented
at lunchtime by some or all of the Respondent's employees,
and similarly frequented for lunch purposes by some of its
supervisors. There is no evidence that the employees were
engaged in any union activities while Hackney was present,
that any union officials were present, or that Hackney
would have recognized them if they had been present. The
most the evidence supports is the conclusion that both the
employees and Hackney were engaged in routine lunch-
time activities, and I will recommend that this allegation of
the complaint be dismissed.
Douglas Cherry also testified that, during the first week
in February, Hackney approached him about the Union.
With more detail Cherry stated that Hackney came up and
said, "Look, I hear you guys have been passing out union
cards." Douglas Cherry denied the accusation; Hackney
replied, "OK," but added as he walked away, "Look, if you
keep passing them out, O.K., you are going to wind up
getting fired. We don't want you to pass them out on
company time .... We want you, you know, go ahead
and do it after work hours."
Donald Cherry partially confirmed the testimony of his
brother by corroborating testimony that on February 14,
near the close of the workday, Hackney took aside the
Cherry brothers and another employee and said, "Hey, you
guys, what's happening [is] everything cool." Then calling
specifically to Donald Cherry, Hackney whispered in his
ear, "Hey, I heard that you and your brother been passing
out these cards." Donald Cherry responded, "What
cards?" Hackney replied, "These union cards [and] if I
catch you passing them out on the job you are going to be
fired."
Hackney acknowledged as a witness for the Respondent
that in November 1975 he called aside all three of the
employees working under his supervision and cautioned
them that they would be fired for passing out cards on
company time.
I find that there are substantial variations in the
testimony of Douglas and Donald Cherry concerning the
allegations that Hackney threatened to fire them for
passing out union cards, and I accept as more credible the
version related by Hackney. Even if, on the contrary,
however, I accepted the versions related by the Cherry
brothers, it would not support the allegation of a threat of
discharge for union activities. It is clear, even from the
testimony of Douglas Cherry, that Hackney's admonition
was limited to passing out union cards on company time. It
is axiomatic that worktime is for work, the General
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BOSCO SERVICES
Counsel has not proved that the Respondent permitted
other nonwork activities during working hours, and it is
clear that the employees were told that they were free to
pursue their union activities on their own time. According-
ly, I find that Hackney's statement to the employees did
not constitute an unlawful threat. Neither do I find, as the
General Counsel argues, that Hackney's instructions to the
employees to limit their union activities to nonworktime
created the impression of surveillance in violation of
Section 8(a)( ) of the Act. Accordingly, the incident will be
considered herein as only some evidence of the Respon-
dent's awareness, or suspicion, that the Cherry brothers
were engaged in union activities.
Douglas Cherry also testified that on January 23, in
company with his brother and employee Clara Patterson,
he was called into the office by Richard Tate, the
Respondent's general manager. Tate talked about putting
up posters concerning the Union, and then asked Douglas
Cherry how he was going to vote. Cherry replied that he
did not know.
The complaint alleges that, on February 2, Richard Tate
interrogated employees concerning their union activities
and desires. There is no evidence of any interrogation by
Tate on February 2, or any other date, and I find the
record evidence insufficient to establish any unlawful
interrogation by Tate. Douglas Cherry acknowledged that
his brother Donald was present at the Tate interview, but
Donald Cherry was never questioned about the incident.
Employee Clara Patterson. testified, acknowledged that the
three employees were called to Tate's office, and further
testified that that meeting took place in March. According
to Patterson, Tate's comments were directed to packing
and crating; he did not interrogate either of the Cherry
brothers but did urge all the employees to vote in the
election. Tate corroborated the general substance of
Patterson's testimony as to the purpose of the meeting and
what was said. According to Tate he called the employees
in because the Cherry brothers were not performing their
work in a manner likely to eventuate in the completion of
the Hunt account by the target date, and because he
contemplated replacing the Cherry brothers as leadmen
with Clara Patterson. According to Tate, near the end of
the meeting one of the Cherry brothers attempted to ask
some questions about the Union, and Tate informed him
that his questions would be answered at a general meeting
for the employees scheduled for the following day. Tate
also acknowledged that the subject of the election did come
up, that he told the employees that voting would be by
secret ballot, and that he urged them to vote.
