191 N.L.R.B. 167 (N.L.R.B. 1971)

City and County Electric Sanitary Sewer Service, Inc.

National Labor Relations Board - Board DecisionsJun 15, 1971

191 N.L.R.B. 167 (N.L.R.B. 1971)

CITY AND COUNTY ELECTRIC City and County Electric Sanitary Sewer Service, Inc. and Journeymen Plumbers Local Union No. 35, affi- liated with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada , AFL-CIO. Case 14-CA-5725 June 15, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On February 10, 1971, Trial Examiner Ivar H. Peter- son issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Deci- sion and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel.' The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner,' as modified below. The General Counsel has excepted to the Trial Ex- aminer's jurisdictional findings, and to the content of the notice required to be posted. We find merit to these exceptions. At the hearing the General Counsel subpenaed nu- merous witnesses, not all of whom appeared, to testify as to the value of the services provided to them by the Respondent. At the conclusion of this testimony the General Counsel requested the Respondent to comply ' The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. ' These findings and conclusions are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has ex- cepted. The Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence. Accordingly, we find no basis for disturbing those findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3) The Trial Examiner stated in his jurisdictional findings that the Respond- ent is a member of the Plumbing Contractors Association. In fact, the Respondent is not a member of that Association, but it does provide services to many firms which are members. ' In its exceptions, the Respondent alleges bias and prejudice on the part of the Trial Examiner. Upon a careful analysis of the whole record, we find nothing to support Respondent' s allegations . Accordingly, they are rejected, as lacking in meat. 167 with the subpoena duces tecum which the General Counsel had caused to be served. Although the Re- spondent had the records available at the hearing, it refused to comply with the subpena or with the request of the Trial Examiner. Thereafter, the Trial Examiner ruled, on the basis of our decision in Tropicana Products, Inc., 122 NLRB 121, that the General Coun- sel had met his burden of proving jurisdiction. We agree with this ruling of the Trial Examiner, and we assert jurisdiction here on that basis alone. We will also grant the General Counsel's request to amend the notice to conform to the 8(a)(1) and (5) violations found by the Trial Examiner, included in his recommended Order, but inadvertently omitted from his notice. Finally, the Trial Examiner found that the Respond- ent unlawfully refused to bargain with the Union at a time when it represented a clear majority of the em- ployees in an appropriate unit, while at the same time it engaged in conduct plainly designed to undermine the Union and destroy its majority status. We agree that this conduct violated Section 8(a)(5), and (1) of the Act, and find that the unfair labor practices were of such a pervasive character as to prevent the holding of a fair election and to require a bargaining order. N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 615-616. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as herein modified, and hereby or- ders that the Respondent, City and County Electric Sanitary Sewer Service, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as so modified. Substitute the attached notice for the Trial Ex- aminer's notice. APPENDIX B 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 trial, that we violated Federal law by question- ing employees regarding their union activity, creating the impression of surveillance of union activity, threat- ening to discharge employees to avoid dealing with a union, holding out the promise of benefits if employees abandon union activity, and by later discharging two employees because of their union activity: 191 NLRB No. 27 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Floyd and Jerry Bridgewater full reinstatement, and pay them for the earnings they lost as a result of their discharge, plus 6 percent interest. WE WILL NOT discharge or discriminate against any employee for supporting Journeymen Plum- bers Local Union No. 35, affiliated with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, or any other union. WE WILL NOT question any employee regarding his union activity, give the impression that em- ployees' union activities are under surveillance, threaten employees with discharge or other repris- als because of their union or concerted activities, threaten to refuse to deal with a union or to close the shop before we would deal with a union, or promise increased benefits if employees abandon union activities. WE WILL NOT unlawfully interfere with our employees' union activities. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with the above-named Union as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees at the Employer's Bel-Ridge, Missouri place of business, but excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act, as amended. CITY AND COUNTY ELECTRIC SANITARY SEWER SERVICE, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63102, Telephone 314-622-4174. