Conkle Funeral Home, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1983

266 N.L.R.B. 295 (N.L.R.B. 1983)

CONKLE FUNERAL HOME
Conkle Funeral Home, Inc. and Furniture, Depart-
ment Store & Parcel Delivery Drivers & Ware-
housemen of Local Union No. 193, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
25-CA-13828 and 25-CA-14113
March 1, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On September 24, 1982, Administrative Law
Judge Irwin Kaplan issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: These
consolidated cases were heard in Indianapolis, Indiana,
on April 1, 1982. The underlying charges were filed by
Furniture, Department Store & Parcel Delivery Drivers
& Warehousemen of Local No. 193, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein the Union), which
charges gave rise to an order consolidating cases, com-
plaint, and notice of hearing on January 6, 1982, alleging
the Conkle Funeral Home, Inc. (herein Respondent), en-
gaged in conduct violative of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended (herein
the Act).
266 NLRB No. 51
The essence of the 8(a)(5) allegation is that Respond-
ent wrongfully and unlawfully relied on the Union's dis-
claimer of interest during the certification year to refuse
to recognize and bargain with the Union when said
Union subsequently demanded renewed bargaining but
still during the certification year. It is also alleged that
Respondent, through its personnel manager, E. D. Lash-
brook, independently violated Section 8(a)(l) of the Act
by unlawful interrogation, creating the impression to em-
ployees that their union activities were under surveil-
lance, and offering to adjust grievances and improve
benefits if the employees abandoned their membership
and support of the Union. Further, it is alleged that Re-
spondent, through its representative, Rayford T. Blan-
kenship, in conducting employee interviews in prepara-
tion for hearing, failed to comport with the guidelines set
forth by the Board in Johnnie's Poultry Co., 146 NLRB
770 (1964), and its progeny and that Respondent thereby
additionally violated Section 8(a)(1) of the Act.
Respondent's answer conceded inter alia jurisdictional
facts but denied all allegations that it committed any
unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the post-hearing briefs, I find as follows:
I. JURISDICTION
Respondent is an Indiana corporation engaged in the
business of operating a funeral home and mortuary and
in performing related services. It has maintained its prin-
cipal office and place of business in Indianapolis, Indiana.
During the past year, a representative period, in connec-
tion with the aforenoted business operations, Respondent
has derived revenue in excess of $50,000 directly from
points located outside the State of Indiana. It is admitted,
and I find, that Respondent is now and has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
It is admitted, and I find, that the Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
During the week of September 17, 1980, employee
Dick Lotts phoned Edward Elder, secretary-treasurer
and business agent of the Union, and invited him to orga-
nize Respondent's employees. The Union's organizational
drive culminated in a successful election which was con-
ducted October 27, 1980 (G.C. Exh. 2), and the issuance
of a Certification of Representative on November 4,
1980.1 After the Union submitted a proposal and after an
exchange of correspondence the parties finally met on
December 29 and conducted their first negotiating ses-
The certified unit is as follows: All full-time and regular part-time
licensed embalmers employed by the employer at its Indianapolis, Indi-
ana, facility, but excluding all office clerical employees, all professional
employees, all technical employees and all guards and supervisors as de-
fined in the Act. (G.C. Exh. 3).
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion. Subsequently, the parties conducted another five or
six bargaining sessions, the last of which was held on
April 2, 1981,2 when Respondent made its final offer.
On or about April 8, Elder met with employees
Grogg, Krugman, Sexton, and Followell and presented
Respondent's final offer for their consideration. 3 Elder
recommended that the members ratify the contract, char-
acterizing it as a good contract although he acknowl-
edged that it was not everything the employees wanted.
He noted inter alia that the employees were offered a 31-
cent-per-hour wage increase and that they would retain
many of the fringe benefits they enjoyed previously.