I do not credit Douglas Cherry's testimony that he was
unlawfully interrogated by Richard Tate on January 23, or
at any other time. For reasons further explicated below, I
find that Douglas Cherry was not a reliable and credible
witness, and I have credited his testimony only to the
extent it has been corroborated by other witnesses. Donald
Cherry was not questioned about the alleged interrogation
by Tate, and I find the versions of the meeting adduced
through Clara Patterson and Richard Tate to be the more
credible and reliable. Accordingly, I will recommend that
this allegation of the complaint be dismissed.
Donald Cherry related a further encounter with Plant
Manager Davis on February 18. Cherry was engaged in
unloading pipe for the Kellogg Company and was
instructed by Davis to talk to the Kellogg driver and ask
him what he thought about the Union. Cherry complied,
talked to the Kellogg driver, and reported back to Davis
that the driver said the Union was no good, "ain't worth a
damn." Approximately 30 minutes later, at a general
meeting of employees, Davis instructed Donald Cherry to
relate to the other employees what he had been told by the
Kellogg driver. Cherry relayed to the employees the
opinion of unions expressed by the driver from Kellogg.
The General Counsel has not alleged, and does not
argue, that the February 18 incident involving Plant
Manager Davis and Donald Cherry violated Section
8(a)(l) of the Act. The General Counsel does argue,
nevertheless, that the incident is evidence of the Respon-
dent's union animus. Accordingly, it has been so consid-
ered, and it is additionally considered herein as evidence
bearing on the Respondent's knowledge of the union
activities, sympathies, and interests of the Cherry brothers.
Robert Flores was employed by the Respondent from
February 2 until he was laid off on March 11. Flores
testified that, at a prehire interview on January 30, Plant
Manager Davis asked him if he had ever been in a union.
Flores replied that he had, and Davis asked him to express
his opinion on unions. Flores told him that he had been in
the Steelworkers Union when he worked for Chicago
Bridge and Iron, and that it was a very good union. Davis
then asked if Flores had ever heard of the Carpenters
Union, and in response to Flores' negative reply Davis
expressed a variety of reasons why the Carpenters Union
was no good. In addition, according to Flores, Davis asked
him to vote for Bosco, and promised Flores a substantial
wage increase. Davis further told Flores that if he passed
his polygraph test the Company would hire him.
On cross-examination Flores stated that he took the
polygraph test after his conversation with Davis on
January 30. However, when confronted with his prehearing
affidavit Flores admitted that the polygraph test had been
administered before his conversation with Davis about the
Union. Flores' prehearing statement also reflects other and
substantial variations from the testimony he gave as a
witness for the General Counsel. There is nothing in Flores'
statement to reflect that Davis asked him if he had ever
been in a union. Flores testified on cross-examination that
it was his opinion that Davis asked the question, and on
this opinion he volunteered that he had been in a union,
although not in the Carpenters Union. Similarly, contrary
to his testimony on direct examination, Flores' affidavit
does not contain any statement that Davis asked him if he
knew anything about the Carpenters Union.
As a witness for the Respondent, Davis acknowledged
that he interviewed Flores for employment, instructed him
to take a polygraph test, and reinterviewed Flores after the
test had been completed. Davis talked to Flores about what
would be expected of him as a packer, and explained the
Company's wage compensation program and other bene-
fits. Davis told Flores that he would be reviewed for a wage
increase in 30 days, and again after 90 days of employment.
Davis asked Flores about his past employment, and Flores
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he had previously worked in a union shop and
liked the benefits and wages. Davis responded, "That is
fine," and told Flores that he had previously been affiliated
with unions when he lived in Illinois. As Davis testified, the
discussion on Flores' future wage progression was centered
on the Company's policy, not on Flores' vote in the
upcoming election, although Davis acknowledged that he
did ask Flores to vote for the Company.
Upon all of the relevant and material evidence, I am
unable to find that Davis unlawfully promised Flores a
wage increase for his vote against the Union. Flores was
not a convincing witness, his testimony was evasive and
unresponsive, and there are substantial and unexplained
variations between his testimony as a witness for the
General Counsel and the contents of his prehearing
affidavit. Accordingly, I credit Davis' testimony that he did
not interrogate Flores about the Carpenters or any other
union, and did not promise Flores a wage increase as the
quidpro quo for Flores' vote against the Union.
Louis Broussard, Jr., was employed by the Respondent
on February II and was separated by the Company on
March I . On March 3 Broussard had been to the grocery
store for lunch where a union meeting had been in
progress. When Broussard returned to Warehouse No. I he
met Davis at the door and asked, "What are they saying in
the union meeting?" Broussard replied that he did not
know what they were saying.
