Budget Heating & Air Conditioning

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 199 (N.L.R.B. 2001)

BUDGET HEATIING & AIR CONDITIONING 199
Budget Heating and Air Conditioning, Inc. and Sheet
Metal Workers’ International Association, Local
Union 15, AFL–CIO. Case 12–CA–20312
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
On October 30, 2000, Administrative Law Judge Par-
gen Robertson issued the attached decision. The Re-
spondent filed exceptions,1 and the General Counsel filed
an answering brief.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and answering brief and has
decided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order as modi-
fied.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Budget
Heating and Air Conditioning, Inc., Tampa, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.

1 No exceptions were filed to the judge’s recommended dismissal of
the allegations that the Respondent violated Sec. 8(a)(1) of the Act by
threatening employee Thomas Carey during a July 12, 1999 telephone
conversation, or by threatening Carey and employees Thomas Dancy,
Joel Mason, and John Vaughn with discharge for engaging in union
activity. Also, no exceptions were filed to the judge’s conclusion that
the Respondent did not violate Sec. 8(a)(3) by discharging Carey.
2 In his answering brief, the General Counsel moved to strike the Re-
spondent’s exceptions, asserting a failure to conform to Sec.
102.46(b)(1) of the Board’s Rules and Regulations. Although the Re-
spondent’s exceptions do not conform in all respects to the Board’s
Rules, we find that they are not so deficient as to warrant striking,
particularly in light of the Respondent’s pro se status. See generally
A.P.S. Production/A Pimental Steel, 326 NLRB 1296, 1297 (1998)
(“The Board typically has shown some leniency toward a pro se liti-
gant’s efforts to comply with our procedural rules.”).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997). We shall also substi-
tute a new notice to employees that includes expunction language inad-
vertently omitted by the judge.
“(a) Within 14 days from the date of this Order, offer
Thomas Dancy, Joel Mason, and John Vaughn full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
“(b) Make Thomas Dancy, Joel Mason, and John
Vaughn whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.”
2. Substitute the following for relettered paragraphs
2(e) and (f).
“(e) Within 14 days after service by the Region, post
at its facility in Tampa, Florida, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 2, 1999.
“(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
333 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT tell our employees that they must re-
frain from engaging in union organizing activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Sheet Metal Work-
ers’ International Association, Local Union 15, AFL–
CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s
Order, offer Thomas Dancy, Joel Mason, and John
Vaughn full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Thomas Dancy, Joel Mason, and John
Vaughn whole for any loss of earnings and other benefits
resulting from their discharges, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Thomas Dancy, Joel Mason, and John
Vaughn, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.

BUDGET HEATING AND AIR
CONDITIONING, INC.

Thomas Brudney, Esq., for the General Counsel.
Rodney K. Taucher, for the Respondent.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. A
hearing was held in Tampa, Florida, on August 31, 2000. The
charge was filed on August 17, amended on November 22,
1999, and amended on January 11, 2000. At material times
Respondent has been a Florida corporation with an office and
place of business in Tampa. During the past year, in conducting
its business operations, Respondent derived gross revenue in
excess of $500,000; and purchased and received goods valued
in excess of $50,000 at its Tampa facility directly from points
outside Florida. Respondent has been an employer engaged in
commerce within the meaning of the National Labor Relations
Act (the Act), at all material times. At material times the Charg-
ing Party (the Union) has been a labor organization within the
meaning of the Act. Rodney Taucher, Rick Osbourn, and Brent
Green were supervisors and agents at material times.1

1 Respondent admitted the commerce, labor organization and super-
visory allegations.
The complaint alleges 8(a)(1) and (3) unfair labor practices
by Respondent threatening employees with unspecified repri-
sals, informing employees it would be futile to select the Un-
ion, threatening employees with discharge, and discharging
Thomas Carey, Thomas Dancy, Joel Mason, and John Vaughn,
because of its employees’ union activities. All four employees
alleged herein worked for Respondent at its Hawthorne Retire-
ment Center job until July 12, 1999. Thomas Carey testified
that Brent Green and Tanya Satistaban interviewed him in late
June 1999. Carey started work the next day.
Thomas Dancy applied for work with Respondent on July 2.
Respondent’s president, Rodney Taucher, interviewed him.
Taucher told Dancy that he was not familiar with Dancy’s pre-
vious employers and Dancy replied those were union compa-
nies. Taucher said that would not be a problem, as long as
there’s no organizing activity around. Taucher did not deny that
he made that comment to Dancy.