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: I heard this case on November 2 and 3, 19701 in St. Louis, Missouri, upon a charge filed August 41by Journeymen Plumbers Local Union No. 35, affiliated with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called the Union, which resulted in the Regional Director for Region 14 issuing a complaint dated September 30, against the Re- spondent. Briefly stated, the complaint alleged that the Re- spondent violated Section 8(a)(1), (3), and (5) by coercive statements and threats, the discriminatory discharge of two employees, and by refusing to bargain with the Union. In its answer, the Respondent denied that it met the jurisdictional standards relating to commerce and denied the commission of any unfair labor practice. Following the hearing, and pur- suant to an extension of time granted at the request of the Respondent, counsel for the Respondent and counsel for the General Counsel filed briefs on or about December 18. These have been carefully considered. Upon the entire record in the case and from my observa- tion of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Missouri corporation, with its only office and place of business in the Village of Bel-Ridge, Mis- souri, is engaged in the business of furnishing sewer cleaning service. The Respondent is a member of the Plumbing Con- tractors Association of Metropolitan St. Louis, which negoti- ates and enters into collective-bargaining agreements on be- half of its members, with the Union. During the fiscal year ending June 30, the members of the Association purchased and caused to be transported and delivered at various jobsites within the State of Missouri goods and materials valued in excess of $50,000 obtained from points outside the State of Missouri. The Association, I find, is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Although the Respondent contends that it is not subject to the Board's jurisdiction and asserts that the dollar volume of its business during the fiscal year ending June 30 falls short of the Board's discretionary jurisdictional standards, I find, that during that fiscal year the value of the Respondent's services to concerns meeting the Board's jurisdictional stan- dards was in excess of $50,000. Accordingly, I find that the Respondent is engaged in commerce within the meaning of the Act and that jurisdiction should be asserted over it. I Unless otherwise indicated all dates refer to the year 197&. CITY AND COUNTY ELECTRIC 169 II THE LABOR ORGANIZATION INVOLVED The Union, Journeymen Plumbers Local Union No. 35, affiliated with United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of the Act. IIL THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion About the middle of July, Donald Summers, business rep- resentative of the Union, began organizing activity among the Respondent's employees. In this effort he was assisted by Floyd Bridgewater, one of the alleged discriminatees. Bridgewater signed a card on July 22 and the same day he obtained cards from three other employees.' Floyd Bridgewater delivered the signed cards to Summers the morning of July 24. That day Summers wrote and mailed a letter to the Respondent stating that the Union represented a majority of the employees and offering to prove majority a status by means of a card check conducted by some disinter- ested party. Summers also requested that the Respondent arrange for an appropriate date for the parties to begin bar- gaining conferences. On the same day Summers filed a repre- sentation petition with the Regional Office of the Board? On Friday, July 24, Floyd Bridgewater and his cousin, Leean Smith, were on a job together. About 3 o'clock in the afternoon they called the Respondent's office to report that they had finished the job. The office secretary and dispatcher, Virginia DeClue, gave Bridgewater a message to call Manager Albert Stilwell. Bridgewater telephoned Stilwell at his home and was told that Stilwell wished to see him at the office promptly on a very important matter. Bridgewater told Stilwell that he had a job to do at a location near Stilwe:l's home and that he,would stop there to see Stilwell. However, Stilwell instructed that Bridgewater should go to the office. When Bridgewater arrived Stilwell asked that the two go to the truck that Bridgewater had been driving so that they could converse alone. According to Bridgewater, Stilwell "asked me what I was doing with the men, that I was going around talking to them and stirring them all up, that I was trying to hurt the company. He said that he was just not going to have it. He said that he was going to start with me first and he was going to go all the way down the line if he has to and fire everyone of us." Bridgewater related that Stilwell said he was beginning with him first "because he got information that I was the head man and I was causing all the trouble.... " Stilwell, so Bridgewater testified, stated that he had returned a week early from his vacation because he "had gotten word" about the organizing activities and had returned "to get this all straightened out." Bridgewater testified that at first Stilwell stated that he was going to lay him off "until the Union blowed over" and then he would rehire him. About 8 a.m. on Saturday, July 25, Stilwell convened a meeting of all employees aside from Floyd Bridgewater. As employee Smith testified, Stilwell questioned the employees as to what improvements in working conditions they desired as a condition for withdrawing from the Union; in this con- nection Stilwell stated that he could not afford to raise his prices sufficiently to "go union" because the Respondent had too much overhead on trucks and equipment and threatened to close the shop. While this meeting was in process the office 3 His brother Jerry Bridgewater, Leean Smith, and James Hall; another employee, Mario lacona, signed a card on July 23. 