Although he made no mention of it on direct examina-
tion, the record reflects that Broussard was not finally
separated from the Company on March I1. Initially on
cross-examination Broussard denied that he was subse-
quently recalled to his employment; he later admitted that
he was recalled at some later time, worked a couple of
days, and then voluntarily quit. Broussard admitted that he
had talked to Davis on numerous other occasions, which
Davis confirmed. Davis denied, however, that he talked to
Broussard about the Carpenters Union or about what was
said at any union meeting. Davis being the more credible
witness, I credit his testimony and find that the General
Counsel has not proved the allegation of unlawful
interrogation.
Latural N. Norris was employed by the Respondent as a
laborer and forklift operator from October 6, 1975, until he
was discharged on March 3. Norris testified that on a date
he could not recall, but which was established as late
February with some prompting from the General Counsel,
representatives of the Union passed out key chains in front
of the company premises. When Norris arrived at the plant
to clock in Plant Manager Davis saw Norris putting his
keys on the union key chain and asked if Norris was going
to vote for that damn union. Norris made no reply, but
continued on to his work station. Davis testified at length
in this proceeding, but was not questioned and did not
deny Norris' testimony concerning his confrontation with
Davis over the key chain and the ensuing interrogation.
Accordingly, I credit Norris' testimony.
B. The Alleged Discriminatory Discharges
Douglas Cherry testified that on February 26 he and his
brother were called to the office by Plant Manager Davis,
told that they were not getting the job done, and that they
would be transferred to Warehouse No. 1. Donald Cherry
testified that on February 26 Davis called them to the
office and told them they had been transferred to the other
warehouse and would no longer be leadmen. Donald
Cherry made no mention in his testimony that Davis
expressed dissatisfaction with the Cherry brothers' work,
and I find this to be the fact. From the record as a whole,
including the admission of Douglas Cherry, it is clear that
the Cherry brothers had completed the work they were
assigned on the Hunt account, and therefore were simply
transferred to other work.
It appears that the Cherry brothers began work at
Warehouse No. I on Monday, March 1, under the
supervision of David B. Frederick, who is sometimes
referred to in the record as Bruce Frederick. They were
assigned to wiping and crating pipe, assisted to some extent
by casual laborers. Contrary to their testimony, and based
on their timecards, I find that the Cherry brothers did not
report to work on Tuesday, March 2, but did resume their
jobs on the following day.
On March 3, according to the testimony of Douglas
Cherry, he, his brother, and some casual laborers were
assigned by Frederick to wipe pipes. Later, at a time
Douglas Cherry did not describe, a truckload of pipe
arrived in the warehouse yard, and Frederick told the
Cherry brothers to move some timbers on which the pipe
was to be stacked. According to Douglas Cherry, the
timbers were of oak in a dimension of 8 x 8 inches and 16
feet long. Douglas and Donald Cherry managed to move
one timber, complained to Frederick that the timbers were
too heavy, and asked for a forklift. Frederick replied that
no forklift was available, and in response to Douglas
Cherry's protest about the weight of the timbers stated,
"You, damn it, you bend down like this and pick the damn
things up." Frederick moved the timber slightly and told
the Cherry brothers, "Or else if you don't like it go and get
your damn checks." Douglas Cherry replied, "Well," and
Frederick answered, "Go and get your damn checks." The
Cherry brothers then went to the office where they met
Plant Manager Davis, who called them into the office, gave
them checks which were already prepared, and asked,
"What's the matter, you can't take it?"
Donald Cherry's version of the termination incident
conforms in most substantive respects with the testimony
of his brother. Like Douglas Cherry, Donald described the
oak timbers as 8 by 8 inches by 16 feet.
There is serious reason from the record to question the
version of events of March 3 as related by them as
witnesses for the General Counsel. On cross-examination
Douglas Cherry adhered to his testimony that the timbers
were 8 by 8 inches by 16 feet. However, confronted with a
statement given to a Board agent on March 5, Douglas
Cherry admitted that in the affidavit he had described the
timbers in the dimension of 6 by 6 inches by 9 feet. In a
later statement given to a Board agent on June 28, Douglas
Cherry characterized the timbers as 8 by 8 inches by 8 feet.
In spite of two prior statements given at a time when his
recollection was likely to be fresh, Douglas Cherry
persisted nevertheless throughout the whole course of his
testimony in adhering to the description of the timbers
which he initially recited on his direct examination.