Elder also pointed out that Respondent is the first em-
ployer in the funeral home industry in the State of Indi-
ana to be organized and as such the contract represented
a good beginning. The membership refused to ratify the
contract but instructed Elder that if Respondent agreed
to certain changes they would then accept Respondent's
offer.4 A fews days later Elder contacted Respondent's
attorney Robert Lutz by phone and told him that the
membership had rejected Respondent's package as of-
fered but that the parties had a contract if Respondent
accepted the changes proposed by the employee-mem-
bers. Within the next several days, Lutz contacted Elder
and told him that Respondent was unwilling to make any
changes from his final offer and that there was no further
room for discussion. Elder again met with the employee-
members, 2 or 3 days later, to advise them that Respond-
ent refused to budge from its final offer and that the par-
ties had reached a bargaining impasse. He then outlined
several options open to them including setting up an in-
formational picket line. The members decided on an in-
formational picket line but only if staffed by other mem-
bers of the local union, not Respondent's employees. 5
Elder again presented Respondent's final offer and again
the membership turned it down as unacceptable.
In April, and a few days after Elder initially recom-
mended that the employees ratify the contract, Floyd
Grogg met with three fellow embalmers and they ex-
plored the possibility of bargaining with the Company on
their own and eliminating the Union as their representa-
tive. 6 Grogg then called Respondent's attorney Robert
Lutz and complained that the employees were not happy
with the Union and were contemplating asking it to re-
lease them and to request that management negotiate
with them directly. According to Grogg, Lutz was not
receptive to the proposal and told him, inter alia, that
2 All dates hereinafter refer to 1981 unless otherwise indicated.
a There were approximately five or six employees in the bargaining
unit at that time.
I The record discloses that the changes proposed by the employee-
members were clearly substantive Thus, the members proposed that the
duration of the contract be 2 years rather than 1 year; a 50-cent-per-hour
wage increase retroactive to the certification date for the first year of the
contract and a 50-cent-per-hour wage increase for the second year of the
agreement; that the company agree in writing to cooperate in providing
sufficient hours to meet licensing requirements; and agreeing to eliminate
subcontracting of embalming work which they were doing. It is not al-
leged nor contended that Respondent had engaged in surface or bad-faith
bargaining.
5 There is no evidence tending to show that the Union ever actually
engaged in any picketing.
6 Grogg was the Union's observer at the election and assisted the Union
in the bargaining session.
there was ill feeling between management and the em-
balmers. In any event, Lutz pointed out that in his opin-
ion he did not think the employees could legally elimi-
nate the Union because it was certified for a year. Lutz
tried to dissuade Grogg taking any action against the
Union immediately suggesting that he wait awhile and
let things cool off. Grogg told all the other employees of
his conversation with Lutz and they decided to ask the
Union not to represent them any further. Grogg testified
that he called Lutz a day or two later and told him that
the embalmers were going to "chuck the Union" and
conveyed his desire to negotiate directly with manage-
ment. Lutz reiterated what he had told Grogg earlier, to
wit, that he did not think the employees could legally
get rid of the Union during the certification year and
that would not come to pass until November. Grogg dis-
agreed and told Lutz that the employees were still going
to try to get rid of the Union.
On or about April 17 Grogg, Krugman, and Speers
went to the union hall and met with Elder and Union
President Charley Ford. They told Elder that he let
them down and that they believed they could negotiate
with management better without the Union and asked for
a release. Elder then consulted with Ford and although
they were of the view that they had negotiated a good
contract they decided to accommodate the employee-
members' wishes and disclaim interest. Thus by letter
dated April 17 Elder wrote all five of the bargaining unit
employees with a copy thereof to Respondent the body
of which in its entirety reads as follows:
Pursuant to our many phone conversations and
after much soul searching on the part of the Offi-
cers of this Local Union, please be advised effective
this date Teamsters Local Union No. 193 no longer
desires to represent the unit certified by the
N.L.R.B. November 4, 1980 in case #25-RC-7534.
I feel that this Local Union has done all that is
possible to be done in securing a Collective Bar-
gaining Agreement and that any further negotia-
tions would be fruitless because of your unreason-
ably high demands.
Please be assured that if the Conkle Funeral
Home should attempt to terminate you, we will
process N.L.R.B. charges in your behalf.
Should you have any questions please do not
hesitate to contact me. [G.C. Exh. 4.]