3 This was later withdrawn. secretary brought Stilwell the registered letter from the Union, demanding recognition and bargaining. Stilwell ques- tioned the employees individually whether they had signed union cards. After reading the letter Stilwell hastily ended the meeting and told the employees to return to work. The following Sunday, July 26, Stilwell telephoned Bridgewater's home but Bridgewater was out at the time. Later on Bridgewater did speak to Stilwell by telephone and on that occasion Stilwell asked Bridgewater if he had talked to the other employees about the proposed changes in work- ing conditions which Stilwell had made in discussions with the employees (other than Bridgewater) the morning of July 25 and during the afternoon of that day. Bridgewater told Stilwell that he had spoken to his brother, Jerry, and to employee Smith, and told Stilwell that he did not like the proposition and intended to let the Union speak for him. Stilwell told Bridgewater, so the latter testified, that he wanted Bridgewater to return to work, but the latter stated that he could not return on Monday as he had some personal business to take care of. On Wednesday, July 30, Bridgewater returned to the Respondent's office intending to go to work. As soon as he arrived, Stilwell handed him a letter, dated July 28, terminating his employment. On Wednesday, July 29, Stilwell drove Jerry Bridgewater home and at the same time brought some of Floyd Bridgewa- ter's equipment and papers that the latter had left in the truck. On this occasion Stilwell showed Bridgewater the let- ter that had been prepared, addressed to the Respondent's employees, outlining the proposed changes in wages, commis- sions, and other conditions of employment. Stilwell, so Floyd Bridgewater testified without contradiction, stated that he intended to have the document notarized the following day, explaining that his purpose in so doing was "to keep the men from going union," and that by having it notarized the docu- ment would be legal and the men could not "back out" and neither could the Company. B. The Alleged Discriminatory Discharges 1. Floyd Bridgewater Bridgewater was employed by the Respondent in April 1969. During the early part of July 1970 Bridgewater dis- cussed the Union with his uncle, William Smith, employed by another concern, and as a result undertook to obtain some union authorization cards and had discussions with his fellow employees. Bridgewater signed his card on July 22, and on the same day, previously found, obtained the signatures of three other employees-his brother Jerry, James Hall, and Leean Smith; the following day he secured the signed card of Mario Lacona. On the morning of July 24, Bridgewater turned the cards over to Summers, the Union's business rep- resentative. The same day Summers wrote a letter to the respondent demanding recognition and the commencement of collective-bargaining negotiations. The Respondent never replied to the letter. As previously related, Stilwell spoke to Bridgewater by telephone the afternoon of July 24 and asked Bridgewater to come to the office on an important matter. On that occasion Stilwell asked Bridgewater why he was "going around talk- ing" to the employees and "stirring them all up." Stilwell told Bridgewater that he had received information that Bridgewa- ter was "the head man" and was "causing all the trouble." At that time Stilwell laid off Bridgewater but indicated that when the union matter had "blowed over" he would rehire Bridgewater. Bridgewater did not work on Monday or Tues- day, July 27, and 28. When he reported for work on the morning of July 29, Stilwell handed him a letter, dated July 28, terminating his services. The letter reads as follows: 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasons for your dismissal at 4:30 P .M., Friday July 24, 1970 , are as follows: 1. Not performing sewer work in the proper manner, too many call backs. 2. Abuse of equipment. 3. Used foul language in customers homes & in public places when conducting company business. 