Thomas Dancy testified that he was with Carey, Mason,
Vaughn, and the foreman, Dave Miller, during breaktime on
Friday, July 9, when they all discussed organizing activity.
Carey, Mason, Vaughn, and Dave Miller signed union authori-
zation cards that day. Dancy signed a card the following day.
That afternoon Miller told Dancy that Dancy would have to
supply his own ladder, power cords, power tools, etc. for his
work.2
Thomas Carey testified that about 2 weeks after he started
working for Respondent, he was told that the Company wanted
him to get his own ladder. Carey said that he was not going to
buy a ladder. Dave Miller3 said the Company was going to use
the ladders from the Hawthorn Retirement Center on another
job in 2 weeks and that Carey would have to get a ladder or a
ladder would be provided and deducted from Carey’s paycheck.
Dave Miller mentioned to Thomas Dancy again on Monday,
July 12, that Dancy was required to have a ladder. Dancy said
that he could not just yet because he needed to catch up on
some bills. Miller also told Thomas Carey to phone the office
while at work on July 12.
Carey called the office and spoke with General Manager
Rick Osbourn. According to Osbourn’s testimony, Carey
phoned Osbourn regarding Carey not having a ladder. Osbourn
had not met Carey before that phone call. Osbourn told Carey
that unless he supplied his own ladder, the Company would
supply one for him and deduct the cost from Carey’s pay.
Carey asked Osbourn whether Osbourn had the authority to
make him buy a ladder. Carey said that Osbourn couldn’t tell
him that he had to buy a ladder. Osbourn asked Carey to come
to the office in order to discuss the matter face-to-face and
Carey refused. Osbourn asked a second time for Carey to come
in the office but Carey refused. Osbourn told Carey that he was
fired.
2 Although all four alleged discriminatees testified, the subject of
Respondent telling employees to supply their own tools came up only
during the testimony of Carey and Dancy. There was no testimony
showing whether Respondent said anything to Mason and Vaughn
about supplying ladders or other tools.
3 Miller was not alleged as a supervisor.
BUDGET HEATING & AIR CONDITIONING 201
Carey testified about the phone conversation with Osbourn.
He testified that after Osbourn told him he would have to get a
ladder he asked Osbourn what would happen if he refused to
get a ladder and Osbourn replied that he would be fired because
he was on his 90-day probation. Carey replied that he had not
been told that he was on probation. Carey testified that he then
asked Osbourn, “[W]hat if we, you know, were to organize a
union, that way we wouldn’t have to buy a ladder.” Osbourn
replied that Carey would not be organizing any union, that
Carey was fired. Carey replied that Osbourn had not hired him
and that if he wanted him fired he would have to send someone
out there personally. Osbourn gave the phone to Rodney
Taucher. Taucher told Carey that he was the owner of the
Company and that Carey was fired, to get his tools and things,
and get off his job. Carey told Taucher that they would have to
personally come out and fire him.
Rick Osbourn testified on rebuttal that nothing was said
about organizing a union until after he told Carey that he was
fired. Osbourn denied that he knew anything about union activ-
ity before he fired Carey.
Carey returned to work after his July 12 phone conversation
with Osbourn. Supervisor Brent Green came on the job about
30 or 40 minutes after the phone call. Green told Carey that he
had pissed off the number two man and to get his tools and get
off the job. Carey asked if he was being fired because he
wanted to organize a union or because he wouldn’t get a ladder.
Green told Carey to call it what he wanted, that “we’re not
going to deal with the Union and you won’t be organizing on
this job site.”
At that time Thomas Dancy asked, “[W]e’re not allowed to
organize, and we can’t organize a Union?” Green asked Dave
Miller who was Dancy and Miller replied that Dancy was an
employee. Green said to Dancy, “[I]f you want to organize,
you’re out of here, too, okay?” John Vaughn asked what’s this
that the employees had a right to organize. Brent Green said,
“[O]kay, anyone else who wants to organize, you’re all fired,
just get off of my job.” Some other conversations occurred
outside Carey’s hearing. Carey asked if he could have some-
thing in writing saying that he was fired for organizing and
“[t]hey said I was not fired for organizing, that I was fired for
insubordination, and the rest of the guys had quit because they
had abandoned the job.”
Thomas Dancy testified that he heard a loud conversation
around 2 p.m. on Monday, July 12, on the Hawthorne Retire-
ment job and he walked over where Thomas Carey was talking
to the supervisor. He overheard Supervisor Brent Green men-
tion that there would be no union out here. Dancy told Green
that it was illegal to let someone go for organizing a union.
