Daphne San Francisco Funeral Service

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 461 (N.L.R.B. 1976)

DAPHNE SAN FRANCISCO FUNERAL SERVICE 461
Cathay (Wah Sang) d/b/a Daphne San Francisco Fu-
neral Service and Mortuary Employees ' Union, affi-
liated with Seafarers ' International Union of North
America, AFL-CIO Case 20-CA-10041
June 8, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On January 15, 1976, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
1 Interrogating employees regarding their and other
employees' union activities
2 Threatening employees the Company would dis-
charge employees for engaging in union activities
3 Discharging employee Arthur Grosse because he en-
gaged in union activities
The Company denied the commission of the alleged in-
terrogations and threats and denied it discharged Grosse
because of his union activities
The issues are, therefore, whether the Company commit-
ted the alleged interrogations and threats and discharged
Grosse because of his union activities
The parties appeared by counsel at the hearing, were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs Briefs
have been received from the General Counsel and the
Company
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
the Company at all times pertinent was an employer en-
gaged in commerce in a business affecting commerce and
the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act
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 Respondent, Cathay (Wah Sang)
d/b/a Daphne San Francisco Funeral Service, San
Francisco, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge On
September 9 and 10 , 1975,' I conducted a hearing at San
Francisco , California , to try issues raised by a complaint
issued on July 1 pursuant to a charge filed by the Mortuary
Employees ' Union, affiliated with Seafarers' International
Union of North America , AFL-CIO ,' on March 11
The complaint alleged that Cathay (Wah Sang) d/b/a
Daphne San Francisco Funeral Service 3 violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (hereafter referred to as the Act), by
Read 1975 after all future date references omitting the year
2 Hereafter called the Union
' Hereafter called the Company
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
At all times pertinent the Company operated three mor-
tuaries in San Francisco at One Church Street, Sixth Ave-
nue and Geary Street, and 1213 Powell Street The Church
Street premises were the largest and contained the
Company's main business offices
At times pertinent, the Company employed three li-
censed master journeyman embalmers at Church Street to
perform embalming for all three locations They were Ed-
ward Barcewski, who, as of September, had been employed
by the Company over 10-1/2 years, Clayton Galloway,
who had been employed for the previous 1-1/2 years, and
Arthur Grosse, who was employed by the Company be-
tween July 1974 and March 1975
The Company since 1938 has been signatory to a succes-
sion of collective-bargaining contracts with the Union cov-
ering its embalmers The contract in effect at times perti-
nent to this proceeding became effective March 1, 1974,
and runs to February 28, 1977
Beginning in October 1974 there has been a dispute be-
tween the Company and the Union over the Union's de-
mand the Company employ embalmers at each location to
perform the work normally performed by embalmers there
or, in the alternative, compensate its three embalmers at
premium rates for all time such work was performed at or
for the Geary and Powell Street mortuaries
In October 1974, the Union's secretary-business repre-
224 NLRB No 56
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative, William Barnes, asked the three embalmers to
maintain and furnish him with records of the numbers of
hours embalmer work was performed at or for the Geary
and Powell Street mortuaries (He followed this up with a
written request in November 1974) The three embalmers
complied and began to keep such records or work logs and
to furnish them to Barnes
In late October, Barnes, on the basis of the logs fur-
nished to him by the three embalmers, sent a bill to the
Company for amounts allegedly due under the contract
but not paid The three men maintained and furnished
such logs to Barnes thereafter, and the Union sent a bill
based thereupon to the Company each month, through the
date of hearing before me The Union also processed a
grievance against the Company to arbitration over the
Company's refusal to hire an embalmer at the Geary and
Powell Street locations 4 and/or pay the amounts demand-
ed
B The Alleged December 1974 or January 1975
Interrogation and Threat
Barcewski testified that about 2 weeks to a month before
Grosse's discharge,' while he was in the dressing room at
Church Street, Nicholas Daphne 6 asked him if he was
keeping a work log, that he replied in the affirmative, and
that Daphne then stated that he would either break the
Union or it would break him
Aside from the fact the time at which Barcewski placed
the alleged remark does not fall within the dates alleged in
the complaint (VI(a) & (b), December 1974-January
1975), Barcewski's testimony is weakened by his conces-