4. Did not abide by company rules regarding sewer truck entrusted to him. 5. Not available when on duty. Bridgewater denied that he had ever been criticized as to the manner in which he performed his work or about an excessive number of callbacks. He further denied that he had abused any of the Respondent 's equipment . Respecting the use of foul language in customers ' homes and public places, Bridgewater testified that he did not use foul language when in the homes of customers but did relate that on one occasion about 2 months before his termination he had a "run in" with the office secretary and that as a result thereof Stilwell spoke to him "about watching my language" in dealing with the office secretary . With regard to the use of the company truck, Bridgewater testified that he had used it on his personal business and that about 2 months before his termination, while using it in relation to his own affairs, the truck was involved in an accident and Bridgewater had the truck re- paired at a cost of approximately $180, which he paid., Some 3 weeks or a month before he was discharged he bought a personal automobile and testified that thereafter he did not use the company truck on his own business. As to the last item mentioned in Stilwell 's letter , not being available when on duty, it is the Respondent's custom to rotate the assignments of being on call at night and being on "backup" duty. Bridgewater related that on one occasion, when he was at the home of a friend attending a party, a call came for him at the number where Bridgewater was. The person who answered the telephone left it off the hook and Bridgewater did not receive the message. Manager Stilwell testified that he discharged Bridgewater because of complaints he had received from customers and the foul language Bridgewater used over the telephone in speaking to the office secretary. Stilwell acknowledged that the incident involving damage to the company truck occurred several months before the discharge . He testified that during the first 6 or 8 months of his employment Bridgewater "done a beautiful job," and that he had affirmatively acted upon Bridgewater 's recommendations in hiring the latter's brother, Jerry, and his cousin, Smith . However, during the latter part of his employment , so Stilwell testified , Bridgewater's job performance deteriorated. Mrs. DeClue, the office secretary and dispatcher, testified that on several occasions she remonstrated with Bridgewater because he used "nasty" language. Also she testified that on occasions she was unable to reach him on the telephone and once, about a month or so before his discharge, reached him at a tavern at night. 2. Jerry Bridgewater Jerry Bridgewater was employed by the Respondent in June 1970; his last day of employment was July 29. On July 22, Jerry signed an authorization card at the request of his brother Floyd while at home. The following Saturday morn- ing, July 25 , Manager Stilwell convened a meeting of the employees in the basement . Bridgewater testified that the occasion for the meeting was to "find out what they wanted what benefits they wanted .... " Bridgewater testified that Stilwell said he "wasn 't going to have the Union," that he would try to agree with the men on some arrangement to keep the Union out, and that he could not pay union wages and before he would "he'd close the shop ." While the meeting was in process the office secretary brought the Union 's letter requesting recognition and bargaining. Stilwell then asked the employees individually if they had signed a union card. All except Roy Duncan , Stilwell 's brother -in-law , acknowledged that they had signed union cards. On Wednesday , July 29 , Stilwell met Bridgewater at a job and told him that when he had completed his ticket on the work performed to come to the office as he (Stilwell) had something he wished to discuss with him. When Bridgewater arrived at the office , Stilwell handed him the following letter, dated July 29: This is a letter of dismissal as an employee of City & County Electric Sewer Company . Reason for dismissal is as follows: Since you were hired for a 90 day trial period, you are not capable of completing jobs that should be handled in a somewhat professional manner by this time. Also, refused emergency sewer work while on duty, so there- fore, you are costing the Company unnecessary money. Contrary to the statement in Stilwell 's letter, Bridgewater testified that he was not told when hired that he would be on probation for 90 days . He further testified that he had never refused emergency work while on duty. However , the night before he was terminated and when he was in the position of backup man he was called in the evening by the office secre- tary who asked him to go out on a job that evening. Bridgewa- ter asked whether he would receive overtime , and, according to him , the office secretary answered "Well, don't worry about it, we do the office work in here and you just do the work." Bridgewater told her that if he could not be assured that he would receive overtime for going out at about 10:30 at night he would wait and do the job the first thing the following morning. He testified that the office secretary then said she would have Manager Stilwell call Bridgewater back that same evening, but Bridgewater testified that Stilwell did not call. The following day Bridgewater was terminated. Stilwell testified that he terminated Bridgewater because he "refused an overtime call when he was on duty ," that he was not capable of doing his work , and had erroneously stated when hired that he was a trained man. He denied that he mentioned the Union to Bridgewater . Mrs. DeClue , the office secretary, testified that on occasion it was difficult for her when speaking to