According to the testimony of Grogg, Sexton, and
Krugman, in late April or early May each of them sepa-
rately had one conversation with Personnel Director
Lashbrook where, inter alia, the subject of the Union had
come up. Thus, Grogg testified that approximately a
week after the Union's disclaimer letter, Lashbrook en-
gaged him in conversation while the latter was working
in the preparation room and during the course of a con-
versation told him, "You guys really messed up when
you tried to go union. If you would have just come to
me and talked to me about it, I would have tried to have
done something about it for you." Sexton could not
recall how the subject of the Union was broached but re-
called Lashbrook asking him if he thought that the
296
CONKLE FUNERAL HOME
Union had hurt the employees any. Lashbrook assertedly
noted that if the employees had gone to management
they could have resolved their problems such as schedul-
ing and hours without the Union's help. Krugman testi-
fied that in May in a conversation with Lashbrook in the
back hallway at the facility Lashbrook asked him wheth-
er he thought the employees would ever bring the Union
back and he, Krugman, responded in the negative. Lash-
brook assertedly then volunteered that if the employees
brought the Union back one of them probably would not
support the Union, to which Krugman assertedly made
reference to Sexton and he, Lashbrook, confirmed the
name. Lashbrook denied the substance of the aforenoted
conversations except to the extent that he acknowledged
telling employees that he wished they would have talked
to him or to Assistant Manager Daniel Hayes before all
this happened.
Sometime during the late April or early May time
frame, Grogg again called Lutz and urged him to set an
early date for direct negotiations with employees now
that they had succeeded in eliminating the Union. Lutz
again expressed doubt as to whether employees could le-
gally rid themselves of the Union during the certification
year and suggested that they let things "live for a couple
of weeks." 7 Grogg solicited the support of Krugman and
Sexton to enlist Lashbrook's assistance in setting up a
meeting with them to negotiate. On June 30, Lashbrook
summoned the four embalmers then employed, Krugman,
Speers, Sexton, and Grogg, and advised them of a new
working schedule and a wage increase.8
On August 5 Lashbrook sent Grogg home in the after-
noon because business was slow and there was nothing
for him to do. The following day because business was
slow Grogg was again laid off as well as some of the
other embalmers including the owner's son-in-law.
Grogg then went to the union hall to explore with union
officials the feasibility of filing unfair labor practice
charges against Respondent for the layoff. The next day
Grogg spoke to Sexton, Krugman, and Speers with
regard to inviting the Union to represent them once
again. Grogg was designated as the spokesperson to
convey their desires to the Union. After this was accom-
plished, Elder, by letter dated August 7, wrote to Lash-
brook as follows:
Please be advised that Teamsters Local Union
No. 193 wishes to reinitiate Collective-Bargaining
for those employees who are members of Teamsters
Local Union No. 193.
We are willing to meet the earliest possible date,
please advise me when the earliest possible date
which you can meet. [G.C. Exh. 5.]
Grogg acknowledged on cross-examination that when he first ap-
proached Lutz with regard to negotiating directly with employees with-
out the Union, that the latter told him that it was unethical for him to
discuss his union rights because he, Lutz, represented the Company. Lutz
did not testify at the hearing.
" The changes in wages, hours, and working conditions on that occa-
sion are not encompassed by the complaint nor does the General Counsel
contend that they were unilateral changes in violation of Sec 8(a)(5) or
that they otherwise violated the Act.
By letter dated August 12, Rayford Blankenship, a
representative of Respondent, informed Elder that, be-
cause of the Union's previous disclaimer of interest, Re-
spondent no longer recognized the Union as the employ-
ees' representative and suggested that they take the
matter to the NLRB. In pertinent part the letter reads as
follows:
The Company believes there is no current ques-
tion of representation due to your unequivocal dis-
claimer of interest, and we suggest that you take the
matter to the NLRB.
If you want to discuss the matter further, we will
be glad to meet with you. However, we will not
voluntarily recognize your continued majority
status until the NLRB resolves these issues. [G.C.
Exh. 6.]