Green looked at Dancy and asked who he was. Dave Miller
replied that Dancy was an employee. As Miller and Green
started to walk away Dancy said, “[W]ait, stop, you can’t do
that.” Brent Green turned and pointed his finger at Dancy and
said, “I don’t like this guy either, let him go too.” John Vaughn
spoke up and said, “[W]ait, you can’t do that, we have a right to
organize a union out here.” Green said, “[F]ine, if that’s the
way all of you feel about it, you are all being let go as of now.”
Vaughn was called to testify by Respondent. He testified that
Brent Green told him “to his face” that he was fired. Vaughn
recalled that Green said, “[A]s far as he’s concerned, we’re all
fired, and that was me and one other guy that was left.”
Joel Mason is Thomas Carey’s brother. Mason knew about
Carey phoning the office regarding buying a ladder. Around 30
to 45 minutes after lunch, Brent Green came on the job and got
into it with Carey. Mason overheard Carey say, “[W]well, I
don’t want money taken out of my check, you know, for a lad-
der.” Brent Green said that Carey was fired. Carey said, “[S]o
I’m fired about a ladder or organizing” and Green replied,
“[C]all it what you want.” Thomas Dancy then walked up and
asked Green what do you mean we’re fired for organizing.
Green asked Miller who Dancy was and Miller replied Dancy
was an employee. As Green walked away he said to Dancy,
“[W]ell, you’re fired, too, and then anyone else who wants to
organize, you’re out of here.” Mason asked Carey if that meant
that he was fired and Carey said, “[Y]eah, that means you’re
fired.”
Brent Green testified after being called by the General Coun-
sel, that he received a radio call from Rick Osbourn on July 12
around noon to go to the Hawthorne Retirement Center and
make sure that Thomas Carey was removed from the job.
Carey was working on a ladder when Green arrived. Green
asked Carey what he had done and Carey said it must have
been the phone call with Rick. Green then told Carey that he
was supposed to leave the job. Shortly after that Carey started
talking about union rules. Thomas Dancy, Joel Mason, and
John Vaughn gathered around talking about union rules. Green
replied that he did not know anything about union rules, that he
had never been a member of a union. Green admitted that he
eventually called the sheriff to make sure all four alleged dis-
criminatees left the premises because he felt things were getting
out of control. Under examination by counsel for the General
Counsel, Green admitted that after telling Carey to leave he told
Thomas Dancy that he could leave too if he wasn’t happy
working there.
Green denied telling any alleged discriminatee that he was
fired. Instead he told Thomas Carey that he was supposed to be
off the job.
I. CREDIBILITY
There are several material conflicts in testimony. On July 12,
Rick Osbourn talked to Thomas Carey over the phone and their
testimony differs on material points. I observed their demeanor
and I have considered their testimony with demeanor and the
full record in mind.
I was bothered by Carey’s demeanor and testimony. His tes-
timony seemed to hit all the right spots. For example even
though Osbourn told him that he could be fired if he refused to
buy a ladder, Osbourn did not actually discharge Carey accord-
ing to Carey’s version, and Carey said to Osbourn what if we
organize a union. By that testimony, Carey showed that Re-
spondent decided to fire him only after he brought up the Un-
ion. Osbourn, on the other hand, testified that Union did not
come up until after he fired Carey. I am convinced that Os-
bourn’s version of the phone conversation comes closer to the
truth and I credit his testimony in that regard.
There were conflicts in the testimony of Carey, Dancy, Ma-
son, Vaughn, and Green regarding events on the job on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
afternoon of July 12. Of all those witnesses I was most im-
pressed with Joel Mason’s demeanor and I credit his testimony
of that incident. Carey, Dancy, Mason, and Vaughn disputed
Green’s testimony to the effect that he did not fire anyone on
July 12. However, Green did testify that he phoned the sheriff
to make sure that the four alleged discriminatees left the prem-
ises and he admitted telling Dancy that he could leave if he was
not happy working there. In view of my observation of his de-
meanor and the full record, I am convinced that Green was not
truthful in his testimony that he did not discharge any of the
alleged discriminatees on July 12. However, in view of the full
record, I am also not convinced that Thomas Dancy truthfully
testified about the incident on July 12. He testified that after
going over toward a loud conversation, he heard Green say that
Carey was being discharged for organizing and that there would
be no union out here. That testimony does not agree with any-
one else including Green, Carey, and Mason. Carey came clos-
est to Dancy’s version in testifying that Green said, “[W]we’re
not going to deal with the Union and you won’t be organizing
on this job site.” I am convinced that the accounts by Green,
Carey, and Dancy are incorrect. Instead I shall rely on the tes-
timony of Joel Mason. Mason testified that after Carey asked
Green if he was fired over a ladder or organizing, Green said,
“[C]all it what you want.” Then as Green started to walk away
he told Dancy, “[W]ell, you’re fired, too, and then anyone else
who wants to organize, you’re out of here.”