Bridgewater on the telephone to get him to understand the addresses to which he was being dispatched by her. C. The Refusal To Bargain 1. Appropriate unit and majority The complaint alleged , the Respondent admits, and I find that all employees at the Respondent 's Bel-Ridge Missouri place of business , excluding office clerical employees , profes- sional employees , guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. At the times here material the Respondent employed some six employees within the appropriate unit. Five of these signed union authorization cards on July 22 and 23." I find that at all times since July 23 the Union was the exclusive representative of the employees in the aforesaid appropriate unit. Floyd Bridgewater, Jerry Bridgewater, Leean Smith , James Hall, and Mario Iacona; the sixth employee, Roy Duncan , did not sign a card. CITY AND COUNTY ELECTRIC 2. The refusal As related in an earlier section of this decision, on the afternoon of Friday, July 24, Manager Stilwell called Floyd Bridgewater to the office and they had a discussion while seated in the truck used by Bridgewater. Bridgewater testified that Stilwell asked him why he was "going around talking to all" of the employees and "stirring them all up." Bridgewater further testified that on this occasion Stilwell stated that he had received information that Bridgewater was "the head man" and that he "was going to go all the way down the line if he has to and fire everyone of us." Stilwell, so Bridgewater testified, stated that he had returned from his vacation a week earlier than planned because he "had gotten word" regarding the union activity and accordingly returned early in order "to get this all straightened out." After terminating Floyd Bridgewater on July 24, Stilwell convened a meeting of the remaining employees the morning of July 25 and discussed with the employees what their desires were with respect to improvements in their conditions of employment. As em- ployee Smith testified, Stilwell wanted to know what type of arrangements the employees wanted in order "to keep from going union." Employees James Hall and Jerry Bridgewater testified to the same effect. The meeting terminated when Stilwell was handed by the office secretary the letter from the Union requesting recognition and bargaining. Employee Smith testified, without contradiction, that on September 3, Stilwell came out to a job he was on and, in response to Smith's inquiry as to the proper charge to be made, stated overtime had been changed from 8 p.m. to 6 p.m. and that he would "probably" change other terms of employment in accord with the July 25 "deal" with the men "after the union was over." D. Concluding Findings Upon a consideration of the evidence I am satisfied that it persuasively establishes that the Respondent engaged in inde- pendent acts of interference, restraint, and coercion, dis- criminatorily discharged Floyd and Jerry Bridgewater, and unlawfully refused to bargain with the Union. On July 24, a few days after Floyd Bridgewater had ob- tained union authorization cards and had succeeded in secur- ing signed cards from five of the six employees in the unit, Manager Stilwell called him from a job assignment and told him that he (Stilwell) had obtained information of the union activities which caused him to curtail his vacation, that Bridgewater was the "head man" "stirring" up the employees and trying to hurt the Respondent, and threatened to dis- charge Bridgewater and other employees if they continued their union activities. Such conduct, giving the impression of surveillance and threatening reprisal for protected activity, plainly was violative of Section 7 rights. Stilwell further in- dicated his knowledge of union activities the evening of July 24 when he personally notified employee Hall at his residence of the morning meeting the following day, by asking Hall as he left, "What about this union deal?" I credit the consistent and straightforward testimony of the employees that during the meeting the morning of July 25, Stilwell discussed with the employees what improvements in wages and working conditions they desired as a condition for withdrawing from the Union. He also threatened, as Jerry Bridgewater credibly testified, to close the shop rather than have the Union. Shortly before he abruptly ended the meeting upon being given the Union's letter demanding recognition and bargain- ing, Stilwell individually questioned the men as to whether they had signed cards for the Union; all but his brother-in- law, Duncan, acknowledged that they had. By thus attempt- ing to deal with the employees directly rather than through their selected representative, threatening to close the shop 171 rather than recognize the Union, and questioning employees with regard to their having signed authorization cards, the Respondent additionally violated Section 8(a)(1). Finally, on July 26, in a telephone conversation with Floyd Bridgewater, Stilwell told the laid off employee of the improved working conditions he intended to put into effect and that the em- ployees wanted Bridgewater to come back, thereby attempt- ing to persuade Bridgewater to cease his support of the Union in return for improved conditions of employment.' I find such inducement to be violative