sion that at the May 30 arbitration hearing he testified
under oath that Daphne never questioned him regarding
his work log It is further noted the General Counsel stated
that no prehearing statement was ever taken from Barcew-
ski, which raises some doubt concerning the basis for the
allegations in paragraph VI(a) and (b) of the complaint
Daphne denied he ever questioned Barcewski about his
keeping of work logs or stated to Barcewski he would
break the Union or it would break him
On the basis of the above factors, I credit Daphne's de-
nial
I therefore find and conclude that Daphne did not, in
December 1974 or January 1975, interrogate Barcewski re-
garding his and other employees' union activities by ques-
tioning him as to whether he kept a work log or threaten
Barcewski that he would discharge employees for such ac-
tivities I therefore shall recommend those portions of the
complaint so alleging (paragraph VI(a) and (b)) be dis-
missed
C The Alleged February Interrogation and Threat
Galloway testified that in early February he was riding
4 A hearing was held on the Union s grievance before an arbitrator on
May 30 The decision had not issued at the time I heard this dispute
5 Grosse was discharged on March 7
6 The Company s answer admitted Daphne was the Company s president,
supervisor, and agent acting on its behalf at all times pertinent
in the funeral coach with Bernard Gignac and Daphne,
that Daphne asked him what was going on with the Union,
that he replied Daphne and the Union had a contract long
before he was hired and any disputes between Daphne and
the Union over that contract were between Daphne and
the Union, that Daphne asked him if he was keeping rec-
ords, that he replied he was, that Daphne asked him if
Barcewski and Grosse were keeping records, that he re-
plied affirmatively, and that Daphne closed the conversa-
tion by stating the Union once had 110 members, he broke
it then, so it has 50 now, he would break it again, that
Barcewski and Grosse were strong union men and perhaps
he should fire them Gignac corroborated Galloway's testi-
mony
Daphne denied the conversation ever took place
Based upon my observation of Galloway, Gignac, and
Daphne wile testifying, I credit the testimony of Galloway
and Gignac that Daphne made the statements in question I
I therefore find and conclude that in early February the
Company violated Section 8(a)(1) of the Act by Daphne's
questioning of Galloway concerning whether he and the
other embalmers were maintaining records concerning em-
balmer work performed for or at the Company's Geary
and Powell Street locations and by stating that Barcewski
and Grosse were strong union men and ought to be fired
D The Second Alleged February Interrogation and Threat
Galloway testified that in approximately mid-February,
inside the entryway at the Church Street mortuary,
Daphne asked him if Barcewski and Grosse were still keep-
ing records, to which he replied in the affirmative, that
Daphne asked him if he was keeping records, that he again
replied in the affirmative, and that Daphne closed the con-
versation with a rhetorical question, i e , whether the three
embalmers wanted to lose their jobs Grosse corroborated
Galloway's testimony
Daphne denied the exchange ever took place
While it is true that Galloway, in his testimony, placed
Grosse in the embalming room with the door open at the
time of the conversation and, in his prehearing affidavit,
placed Grosse in his company proceeding from the dress-
ing room to the embalming room, I nevertheless, in view of
their mutual corroboration and their sincere forthright de-
meanor while on the stand, credit the testimony of Gallo-
way and Grosse 8
I therefore find and conclude that in mid-February the
Company violated Section 8(a)(1) of the Act by Daphne's
interrogation of Galloway concerning whether the three
embalmers were still keeping records of embalmer work
7 The Company challenges Gignac s testimony on the ground no mention
of this incident is contained in his preheanng affidavit Gignac explained
that the investigator questioned him only about Grosse' s leaving him in
charge of the mortuary on March 6 and leaving early, the event which
precipitated Grosse s discharge The Company also charges Gignac with
bias inasmuch as he has left the Company s employ and has a pay claim
pending against it I reject those challenges, Gignac was a forthright wit-
ness as was Galloway (whose testimony is essentially supported by his pre-
hearing affidavit)
s By way of contrast, Daphne oftentimes was evasive and shifting in his
testimony on several subjects, as shall be developed hereafter in sec F of
this Decision
DAPHNE SAN FRANCISCO FUNERAL SERVICE 463
performed for or at the Geary and Powell Street mortuaries
and by suggesting they risked their continued employment
by so doing
E The March 1 Threat
Galloway testified that approximately 1 week before
Grosse's discharge (March 7), while he and Daphne were
at the Powell Street mortuary, Daphne stated he let Bar-
cewski testify against him in a prior arbitration, but if Bar-
cewski or Grosse or Galloway testified against him in the
pending arbitration proceeding 9 they could all be fired,