On August 14, the Union filed the underlying charges
which gave rise to this proceeding. On December 1,
Blankenship, his assistant, Robert Craven, and Lashbrook
called employees Speer and Krugman separately for in-
terviews in preparation for hearing. Blankenship asked
both employees in separate interviews for their coopera-
tion stating, inter alia, that their participation was volun-
tary and promised no reprisals. In addition he gave them
waivers reflecting what he had stated to them orally (see
Resp. Exhs. 4 and 5). Blankenship told them that a com-
plaint issued alleging certain misconduct by Lashbrook
and asked them what they knew about these allegations
and whether they had given statements to the Board.
Both Speer and Krugman signed the waiver and, in
Krugman's case, he also agreed to permit the taping of
the interview.9
B. Discussion and Conclusions
1. The 8(a)(5) allegation
The principal facts are not in dispute. Thus the record
disclosed, inter alia, that the Union was duly certified on
November 4, 1980, but by mid-April 1981 it had lost vir-
tually all support from unit employees. The employees'
disaffection culminated in an unequivocal union disclaim-
er of interest in writing, a copy of which was sent to
each unit employee and to Respondent. It is not contend-
ed, nor does the record disclose that the union disclaimer
was predicated in whole or in part on any wrongdoing
on the part of Respondent. On the contrary, the record
disclosed that Respondent tried to dissuade employees
from abandoning the Union during the certification year.
In August, a little over 3-1/2 months following the union
disclaimer, the former employee-members having met
with no success in bargaining directly with the Compa-
ny, then invited the Union to reinstitute bargaining on
their behalf. The Union thereupon by letter dated
August 7 wrote Respondent advising it that the Union
"wishes to re-initiate collective bargaining for employee
members." As noted previously, Respondent by letter
dated April 12 refused to recognize and bargain relying
9 As noted previously the General Counsel contends that these inter
views were coercive and violative of Sec 8(a)(l) of the Act
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the Union's earlier unequivocal disclaimer of interest.
The certification year still had approximately 2 months
and 3 weeks to run. The parties are in agreement that the
total record factually presents a case of first impression.
It has been held that a certification achieved on the
basis of a Board election must be honored for a reason-
able period, normally I year absent unusual circum-
stances. See Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954);
Smith & Smith Aircraft Company, 260 NLRB 1045
(1982); WTOP, Inc., 114 NLRB 1236, 1237 (1955). By the
time the Supreme Court treated the Board's rule with
favor in Ray Brooks, "unusual circumstances" had been
found in at least three situations: (1) dissolution or de-
functness of the union; (2) schism, with substantially all
the members and officers of the union transferring their
affiliation to a new local or international; and (3) radical
fluctuation in the unit complement within a short time.
See Ray Brooks v. N.L.R.B., supra at 989-999, and cases
cited therein. On the other hand, it has been consistently
held that the Union's loss of majority support by unit
employees is not "unusual circumstances" as to justify a
respondent's refusal to bargain within the certification
year. See Lee Office Equipment, 226 NLRB 826, 831
(1976), enfd. 572 F.2d 704 (9th Cir. 1978); Lexington
Cartage Company, Inc., 259 NLRB 55 (1981); Cocker Saw
Company, Inc., 186 NLRB 893 (1970), enfd. 446 F.2d 870
(2d Cir. 1971); Ray Brooks v. N.L.R.B., supra.
Applying the foregoing to the instant case, I find that
the Union's intervening loss of majority support cannot
be relied on as a defense for Respondent's refusal to bar-
gain during the certification year. The question remain-
ing is whether Respondent may rely on the Union's dis-
claimer in the total context of this case.
In Ray Brooks, Supreme Court cautioned against "self-
help" during the certification year pointing out the ac-
cessibility of the Board's process for relief where an em-
ployer had doubt about the duty to continue bargaining
(supra at 103). I find however that in the instant case
noting the circumstances giving rise to the Union's dis-
claimer and that the Union engaged in no inconsistent
action therewith for a substained period covering 3-1/2
months, that Respondent could safely treat the Union as
defunct, at least insofar as Respondent's employees are
concerned. See, e.g., WTOP, Inc., supra. In this connec-
tion it is noted, inter alia, that on or about June 30, ap-
proximately 2-1/2 months after the Union's disclaimer,
Respondent made a number of unilateral changes in
terms and conditions of employment including wage
rates and scheduling without any challenge from the
Union. In these circumstances, the fact that there was no
new representation petition pending at the time the
Union disclaimed (as was the case in WTOP, Inc.), it
should not detract from the validity of the disclaimer,
particularly where, as here, the union did not engage in
any inconsistent action therewith for 3-1/2 months.'°
10 In WTOP. Inc., supra, where the certified union disclaimed after a
representation petition was filed by another union during the certification
year, the Board did not dismiss the petition as untimely stating that "it
would not effectuate the policies of the Act to apply the I year certifica-
tion rule in this case."