of Section 8(a)(1). With respect to the termination of Floyd Bridgewater, it is clear that Manager Stilwell had knowledge of the employee's activity in support of the Union. Thus, Stilwell during the afternoon of July 24 accused Bridgewater of being the "head man" in the union movement and asked him why he was "going around talking" to employees and "stirring them up." Stilwell laid off Bridgewater at that time but indicated he might rehire him when the union matter "blowed over." The charges levelled against Bridgewater in the termination letter of July 28 and testified to by Stilwell and Mrs. DeClue, do not withstand analysis. Stilwell stated that for The first 6 or 8 months of his employment Bridgewater did a beautiful job," but that thereafter his work performance deteriorated. Thus, Stilwell would have it that from about January 1970 Bridgewater was an unsatisfactory employee. Nonetheless, no warnings were given him. Indeed, Stilwell acknowledged that in June he hired Floyd's brother, Jerry, and his cousin, Smith, upon Floyd's recommendation. Moreover, the reasons given in the dismissal letter were vague, and they became even more vague and conclusionary in the light of the testimony. Not content with the five reasons given in the discharge letter, Stilwell attempted to buttress the termination of Floyd by testifying that he had received complaints from customers about the employee's work and drinking on the job, that Bridgewater had engaged in gunfighting and assaulting his wife, had been convicted of a felony some years before,' and had been in taverns when he was supposed to be on duty. Stilwell and his secretary-dispatcher, Mrs. DeClue, did not impress me as particularly credible witnesses: each of them exaggerated and Stilwell especially indulged in afterthoughts that plainly had nothing to do with Bridgewater's termina- tion. In contrast, Bridgewater impressed me as a credible witness. Where his testimony is in conflict with that of Stil- well, I credit Bridgewater. To conclude, I find that in dis- charging Floyd Bridgewater on July 28, the Respondent dis- criminated against him in violation of Section 8(a)(3) and (1) of the Act. Jerry Bridgewater was hired early in June and discharged on July 29, allegedly because he was not capable of doing assigned work and had refused to perform emergency work while on duty. He signed a union authorization card on July 22 at the solicitation of his brother Floyd. It will also be recalled that at the meeting held by Stilwell the afternoon of July 24 with Floyd Bridgewater, Stilwell clearly expressed his intent to weed out union adherents, starting with Floyd. Jerry was the only employee who did not attend the July 25 meet- ing called by Stilwell's brother-in-law Duncan, at which the employees agreed to withdraw their union authorization cards on condition the Respondent agreed to meet a list of 6 I do not credit Stilwell's testimony that in this conversation with Bridgewater he did not discuss the demands made by the employees the previous day and that he then refused to rehire Bridgewater 6 A copy of the Magistrate Court Record, Butler County, Missouri, sup- plied by counsel for the Respondent after the close of the hearing and received in evidence as Resp Ex. 6, discloses that in May 1965 Bndgewater was convicted of a misdemeanor, assault. He was fined $5 and sentenced to 12 months in jail, but the sentence was suspended. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage and benefit demands. Contrary to the assertion in the discharge letter given Jerry on July 29, he testified that he had not been told when hired that he would be on probation the first 90 days of his employment. The Respondent attempted to establish that fact by the testimony of Robert Ashcraft, who kept certain books and records for the Respondent. However, all Ashcraft testified to was that employees are carried on the Respondent's unemployment compensation records as probationers, but for only 3 weeks. The only reason for this, so Ashcraft testified, is that by being carried as probationers the employees ' right to receive unemployment benefits (and doubtless the employer's tax rate) is affected. Stilwell verified Floyd Bridgewater 's testimony that on sev- eral occasions Stilwell told Floyd that Jerry was doing a good job. I reject the implication contained in Stilwell's testimony, that Jerry's work performance deteriorated after Floyd was discharged, because Jerry had been relying on Floyd to com- plete his work properly. The credible evidence is to the con- trary, that Jerry performed the jobs assigned without assist- ance. Indeed, Mrs. DeClue testified that Jerry had only one or two callbacks during his term of employment, which defi- nitely indicates that his job performance was satisfactory. Jerry did admit that the night before he was discharged, at about 10:30, and when he was "back up " man to the em- ployee then on call, he received a telephone call from the Respondent 's office asking that he go out on an emergency call. He asked the secretary if he would receive an overtime fee for making the service call; she answered him evasively and he stated if he were not assured of overtime he would wait and go to the job the first thing the following morning. He further