Finally, there is a question of credibility regarding a prehear-
ing affidavit. Respondent’s president testified in a prehearing
affidavit that he interviewed Thomas Carey and that Carey told
him that he was a member of the Union. After considering the
full record including testimony by Carey, Dancy, and President
Taucher, I find that it was Dancy but not Carey that told Rod-
ney Taucher his previous employers had been union companies.
Taucher testified at the hearing that despite his affidavit, he was
unsure of its correctness in view of Carey’s testimony showing
that Brent Green and Tanya Satistaban, rather than Taucher
initially interviewed Carey. I find that Taucher was in error
when he gave the affidavit and the record shows that he did not
interview Thomas Carey.
II. FINDINGS
A. The 8(a)(1) Allegations
1. Rodney Taucher
Rodney Taucher interviewed Thomas Dancy. During that in-
terview Taucher said that he was not familiar with Dancy’s
prior employers and Dancy replied they are union companies.
Taucher said that would not be a problem, as long as there’s no
organizing activity around. Taucher did not deny that he made
that comment to Dancy.
In effect, Taucher said that you may work here if you don’t
organize for the Union and he implied that Respondent would
take corrective action if Dancy did engage in union organizing.
The Board has consistently held that comments similar to the
one made to Dancy, constitute a violation of Section 8(a)(1) of
the Act. Drilling Mechanical Contractors, 318 NLRB 1140
(1995); VJNH, Inc., 328 NLRB 87 (1999). I find that is the case
here.
2. Rick Osbourn
The General Counsel alleged that Rick Osbourn threatened
Thomas Carey during their July 12 phone conversation, that it
would be futile to choose the Union as representative. How-
ever, as shown above, I do not credit that testimony by Carey. I
find that the General Counsel failed to prove that allegation.
3. Brent Green
Paragraph 7 of the complaint alleged that Brent Green
threatened employees with discharge if they engaged in union
activity. As shown above I do not credit testimony of Thomas
Carey. Carey testified that he asked Brent Green if he was be-
ing discharged for refusing to buy a ladder or for organizing a
union and Green replied, “[C]all it what you want to. We’re not
gonna deal with the Union and you won’t be organizing on this
job site.” Brent Green testified that the three other alleged dis-
criminatees crowded around him and started talking about un-
ion rules. Joel Mason testified that he heard Carey ask if the
was discharged about the ladder or union organizing and that
Green replied, “[C]all it what you want.”
I credit the testimony of Joel Mason. In view of that credited
testimony I find that Green did not say, “[Y]ou won’t be orga-
nizing on this job site.” In view of that determination there was
nothing in Green’s response to Carey’s question that supported
the allegation that Green threatened the employees with dis-
charge if they engaged in union activity.
B. The 8(a)(3) Allegations
There are situations in which an employer may discharge
employees in order to interfere with a union organizing cam-
paign. After fully considering the record and making credibility
determinations, I am convinced that was not the case in the
discharge of Thomas Carey. Despite that fact that Respondent’s
president, Rodney Taucher, told Thomas Dancy that his prior
work for union companies wasn’t a problem as long as there
was no organizing, there was no showing that Respondent
knew of any organizing activity before Carey was discharged.
It is true that Foreman Dave Miller discussed organizing with
all the alleged discriminatees and actually signed a union au-
thorization card on Friday, July 9, but Miller was not alleged as
a supervisor and that matter was not fully litigated.4 Moreover,
nothing was said during Taucher’s interview of Dancy to cause
Respondent to suspect that Dancy may actually engage in orga-
nizing. The mere fact that Dancy had formerly worked for un-
ion employers does not establish that Respondent knew or sus-
pected that he would engage in organizing activity. The hiring
of Dancy tends to show just the opposite. Why would the presi-
dent of the company hire Dancy if he strongly opposed union
organizing and suspected that Dancy would engage in union
organizing activity?