In assessing the events leading to the Union's disclaim-
er it is noted that Respondent was not accused nor does
the record disclose that it failed to bargain in good faith.
In fact, Respondent's final proposal was recommended
by the union leadership as a "good contract."
As indicated previously, the fact that the membership
rejected the proposal and decided to bypass and discard
the Union and deal directly with Respondent may reflect
employee disaffection with the Union, but by itself
during the certification year it is of no consequence.
However, the employees did much more than merely ex-
press disaffection; they requested a release from the
Union and to ensure a complete break asked for and got
an unequivocal disclaimer in writing. The Union in ac-
commodating the employees by providing a written dis-
claimer did not fault Respondent but rather assessed re-
sponsibility for the falling out of the employees "because
of [their] unreasonably high demands."
Under all the circumstances, noting that the Union's
disclaimer was not in any manner attributable to Re-
spondent and that the Union had not engaged in any in-
consistent action for a sustained period of 3-1/2 months,
I find that the Union could not then resurrect their bar-
gaining status. As such, Respondent's refusal to recog-
nize and reinstitute bargaining with the Union was based
on special or unusual circumstances warranting a depar-
ture from the general rule of honoring a certification for
1 year. Accordingly, I shall dismiss their allegation.
2. The 8(a)(1) allegations
a. Lashbrook's conduct
Counsel for the General Counsel contends that in late
April or early May, Lashbrook coercively interrogated
Sexton and Krugman about their union sympathies and
activities; intimated to Grogg and Krugman that he
would adjust their grievances and improve benefits if
employees abandoned their membership and support of
the Union; and created the impression to Krugman that
the employees' union activities were under surveillance;
and that Respondent by such acts and conduct thereby
independently violated Section 8(a)(l) of the Act.
While Lashbrook conceded that, after the Union dis-
claimed, the subject of the Union had come up in several
brief conversations with employees, he denied that he in-
terrogated them, or promised to adjust grievances and
provide benefits if they abandoned the Union as well as
denying largely the substance of the other remarks as-
cribed to him by Grogg, Sexton, and Krugman.
According to Lashbrook, and the record tends to sup-
port, the subject of the Union was touched upon only
briefly while relaxing on break in the coffeeroom or, as
in Grogg's case, a chance meeting in the preparation
room.
Grogg testified that in late April, after the Union dis-
claimed, that Lashbrook told him in the preparation
room, "you guys really messed up when you tried to go
union. If you had just come to me and talked to me
about it, I would have tried to do something about it for
you." It is undisputed that Grogg volunteered his dis-
pleasure with the Union's inability to get more for em-
298
CONKLE FUNERAL HOME
ployees citing Blankenship's skill in handling Elder and
that Lashbrook agreed with Grogg's assessment of Blan-
kenship. Nothing else was said, as they were joined in
the preparation room by another employee. This was the
only time Lashbrook ever mentioned the Union to
Grogg.
Similarly, Lashbrook spoke on only one occasion with
Sexton about the Union. According to Sexton, in late
April, after the Union disclaimed, Lashbrook asked
whether the Union had hurt him any, to which he re-
sponded, "[The Union] didn't help us any." Further,
Lashbrook expressed surprise that the Union would go
along with Respondent's management-rights provision
and "suggested" that had employees gone to him or As-
sistant Manager Hayes first, they could have "solved the
problems such as scheduling and hours without the
Union's help." Lashbrook conceded only that he made
reference to the management-rights provision and told
Sexton that he wished he had come to him or Hayes
before going to the Union. Sexton nor Lashbrook could
recall how the subject of the Union entered the conver-
sation. According to Krugman Lashbrook asked him on
or about May 1 during a coffeebreak if he thought the
employees would ever bring the Union back to which
Krugman replied, "No, there is no way." To this, Lash-
brook assertedly asked Krugman to let him know if the
employees changed their thinking to again want the
Union, but Krugman refused assertedly pointing out to
Lashbrook that he is "management." Lashbrook denied
any mention of the Union to Krugman.