credibly testified that the secretary then said she would have Stilwell call back that night; Stilwell did not call him back. I do not believe that this incident can properly be regarded as an outright refusal to accept an assignment; had Stilwell called Bridgewater and assured him of overtime- which would have been payable consistent with my under- standing of the Respondent's then policy-I infer Bridgewa- ter would have gone out on the job. Upon all the evidence, I infer and find that the Respondent discharged Jerry Bridgewater on July 29 for discriminatory reasons, thereby violating Section 8(a)(3) and (1) of the Act. Finally, I find that the Respondent unlawfully refused to bargain with the Union, which as of July 24 represented a clear majority of the Respondent's employees in an appropri- ate unit. The Respondent's refusal, after receipt of the Union's demand received on July 25 is clear, while at the same time it engaged in conduct plainly designed to under- mine the Union and destroy its majority status. Accordingly, I find that the Respondent violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, City and County Electric Sanitary Sewer Service , Inc., is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Journeyman Plumbers Local Union No. 35, affiliated with United Association of Journeymen, and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Floyd Bridgewater and Jerry Bridgewater were dis- criminatorily discharged on July 24 and 29, 1970, respec- tively, by the Respondent, and by such action the Respondent violated Section 8(a)(3) and (1) of the Act. 4. By giving an employee the impression that union activi- ties were under surveillance , threatening an employee that it would discharge employees in order to avoid dealing with the Union, stating that it would refuse to deal with a union and would close the shop before it would have a union , interrogat- ing employees as to whether they had signed union authoriza- tion cards, and advising employees that it would increase wages and benefits in certain respects if they would discon- tinue their interest in and support of the Union, the Respond- ent violated Section 8(a)(1) of the Act. 5. All of the employees employed at the Respondent's Bel- Ridge, Missouri, place of business, excluding office clerical employees , professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 6. At all times since July 23, 1970, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 7. By refusing on and after July 24, 1970, to recognize and bargain collectively with the Union as the exclusive repre- sentative of the employees in the aforesaid appropriate unit concerning wages, hours, and working conditions , the Re- spondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. IV THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and to take cer- tain affirmative action , including bargaining upon request with the Union and offering reinstatement to Floyd and Jerry Bridgewater, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716; and to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' ORDER Respondent, City and County Electire Sanitary and Sewer Service, Inc., Bel-Ridge, Missouri, its officers , agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging union membership or concerted activities of its employees by discriminatorily discharging any em- ployees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term. or condi- tion of employment. (b) Creating the impression that its employees' union ac- tivities are under surveillance , threatening employees with discharge or other reprisals because of their union or con- certed activities , threatening to refuse to deal with a union or to close its shop before it would deal with a union , question- ing employees regarding their union activities , or promising employees increased wages or other benefits if they would discontinue their activities in behalf of and interest in a union. ' In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Section 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. CITY AND COUNTY ELECTRIC (c) Refusing to recognize and bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit concerning wages, hours, and other condi- tion of employment. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer to Floyd Bridgewater and Jerry Bridgewater im- mediate and full reinstatement to their former jobs, or if the jobs no longer exist, to substantially equivalent positions, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Notify immediately the above- named employees, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. (c) Preserve, and upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Upon request, bargain collectively with the above- named union, as the exclusive representative of the employees in the unit set forth above concerning wages, hours, and other conditions of employment, and, if an understanding is 173 reached, embody such understanding in a signed agreement. (e) Post at its place of business in Bel -Ridge, Missouri, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized repre- sentative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.' ® 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " ' In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."