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BOSCO SERVICES
Donald Cherry also gave statements to the Board's
agents, one dated March 5 and a second dated June 28. In
the first affidavit Donald Cherry described the timbers he
was directed by Frederick to move as 6 by 6 inches by 9
feet. In the second statement Donald Cherry described the
timbers as 4 by 6 inches by 7 feet. Donald Cherry's
statement of June 28 also relates that he and his brother
were directed by Frederick to move the logs on March 2, a
date on which his timecard reflects he was absent from
work. In addition, Donald Cherry's statement of June 28
contains the statement that Frederick handed the employ-
ees their paychecks, while the testimony of both brothers is
that they went to the office and were given their checks by
Davis.
Supervisor Frederick confirmed that the Cherry brothers
worked for him on Monday, March 1, were absent on
March 2, and last worked on March 3. According to
Frederick a load of pipe arrived in the yard during the
afternoon of March 3, and he asked the Cherry brothers to
move some timbers on which the pipe would be stacked.
Frederick described the timbers as 4 by 6 inches, and
varying in length from 8 to 12 feet in length. Frederick
testified that the Cherry brothers complied with his
instructions, but complained that the timbers were too big
to lift. The Cherry brothers asked for a forklift, but none
was available, so Frederick directed a couple of other
employees to assist in positioning the timbers. The timbers
were moved, Frederick unloaded the pipe with a forklift
and sent the Cherry brothers back to cleaning pipe.
In mid-afternoon the Cherry brothers approached
Frederick and told him that they had had it and wanted to
quit. Frederick told them to go see Plant Manager Davis
and that ended the conversation.
Plant Manager Davis testified that on March 3 he left his
office and met the Cherry brothers in the main part of
Warehouse No. i. They explained to Davis that they had
had it, were through, and had quit. Davis asked if their
supervisor was aware they had quit, and the Cherry
brothers responded that they had told Frederick the same
thing. Davis did not recall that he gave Douglas and
Donald Cherry any paychecks.
The General Counsel urges that the evidence that Davis
had prepared the paychecks and had them waiting when
the Cherry brothers arrived in his office is evidence that
their discharge had been predetermined, and was in no way
connected with the timber moving incident. I have small
reason to credit the testimony of Douglas and Donald
Cherry that Davis gave them any paychecks on March 3. If
he did, however, the paychecks were for a prior week, and
not for work performed during the period from March 1
through March 3.
In addition to the above evidence relating to the alleged
discharge of the Cherry brothers, there is the testimony of
employee Gwendolyn Holweger concerning a conversation
in early March with Plant Manager Davis. Holweger was
unable to recall when the Cherry brothers were discharged,
but testified that during a conversation concerning another
matter she asked Davis about the Cherry brothers.
Holweger offered no specifics of the particular question
posed to Davis, but testified that he replied that the Cherry
brothers had quit, and that they were behind all the union
business to begin with.
Davis acknowledged as a witness for the Respondent
that Holweger asked him why the Cherry brothers had
been separated from their employment with the Company.
Davis responded that the Cherry brothers left the Compa-
ny because they quit, but he denied in his testimony that
anything was said in the conversation about the Union or
the Cherry brothers' involvement. I credit Davis' testimony
as opposed to that proffered by Holweger. As a witness
Holweger was extremely short on responsiveness, and quite
the contrary in self-serving pronouncements. There is the
additional factor that Holweger was discharged by the
Respondent on July 15, for reasons which were not
adduced.
In summing up the case concerning the termination of
the Cherry brothers, I find that the record contains
sufficient evidence to warrant the conclusion that the
Respondent was aware, or had reason to suspect, that
Douglas and Donald Cherry were union supporters. Both
were admonished by Hackney about passing out union
cards on company time. In the February meeting with Tate
one of the brothers sought information, or attempted to ask
questions, about the Union. Proof of knowledge of union
activities is not, however, sufficient to support a finding of
discrimination within the meaning of Section 8(aX3) of the
Act. While there is some evidence of the Respondent's
union animus, it is minimal, and there is a substantial basis
for finding that the Cherry brothers voluntarily quit their
employment.
There are substantial variances in many respects in the
testimony of the Cherry brothers concerning the events of
March 3. Some of the variance is inherent in the record
testimony of the two employees, but a greater measure is
evident when their testimony is compared with the two
prehearing affidavits they gave to the Board. Two of these
variances are essential to the merits of this case-what were
the dimensions of the timbers Frederick demanded they
move, and who gave them their paychecks, if anyone at all.