and that if the Union won that arbitration, they could lose
their jobs, his daughters could lose their jobs, and he might
be forced to close the business
Daphne denied the conversation ever occurred
Based on my observation of Galloway's sincere and
forthright manner while testifying, as contrasted with
Daphne's evasiveness and sometimes rambling and contra-
dictory testimony,10 I credit Galloway's testimony
I therefore find that on or about March 1 the Company
violated Section 8(a)(1) of the Act by Daphne's telling Gal-
loway the embalmers risked discharge if they testified
against him in the pending arbitration and further might
lose their jobs if the Union won
F The Grosse Discharge
Grosse was hired by the Company in July 1974 and dis-
charged on March 7 He was a duly licensed master jour-
neyman embalmer at the time of his hire and worked in
that capacity throughout his employment
As developed hereafter, Grosse was an independent,
self-confident, and articulate person, quick to assert his
rights and to speak out in his defense Daphne, a self-made
successful businessman who started as an embalmer and
built a highly successful business, was an irascible employ-
er with a tendency to bully and threaten his employees, to
expect a degree of subservience from them, and to resent
any expression from his employees other than complete
agreement with his views, as indicated by the previous
8(a)(1) findings and as further developed hereafter
The General Counsel asserts Grosse was discharged be-
cause Daphne realized he was the Union's strongest sup-
porter among the three embalmers and because he, along
with the other two, was keeping a log of all embalmer work
performed at the Geary and Powell Street locations
The Company asserts Grosse was discharged after a ser-
ies of incidents involving conduct by Grosse which irritat-
ed Daphne, culminating in a March 5 incident wherein
Grosse left work before the end of his shift without permis-
sion, and in violation of company rules and the Company-
Union contract
There is no question all three embalmers began keeping
work logs in October 1974 and continued to maintain them
throughout the date the hearing was held in this proceed-
ing, it is likewise clear these logs were regularly turned over
to the Union by the three embalmers, and the Union,
9 The May 30 arbitration referred to in sec A, above
10 See fn 8
based thereupon, sent monthly bills to Daphne for alleged
sums due because of the Company's alleged violations of
the Company-Union contract
Neither is there any question that Daphne was disturbed
over the Union's claim and the possible financial conse-
quences thereof, findings have been entered concerning
Daphne's repeated questioning of Galloway concerning
the log-keeping and his expressed concern over the possible
financial consequences were the Union's claims sustained
The question is whether the log-keeping figured in
Daphne's decision to discharge or whether Daphne dis-
charged Grosse because of his growing irritation over
Grosse's independent attitude and, as he termed it, "talk-
ing back," with the March 5 incident the proverbial final
straw
Daphne recited eight incidents which led to his decision,
after the March 5 incident and his March 6 conversation
with Grosse about it, to discharge Grosse These incidents
(and one involving a Grosse complaint of an alleged con-
tract violation) shall be detailed below The findings there-
upon (and the 8(a)(1) findings) illustrate the observations
contained in the second paragraph of this section of the
Decision
In December 1974, in the dressing room at the Church
Street mortuary, Grosse stated to Daphne that his pay-
check was not correct, Daphne asked Grosse if he meant
the hour overtime he was paid, Grosse replied in the affir-
mative, Daphne asked what was wrong with the overtime
payment, Grosse stated that he was asked to direct a ser-
vice and, under the contract, an embalmer is entitled to a
fee of $30 for directing a service and he was only paid
$9 14, which is an hour of overtime at the regular rate,
Daphne replied Grosse did not understand the contract,
that was not the way it was, Grosse said he had read the
contract and that was the way he understood it, Daphne
stated Grosse had not been around long enough to know
what the contract meant, Grosse replied that he had asked
Barcewski about it before he billed Daphne for the $30 and
Barcewski had told Grosse he was acting correctly under
the contract, Daphne said Barcewski did not know what
the rule was either, and Grosse closed the conversation by
stating that he would forget it this time but for Daphne
never to ask him to direct a service again
Daphne testified one of the reasons he discharged
Grosse was his displeasure over the fact Grosse took sal-
vage clothing from the mortuary without securing permis-
sion therefor Salvage clothing is clothing removed from
deceased persons when clothing other than that worn on
arrival is supplied by relatives for funeral service and buri-
al The mortuary follows the practice of giving such cloth-
ing to charitable organizations at regular intervals (when a
sufficient amount has accumulated) Grosse conceded he