I find for reasons noted below that under all the cir-
cumstances including credibility resolutions made in con-
nection therewith," that Lashbrook's remarks were iso-
lated, free of coercion, and did not reach the level of
8(a)(1) misconduct as alleged.
" While Lashbrook and the General Counsel's witnesses Grogg. Sexton,
and Krugman were all at times equivocal and had all exhibited poor
recall, I find on balance that Lashbrook was more plausible and forthright
than the General Counsel's witnesses. For example, it is noted that Lash-
brook candidly responded to the Administrative Law Judge herein by ad-
mitting that he told Sexton that he wished that he had come to him or
the assistant manager before he embraced the Union. By contrast, Grogg
reluctantly acknowledged on cross-examination that Lutz told him that it
was not ethical for him to discuss the union situation because he repre-
sented the Company. Further, in assessing Grogg's overall credibility, it is
noted that despite being told by Lutz repeatedly that it was not lawful to
bypass the Union and deal directly with employees during the certifica-
tion year, Grogg refused to be deterred. Still further, Grogg tended to em-
bellish his testimony and at one point was cautioned about not being re-
sponsive. With respect to Sexton, I found him, inter olia, unsure unless
when asked leading questions by the General Counsel. It also appears
that Sexton's testimony regarding his conversation with Lashbrook about
the Union did not comport fully with his affidavit. Sexton asserted that,
on checking his notes soon after giving the affidavit. he recognized that
some changes had to be made, but he failed to notify the Board. I found
Krugman's testimony largely inconsistent and implausible. For example, I
find it incongruous and highly unlikely that he would on one hand tell
Lashbrook that there was "no way" the employees would take the Union
back, but if they decided to, he would refuse to tell Lashbrook because
he, Lashbrook, was "management." Overall I found Krugman to be an
unreliable witness noting, inter alia, his reluctance to identify his voice on
tape and that his denials at the hearing regarding the questions asked by
Blankenship at the interview on December I are largely contradicted by
said tape. In sum, including my observation of the witnesses' demeanor I
credit Lashbrook over Grogg, Sexton, and Krugman in all material re-
spects.
First it is noted that from mid-September 1980, at
which time the Union first appeared on the scene in an
organizational capacity until it disclaimed interest in mid-
April 1981, there is no evidence tending to show that
Lashbrook or any other company official ever made ref-
erence to the Union in conversations with employees.
Further there is a dearth of credible evidence tending to
show that Respondent harbored union animus in conver-
sations or otherwise at any time prior to the Union's dis-
claimer. On the contrary, Respondent fulfilled its bar-
gaining responsibilities including the offer of a final pro-
posal which the union leadership characterized as a
"good contract." Further, the record disclosed that Re-
spondent's attorney, Robert Lutz, time and again at-
tempted to dissuade employees from dumping the Union
pointing out that he had serious doubts that it could be
done legally during the certification year.
The employees, however, rejected Lutz' advice and
asked for and obtained a release from the Union in the
form of a written disclaimer because they hoped with the
Union gone that they could work out a better deal with
Respondent. Thus, now that the Union was off their
back, Grogg, as spokesman, admittedly instructed Krug-
man and Sexton to press Lashbrook about setting up
meetings for direct negotiations with the employees.
Given this backdrop, it is not surprising that Lashbrook
told Sexton, "I wished [sic] before all this union thing
happened that you would have talked to us." In any
event I do not find that Lashbrook's statement conveyed
a promise to "adjust employee grievances" or that he
"offered improved benefits" if employees abandoned
their membership and support of the Union, as alleged,
particularly where, as here, the Union had already de-
parted. Moreover, the statement did not carry any threat
of reprisals. In this regard, it is noted that the record is
devoid of any evidence tending to show that any em-
ployee was discriminated against because of union activ-
ties.