The testimony of the Cherry brothers concerning the size
of the timbers is so widely varying that it is worthy of no
credit. Accordingly, I find that the testimony of Frederick
as to the dimensions of the timbers is the more likely, and it
is apparent that they were of a size and weight which two
adult males could move 15 to 20 feet without strain or fear
of injury. Similarly, the General Counsel places great
reliance on evidence that the Cherry brothers were given
final checks at time of their discharge. Their testimony is
that Davis gave them preprepared checks, but Donald
Cherry's prehearing affidavit reflects that they were given
their checks by Frederick at the time he discharged them.
Superimposed on the foregoing credibility resolutions,
there is additional evidence in the record to require the
finding that the Cherry brothers voluntarily quit their
employment with Bosco Services. There is the testimony of
three of the Respondent's agents, which I credit over the
denials of the Cherry brothers, that they had threatened to
quit their employment on at least two prior occasions
because they considered the work too onerous or because
they disliked the instructions given them by their supervi-
sors. In addition there is the issue of the timing of the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged discharges. If, as the General Counsel contends, the
Respondent had knowledge of the Cherry brothers' union
activities and was motivated to discharge them for this
reason, that knowledge and animus did not suddenly come
to the surface on March 3. A few days before, between
February 26 and 29, the Cherry brothers completed their
assigned work on the Hunt contract. If the Respondent had
been disposed to rid itself of the two union adherents, a
layoff or discharge at that time would have been an ideal
vehicle. Instead, however, the Respondent transferred
Douglas and Donald Cherry to other employment.
There remains for consideration the alleged discharge of
employee Latural Norris. Norris signed an authorization
card on January 27 and attended the daily union meetings
held at the grocery store. As reviewed above, sometime in
February Norris received a key chain from the Union and
shortly thereafter he was questioned by Plant Manager
Davis as to whether he was going to vote for the Union.
Approximately a week before his discharge Norris was
directed to take a polygraph test. According to Norris, the
polygraph operator asked him certain routine questions
and asked if he had ever stolen anything from Bosco
Services, or knew of anyone who had stolen from the
Company. Before the test was started Norris informed the
operator that he had taken seven paper towels from the
bathroom in Warehouse No. 2. According to Norris the
operator ran the polygraph test three times and informed
Norris that the tests indicated he was not responding
honestly to the questions of whether he stole from the
Company, or knew who was stealing from the Company.
On the day of his discharge Norris was told that General
Manager Tate wanted to see him in his office. Norris
testified that Tate told him that he had to pass a polygraph
test to work for the Company, that Norris did not pass the
test, and the test showed that he had taken seven paper
towels from the Company. Norris admitted he had taken
the paper towels and Tate replied, "Well, somebody got to
pay for those towels." Tate further discussed the results of
Norris' polygraph test while Norris remained silent.
However, as he testified, Tate told him that Norris "didn't
seem too concerned because [his] job was barely holding
on since all this union mess was coming on." Norris
answered, "Do what you got to do." Tate gave Norris his
check and, referring to the amount withheld said, "Damn,
what did they do to you."
On cross-examination Norris was asked if Tate told him
he was terminated for taking seven paper towels. Norris
answered that Tate told him he was discharged for stealing
paper towels. However, on further examination Norris
conceded that on March 4 he told the Board's agent that he
was laid off for taking seven paper towels, and this
information was incorporated in Norris' affidavit. More
particularly Norris' statement reflects, "Mr. Tate told me
that he was laying me off for taking seven paper towels on
February 23." Norris also admitted on cross-examination
that after he took the test, but before the discharge
interview, he was told by Plant Manager Davis that he was
not telling the whole truth, and would have to take the test
over because he was either doing the stealing or knew who
was.
Plant Manager Davis testified that beginning in Decem-
ber 1975 the Respondent instituted a policy of designating
certain employees for polygraph tests each month. In the
case of Latural Norris, however, Davis had been advised
by employee Clara Patterson that she believed that Norris
had taken something out of Warehouse No. 2. When the
results of Norris' polygraph test were returned to Davis he
informed Tate, but it was agreed that the matter would be
postponed until Davis talked to the polygraph operator
and exercised the opportunity to review the documenta-
tion. When this had been accomplished Norris was called
to the office and Tate asked him if he had stolen anything
from the Company. Norris made no reply and Tate
repeated the question. Norris replied affirmatively and
Tate discharged him. On cross-examination Davis ac-
knowledged that Norris admitted during the discharge
interview that he had taken paper towels, or admitted he
had taken something.