took some garments and did not secure advance permis-
sion therefor
While it is true Daphne never announced any rule
against employees' taking of such clothing, nor spoke to
Grosse about the matter (he learned of Grosse 's taking the
clothing from Galloway), it is clear that Grosse's action
displeased Daphne
A second reason which incurred Daphne's displeasure
was Grosse's use of the embalming room phone to make
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personal calls and Grosse 's objection to Daphne 's adjust-
ing the phone so it could only receive incoming calls
After noting Grosse making personal outside calls after
he thought he had the embalming room telephone adjusted
so no outside calls could be made, Daphne contacted the
telephone company and had the embalming room phone
again adjusted so only incoming calls could be received on
it Grosse complained to Daphne over the change , assert-
ing there were many times he was alone in the mortuary at
night (his working hours were 12 noon to 9 p m) and he
would have no way to communicate outside if he became
sick or were attacked
The next incident which displeased Daphne was the
opening, without his permission, of a window in the em-
balming room which had been nailed shut, which he attri-
buted to Grosse There is no question that the window had
been nailed shut, that the nails were removed and the win-
dow opened , and that Daphne, seeing this, had the window
again nailed shut While Daphne testified Galloway told
him Grosse opened the window and Galloway testified he
told Daphne he did not open it and could not speak for
Grosse and Grosse denied opening the window , it is clear
Daphne believed he was the culprit
Daphne next stated that another reason he was vexed
with Grosse was because Grosse spent too much time at
the business offices of the mortuary He was unable to
pinpoint the times or reasons Grosse was at the office, fi-
nally stating he saw Grosse at the office 20 to 30 times over
the 8-month period of Grosse 's employment He conceded
Grosse had legitimate reasons for visiting the offices from
time to time Daphne's real reason for his dissatisfaction
over the visits emerged when he testified Grosse simply
stared at him and refused to reply when he asked Grosse
what he was doing at the office
While Daphne stated he was also dissatisfied with
Grosse's work , stating Grosse was unclean and careless in
his work performance , Galloway and Barcewski testified
Grosse was neat and meticulous (even more so than they
were) and Grosse never was disciplined for his alleged poor
work performance I do not credit Daphne on this com-
plaint
The next incident which incurred Daphne's wrath was
Grosse's parking of his car where Daphne parked his own
car, and arguing with Daphne when ordered to cease so
parking Daphne observed Grosse's car parked under the
canopy at the front entrance and asserted the car blocked
the entrance so visitors had to walk around it for ingress
and egress He told Grosse not to park there and Grosse
protested against his instructions to cease parking there
Galloway and Grosse testified they regularly moved
their cars from the parking lot to spaces between the front
entrance and a side entrance to the mortuary after Daphne
and others left for the day They testified they moved their
cars to that location for security reasons, since Galloway
was mugged one evening while going to his car in the un-
lighted parking lot when his shift ended at 9 p in They
testified their cars did not block ingress or egress to the
mortuary
The evidence is undisputed that Daphne and his family
parked under the canopy in front of the entrance all day
and that Galloway and Grosse did not move their cars up
to that area until after the family had departed and normal
daytime traffic had ceased
Galloway and Grosse testified that, when Daphne ob-
jected to their parking near the entrance, they ceased to
park there Grosse testified that before doing so he object-
ed strenuously to Daphne 's order, recited the security rea-
sons for which Galloway and Grosse parked near or at the
entrance , and argued with Daphne that their procedure
was reasonable and did not block anything, to which
Daphne replied that only he and his family could park at
the entrance
The next and precipitating event , which Daphne recited
as the "final straw" which caused him to discharge Grosse,
was Grosse 's leaving work early on March 5 without per-
mission and against a contract rule and company require-
ment
Grosse left the mortuary 21 minutes before the 9 p in
end of his shift on March 5 and did not call Daphne for
permission to leave early before departing
That evening , a number of visitors were still at the mor-
tuary to view one deceased and attend an 8 p in memorial
service for another at the time Grosse left The Company-
Union contract requires a licensed embalmer be present at
the mortuary premises at such times in the absence of man-
agement The only other mortuary employee on duty at the
time was Bernard Gignac , a chauffeur While Grosse asked
Gignac to remain until everyone left and Gignac did so,
Gignac was alone at the mortuary from approximately
830pm to937pm
When Daphne learned of the incident the following day,