Counsel for the General Counsel relied on the prehearing af-
fidavit of Rodney Taucher that Carey told Taucher of his union
membership. However, as shown above, the full record shows
that Taucher was mistaken in that affidavit and that the em-
ployee he interviewed and talked to about union companies was
actually Thomas Dancy. Therefore, the record does not show

4 The General Counsel did not argue that Respondent gained knowl-
edge of organizing activity through Dave Miller.
BUDGET HEATING & AIR CONDITIONING 203
that Respondent learned of Carey’s union membership during
his employment interview. In fact the testimony of Thomas
Carey shows that was not the case. Counsel for the General
Counsel then argued that Carey participated in organizing
activity along with the other alleged discriminatees, on July 9.
However, as shown above, there is no evidence that Respon-
dent learned of that activity. Finally, the General Counsel ar-
gued that Respondent learned of Carey’s union activity during
his phone conversation with Rick Osbourn, before his dis-
charge. As shown above, I credit the testimony of Osbourn
showing that the Union did not come up until after Osbourn
told Carey that he was fired.
In cases of this type I must examine whether the General
Counsel has proved a prima facie case showing that Respon-
dent discharged all or some of he alleged discriminatees out of
antiunion animus. Manno Electric, 321 NLRB 278 fn. 12
(1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981); cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
As to Thomas Carey I find that the General Counsel failed to
prove a prima facie case. The General Counsel failed to prove
that Respondent knew of Carey or any other employees’ union
activities, before it discharged Carey.
Moreover, the record established that Carey was fired for a
reason that was not connected with union organizing. Both
Carey and Thomas Dancy were told that Respondent would
require them to supply their own ladders or have the cost of
ladders deducted from their pay. Nothing in the record illus-
trated that the question of supplying ladders had anything to do
with the Union.
The credited evidence showed that Thomas Carey refused
from the very first suggestion, to either buy or have money
deducted from his paycheck for a ladder. In fact even Thomas
Carey’s testimony supports that evidence. Even if I considered
the discredited testimony by Carey, it is apparent that he was
argumentative and uncooperative in his talk with Osbourn. I
credit Osbourn’s testimony that Carey twice refused to come to
the office and discuss the matter face-to-face. Then, after Carey
was fired, he refused to leave the job. I find in agreement with
the testimony of Osbourn that he discharged Carey during that
phone conversation before Carey said anything about a union.
The General Counsel argued that Respondent treated Carey
in a disparate manner. However, that argument is misplaced.
An employer may discharge someone even if it treated other
employees differently, provided the motive for the discharge
was not protected activity. Here, the record shows that Respon-
dent had no knowledge of Carey being involved in union activ-
ity before his discharge. Therefore, regardless of whether Carey
was treated differently than other employees, the fact remains;
he was not discharged for activity protected under the Act. I
cannot conclude that disparate treatment illustrates that Re-
spondent used pretext in order to disguise an illegal discharge
when the credited evidence established that the employee was
actually discharged for another reason.
However, the evidence shows a different situation developed
after Brent Green came on the job to insure that Carey left.
While Green and Carey were arguing, employees Dancy,
Vaughn, and Mason questioned whether Green was discharging
Carey because Carey was trying to organize the employees.
The credited testimony of Joel Mason was, as shown above,
that Mason overheard Carey say, “[W]ell, I don’t want money
taken out of my check, you know, for a ladder.” Brent Green
said that Carey was fired. Carey said, “[S]o I’m fired about a
ladder or organizing” and Green replied, “[C]all it what you
want.” Thomas Dancy then walked up and asked Green what
do you mean we’re fired for organizing. Green asked Miller
who Dancy was and Miller replied Dancy was an employee. As
Green walked away he said to Dancy, “[W]ell, you’re fired,
too, and then anyone else who wants to organize, you’re out of
here.” Mason asked Carey if that meant that he was fired and
Carey said, “[Y]eah, that means you’re fired.”
Green admitted that he subsequently called the sheriff to
make sure the four employees were off the premises. I am con-
vinced that the employees reasonably believed they were being
discharged. The credited evidence proved that Green fired first
Dancy, then anyone else who wanted to organize, because of
their questioning whether he was firing Carey for union orga-
nizing. All four alleged discriminatees were questioning
whether Respondent was discharging someone because of ef-
forts to organize for the Union. That evidence proves prima
facie, that Respondent was motivated to discharge Dancy, Ma-
son, and Vaughn because of their talk about union organizing.