In sum, on the basis of the foregoing and in the total
circumstances of this case, I am not persuaded that the
General Counsel has established by a preponderance of
the credible evidence that Lashbrook coercively interro-
gated employees, created the impression among employ-
ees that their union activities were under surveillance,
and offered to adjust grievances and promised benefits to
induce employees to abandon the Union as alleged. Ac-
cordingly, I shall recommend that these allegations be
dismissed.
b. Johnnie's Poultry allegation
On December 1, employees Krugman and Speer were
called to the preparation room where they were ques-
tioned separately by Blankenship about allegations in-
cluding misconduct on the part of Lashbrook for the up-
coming hearing. Blankenship's assistant, Robert Craven,
and Lashbrook were present at the time the interviews
were conducted.
Krugman was called in first and, after some prelimi-
nary introductions, Blankenship explained the purpose of
the interview. Blankenship also told Krugman that his
participation was voluntary, that he did not have to talk
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him, and stressed the fact that Krugman need not fear
reprisals. As testified by Krugman, "I [Krugman] was
told that this would [in] no way, shape or form jeopard-
ize my job." Further, Blankenship asked Krugman
whether he objected to having the interview taped and,
although Krugman at first appeared unwilling, he relent-
ed when Blankenship again assured him against any re-
prisals. Blankenship then gave Krugman a waiver form
and explained that the document stated in writing what
Blankenship represented to him verbally.12 Krugman
signed the waiver form and then was questioned on tape
about his knowledge concerning Lashbrook's alleged
misconduct vis-a-vis surveillance, interrogation, and
promise of benefits as set forth more fully in the com-
plaint.l3 Blankenship once again assured Krugman that
he need not fear reprisals; that his job was not in jeop-
ardy.
Speer was interviewed shortly after Krugman. Essen-
tially the same procedure was followed: First, introduc-
tions, followed by Blankenship's explanation that the
purpose of the interview was to investigate allegations of
misconduct on the part of Lashbrook for the upcoming
hearing. Blankenship told Speer that he did not have to
talk to him if he did not want to participate in the inter-
view. He pointed out to Speer, however, that he could
state anything he wanted to without fear of reprisals
from him (Blankenship) or the Company. Speer at first
stated that he did not feel like talking, but after it was
pointed out that the inquiries were not directed at his
conduct, but Lashbrook's, Speer was more amenable to
conversation. Thus Speer signed the same waiver form
(Resp. Exh. 4) as had Krugman, although Speer asserted
that he had not read the document. He acknowledged,
however, that Blankenship told him what the waiver
form represented and was given the opportunity to read
the document. Blankenship, with Speers' approval, then
read the portions of the complaint pertaining to Lash-
brook. Speer told Blankenship that he and Lashbrook
never conversed on union matters and that he was
unable otherwise to provide information regarding the
allegations. At one point during the interview when
Blankenship questioned Speer about Lashbrook allegedly
conveying the impression of surveillance, Speer volun-
teered that he has always been a supporter of the Union.
Blankenship told Speer that there was nothing wrong
with supporting the Union and the interview ended a
moment or two later.
The General Counsel contends that the interviews of
Krugman and Speers on December 1 were coercively
conducted as Blankenship assertedly failed to comport
12 The waiver read as follows: "I Richard Krugman have been in-
formed by Ray Blankenship or Robert Craven that I do not have to
answer to any questions concerning Case 25-CA-13828, that I do so if I
desire, that I may volunteer anything that I desire without fear of repri-
.als from the Company. Also, I understand that my job is in no way af-
fected by my cooperation or lack thereof. Further, I do not feel coerced
in the manner or the place of this interrogation, and I therefore make the
following statements to be the truth to the best of my knowledge and
belief." (Resp. Exh. 5.)