General Manager Tate confirmed that Davis told him
about the results of Norris' polygraph test to the effect that
Norris had admitted stealing from the Company. Tate
directed that nothing be done on the matter until the
examination had been returned from the polygraph
operator. When the results of the examination had been
reviewed Norris was called to Tate's office and told by
Tate that he had not passed the polygraph test and that the
polygraph examiner had told the Company that Norris
admitted stealing from the Company. Norris made no
reply, Tate asked if he had stolen from the Company, and
Norris replied "Yes." Tate expressed that he had no
alternative, handed Norris his paycheck, and made some
comment concerning the amount withheld from Norris'
wages. Tate denied there was any mention of paper towels
during the course of the interview.
I have found above that Latural Norris was unlawfully
interrogated when Plant Manager Davis asked him if he
was going to vote for the Union. The interrogation took
place while Norris was putting keys on a key chain with the
legend "Your UBC Union." Norris' possession of the key
chain coupled with his nonresponse to Davis' question
warrants the inference that the Respondent at least
suspected that Norris was favorably inclined toward the
Union. Since Davis did not testify with respect to this
episode there is no evidence to rebut the inference, and I
find the evidence establishes company knowledge. Not-
withstanding the evidence of knowledge, however, I do not
find that the General Counsel had proved that Norris was
discharged for reasons prohibited by the Act.
It is the General Counsel's contention that the polygraph
test administered to Norris was a subterfuge to create a
reason to discharge him, and that except for seven paper
towels Norris had not stolen any of the Company's
property. In the first instance I do not credit the entirety of
Norris' testimony, and because of the variances between
his testimony and his prehearing affidavit I reject the
evidence that Norris was told he was fired because he took
seven paper towels. In addition, there is no substantial
evidence in the record to support the contention that the
Company required Norris to submit to a polygraph test as
a device to mask an act of discrimination. The unrebutted
testimony of Davis is that a certain number of employees
792
BOSCO SERVICES
are periodically scheduled for polygraph tests, and his
testimony is supported by the testimony of employee
Robert Flores.
The General Counsel has proven knowledge of Norris'
union sympathies and has proved some animus, particular-
ly as a result of Davis' interrogation of Norris prior to his
discharge. The Respondent, however, contends that Norris
was discharged for cause, and there is evidentiary support
for the contention. If the results of Norris' polygraph test
were contrary to the evidence adduced through the
Respondent's witnesses, or if the facts surrounding the
administration of the polygraph examination were contrary
to those asserted, the burden of proof shifted back to the
General Counsel to produce the test or the polygraph
operator who administered it. In the absence of such
evidence the General Counsel has not sustained the burden
of proof.
In summary I find and conclude that, except for the
unlawful interrogation of Latural Norris by Plant Manager
Davis, the General Counsel has not proved the allegations
of the complaint.
THE REMEDY
Considered in the context of the scope of the complaint,
the issues litigated and the timespan covered by the
Union's organizing campaign, the single 8(a)(l) violation
found herein might well be described as both minimal and
isolated. Nevertheless, it is the Board's policy that acts of
interrogation require a remedy, and I shall recommend that
the Respondent be ordered to cease and desist therefrom
and post the customary notice to employees. 3
CONCLUSIONS OF LAW
I. The Respondent, Bosco Services, is an employer
within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Carpenters District Council of Houston
and Vicinity a/w United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating employee Latural Norris concern-
ing his intent to vote for the Union, the Respondent
violated Section 8(a)(l) of the Act.
4. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent has violated
the act in any other respect.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and
pursuant to the provision of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 4
The Respondent, Bosco Services, Houston, Texas, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from interrogating employees
concerning whether they intend to vote for Carpenters
District Council of Houston and Vicinity.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its facility at Houston, Texas, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by the Respondent's
authorized agent, shall be posted by it immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted, and
shall be maintained by the Respondent for 60 consecutive
days thereafter. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days of the date of this Order, what steps
have been taken to comply herewith.
3. All other unfair labor practice allegations of the
complaint are hereby dismissed.
3 (Carolina American Texriles. Inc.. 219 NLRB 457 (1975).
4 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.
5 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
WE WILL NOT interrogate our employees concerning
whether they intend to vote for Carpenters District
Council of Houston and Vicinity.
BOSCO SERVICES
793