he approached Grosse and they had the following ex-
change Daphne asked Grosse whether he left early the
previous night, Grosse replied that he had, Daphne asked
him why he left early, Grosse replied that he had run an
errand for Daphne the day before on his own time which
consumed approximately half an hour and he thought he
would take that time back , l i Daphne asked Grosse why he
had to be so exact about his time, Grosse said he was not
being exact about his time, in fact, he had not even asked
for reimbursement for the extra gas he used to run the
errand or for the parking fee he had paid , Daphne said he
let Grosse park free on his property at the mortuary and
perhaps he ought to charge him $5 a day for parking,
Grosse replied that was up to Daphne, and Daphne closed
the conversation by stating that Grosse's day of reckoning
was coming
The last reason assigned by Daphne for discharging
Grosse was his alleged insubordination The alleged insub-
ordination consisted of Grosse 's "talking back" to Daphne
There are ample instances set out above of what Daphne
meant, however reasonable Grosse's arguments and objec-
tions may have been
Based on the foregoing, I find that the basic reason for
Daphne's decision to discharge Grosse was his dislike of
Grosse and his displeasure at Grosse 's independent atti-
tude and tendency to challenge or question any action or
instruction by Daphne with which he disagreed , Daphne
ii
Grosse's testimony is uncontradicted that he performed the errand in
question prior to reporting to work at his regular starting time and is cred-
ited
DAPHNE SAN FRANCISCO FUNERAL SERVICE
clearly knew that all three of the embalmers were keeping
logs and, while his concern and resentment over their
maintaining such logs is clear (see the 8(a)(1) finding en-
tered above), in my view the preponderance of the evi-
dence will not support a finding that Daphne discharged
Grosse because he kept a log but, rather, supports a finding
that Daphne discharged Grosse because he disliked
Grosse, resented Grosse's independent attitude, and be-
came enraged at Grosse's replies when he attempted to
censure him over leaving early on March 5
I therefore find and conclude that the Company did not
discharge Grosse for engaging in union and/or other pro-
tected concerted activities and will recommend that those
portions of the complaint so alleging be dismissed
CONCLUSIONS OF LAW
1 At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act
2 At all times pertinent, Daphne, the president of the
Company, was a supervisor and agent of the Company
acting on its behalf
3 In early February, again in mid-February, and on or
about March 1, the Company violated Section 8(a)(1) of
the Act by Daphne's interrogation of Galloway concerning
his and other employees' union and/or other protected
concerted activities and by threatening Galloway with his
and other employees' discharge for engaging in union and/
or other protected concerted activities
4 The Company did not discharge Arthur Grosse for
engaging in union and/or other protected concerted activi-
ties and did not violate Section 8(a)(1) and (3) of the Act
by discharging Grosse
5 The Company did not violate Section 8(a)(1) or (3) of
the Act other than as set forth in paragraph 3, above
6 The above unfair labor practices affect interstate
commerce as defined in the Act
THE REMEDY
Having found the Company engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend the Company be directed to cease and desist
therefrom and to take affirmative action designed to effec-
tuate the purposes of the Act
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 12
465
Cathay (Wah Sang) d/b/a Daphne San Francisco Fu-
neral Service, San Francisco, California, its officers, agents,
successors , and assigns, shall
1 Cease and desist from interrogating its employees
concerning their and other employees' union and/or other
protected concerted activities and threatening its employ-
ees with discharge for engaging in such union and/or other
protected concerted activities
2 Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act
(a) Post at its premises copies of the attached notice
marked "Appendix " 13 Copies of such notice shall be fur-
nished to the Company by the Regional Director for Re-
gion 20, signed by an authorized representative of the
Company and posted upon receipt thereof, and maintained
for at least 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken to in-
sure that such notices are not altered, defaced, or covered
by other material
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
13 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
their activities or the activities of other employees on
behalf of Mortuary Employees' Union, affiliated with
Seafarers' International Union of North America,
AFL-CIO, or any other labor organization, or any
other concerted activities protected under the Nation-
al Labor Relations Act, as amended
WE WILL NOT threaten our employees with discharge
for engaging in activities on behalf of the above Union
or engaging in any other concerted activities protected
under the Act
CATHAY (WAH SANG) d/b/a DAPHNE SAN
FRANCISCO FUNERAL SERVICE