13 Blankenship testified that he taped the interviews because "[It] is
more accurate and its also a time consumption factor, to write out every
question and then the man's answer .
with the guidelines set forth by the Board in Johnnie's
Poultry. 14 There the Board stated as follows:
Despite the inherent danger of coercion therein,
the Board and courts have held that where an em-
ployer has a legitimate cause to inquire, he may ex-
ercise the privilege of interrogating employees on
matters involving their Section 7 rights without in-
curring Section 8(a)(1) liability. The purposes which
the Board and courts have held legitimate are of
two types: the verification of a union's claimed ma-
jority status to determine whether recognition
should be extended, involved in the preceding dis-
cussion, and the investigation of facts concerning
issues raised in a complaint where such interroga-
tion is necessary in preparing the employer's de-
fense for trial of the case.
In allowing an employer the privilege of ascer-
taining the necessary facts from employees in these
given circumstances, the Board and courts have es-
tablished specific safeguards designed' to minimize
the coercive impact of such employer interrogation.
Thus, the employer must communicate to the em-
ployee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his par-
ticipation on a voluntary basis; the questioning must
occur in a context free from employer hostility to
union organization and must not be itself coercive
in nature; and the questions must not exceed the ne-
cessities of the legitimate purpose by prying into
other union matters, eliciting information concern-
ing an employee's subjective state of mind, or other-
wise interfering with the statutory rights of employ-
ees. When an employer transgresses the boundaries
of these safeguards, he loses the benefits of the
privilege.
In applying the foregoing guidelines to the instant
case, I find, contrary to the General Counsel, that they
were scrupulously observed. Thus the record disclosed
and I find that Blankenship related to both Krugman and
Speer that the NLRB had issued a complaint against Re-
spondent alleging that Lashbrook had engaged in certain
specified misconduct and that he, Blankenship, was now
seeking information from them to help meet these allega-
tions at the upcoming hearing. It is undisputed that Blan-
kenship told Krugman and Speer that the interviews
were voluntary and that he underscored the fact that no
reprisals would be taken whether or not they agreed to
participate therein. As noted previously, these safeguards
were also memorialized in the waiver form signed by
both Krugman and Speer. 15 Further, it is noted that
while Krugman and Speer were not fully responsive at
these interviews, that the record is devoid of any evi-
dence tending to show that either of them suffered dis-
criminatorily in the following 4-month period up to the
date of the instant hearing.
14 Johnnie's Poultry Co., 146 NLRB 770, 774-775 (1964), enforcement
denied on other grounds 344 F.2d 617 (8th Cir. 1965).
iS See fn. 12, supra.
300
CONKLE FUNERAL HOME
The General Counsel's reliance on Tamper, Inc., 207
NLRB 907, 937 (1973), is misplaced. There unlike the in-
stant case, Respondent failed to provide adequate assur-
ances against reprisals and the interviews were conduct-
ed in a context of continuing antiunion hostility. Adding
to the coercive nature of the interviews in Tamper is the
fact that they were conducted in the "Board room," a
room the employees had visited for the first time and fa-
miliar only to those individuals at the company possess-
ing power. By contrast, in the case at hand, inter alia,
Krugman and Speers as embalmers spend time working
in the preparation room (where the instant interviews
were conducted) daily. Insofar as Krugman and Speer
were asked whether they had given affidavits to the
Board, the question by itself has been held not to be co-
ercive. See Korwall Corporation of Indiana, 238 NLRB
88, 90 (1978).16
In sum, I find in the total context of this case that the
interviews were conducted in conformity with the guide-
lines set forth by the Board in Johnnie's Poultry. Accord-
ingly, I shall dismiss this allegation.
CONCLUSIONS OF LAW
I. Respondent Conkle Funeral Home, Inc., is now, and
has been at all times material herein, an employer en-
L" As disclosed by the decision in Kornwvall, Respondent's representa-
tive herein has not always scrupulously provided Johnnies Poultry safe-
guards.
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Furniture, Department Store & Parcel Delivery
Drivers & Warehousemen of Local Union No. 193, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent did not, as alleged, engage in conduct
violative of Section 8(a)(5) and (1) of the Act.
4. Respondent did not, as alleged, independently
engage in conduct violative of Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 17
The complaint is hereby dismissed in its entirety.
" 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. he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
301