I am fully aware of the credited evidence showing that al-
leged discriminatee Carey first brought up union organizing as
a reason for his discharge and my finding that Carey was not
fired for that reason, plus the fact that alleged discriminatee
Thomas Dancy asked, “[W]hat do you mean we’re fired for
organizing,” before Brent Green made a hostile comment about
union organizing. I also am aware that despite Dancy’s remark,
Carey was not being fired for organizing. Nevertheless, the
comments by Dancy, Mason, and Vaughn were protected be-
cause they related to employees ability to engage in union or-
ganizing activity and the credited evidence proved they were
fired because they made those comments.
Moreover, the record failed to show that Respondent would
have discharged those three employees in the absence of their
union activity. Respondent took the position that it did not dis-
charge those three employees. Instead those three walked off
the job. As shown above, the credited evidence proved other-
wise. The credited testimony of Joel Mason proved that he,
Dancy, and Vaughn were discharged because of their com-
ments about union organizing and Respondent failed to prove it
would have discharged them in the absence of their protected
activity.
Finally, there may be a question of the employees’ conduct.
Here, Respondent did not allege that it discharged Dancy, Ma-
son, and Vaughn because of their conduct. Moreover, the re-
cord does not support a finding of misconduct. There was a
disturbance but there was no showing that anything was done
other than question Supervisor Green as to whether Respondent
was or could, discharge someone for organizing activity. Green
did phone the sheriff because “I was just trying to get—I was
just trying to stop what was kind of getting out of control.”
Moreover, Green did not feel the conduct justified discharge as
evidenced by his testimony that he did not discharge any of the
three.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
The full record illustrates that Thomas Carey was discharged
during a dispute over a ladder. He refused to leave the job and
Supervisor Brent Green was dispatched to insure that Carey
left. While there other employees questioned whether Respon-
dent was discharging Carey because of union activity. Green
reacted to those questions by telling the employees present they
were also discharged. Green phoned the sheriff to insure that all
four employees left the premises. Respondent proved that it had
actually discharged Carey for insubordination and that it would
have discharged him in the absence of his union activities.
However, the General Counsel proved that Respondent was
motivated to discharge Dancy, Mason, and Vaughn because
they questioned whether Respondent was discharging Carey
because of his organizing activity and Respondent failed to
prove that it would have discharged Dancy, Mason, and
Vaughn in the absence of those questions.
CONCLUSIONS OF LAW
1. Budget Heating and Air Conditioning, Inc. is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Sheet Metal Workers’ International Association, Local
Union 15, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, by telling its employee that union organizing
activity would not be permitted, has engaged in conduct in
violation of Section 8(a)(1) of the Act.
4. Respondent, by discharging Thomas Dancy, Joel Mason,
and John Vaughn, because of its employees’ protected union
activities, has engaged in conduct in violation of Section
8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally discharged
Thomas Dancy, Joel Mason, and John Vaughn in violation of
sections of the Act, I shall order Respondent to offer Dancy,
Mason, and Vaughn immediate and full employment to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions. I further order Respondent to make
Dancy, Mason, and Vaughn whole for any loss of earnings
suffered as a result of the discrimination against them and re-
move from its records any reference to the unlawful actions
against Dancy, Mason, and Vaughn and notify Dancy, Mason,
and Vaughn in writing that Respondent’s unlawful conduct will
not be used as a basis for further personnel action. Backpay
shall be computed as described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as described in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 5
ORDER
The Respondent, Budget Heating and Air Conditioning, Inc.,
Tampa, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling its employees that it will not allow the employees
to engage in union organizing activity.
(b) Discharging its employees because of their union activi-
ties.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, offer Thomas Dancy, Joel
Mason, and John Vaughn immediate and full employment to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions without prejudice and make Dancy,
Mason, and Vaughn whole for any loss of earnings and other
benefits suffered as a result of the discrimination against each
of them, plus interest, in the manner set forth in the remedy
section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to its unlawful discharge of Dancy, Ma-
son, and Vaughn, and within 3 days thereafter notify Dancy,
Mason, and Vaughn in writing that this has been done and that
the discharge will not be used against any of them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, and timecards,
personnel records, reports, and all other records necessary to
analyze the amount of backpay due under the terms of this or-
der.
(d) Post at its facility in Tampa, Florida, copies of the at-
tached notice.6 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BUDGET HEATING & AIR CONDITIONING 205
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 12 in writing
within 20 days from the date of this Order what steps the Re-
spondent has taken to comply.