Doug Neal Management Co.

National Labor Relations Board - Board Decisions

Nov 17, 1976

226 N.L.R.B. 985 (N.L.R.B. 1976)

DOUG NEAL MANAGEMENT COMPANY 985
Doug Neal Management Company and International
Union of Operating Engineers , Local No. 20, AFL-
CIO. Cases 9-CA-10032 and 9-RC-1 1357
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
November 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On August 13, 1976, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified below.
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 as modified
below and hereby orders that the Respondent, Doug
Neal Management Company, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order as
modified below:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Charles F. Grooms, George R.
Smith, and Kenneth Epperson immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, and make Grooms, Smith, and Epperson
whole for any loss of earnings they may have suf-
fered by reason of the discrimination against them,
in the manner set forth in the section of the Adminis-
trative Law Judge's Decision entitled `The Rem-
> >,e y.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which all parties participated,
it has been found that we violated the Act. We have
been ordered to post this notice and to abide by what
we say in this notice. The Act gives all employees
these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge or refuse to reinstate
employees for engaging in union or concerted
activities with other employees for their mutual
aid and protection.
WE WILL offer to Charles F. Grooms, George
R. Smith, and Kenneth Epperson immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their senior-
ity or other rights or privileges, and make
Grooms, Smith, and Epperson whole for any
loss of earnings they may have suffered by rea-
son of the discrimination against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed under Section 7 of the
Act.
DOUG NEAL MANAGEMENT COMPANY
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This con-
solidated proceeding was heard before me on June 28,
1976, at Cincinnati, Ohio. The charges in Case 9-CA-
10032 were filed on February 9, 1976, by the International
Union of Operating Engineers, Local No. 20, AFL-CIO
(herein called the Union). Thereafter, on April 15, 1976,
the General Counsel for the National Labor Relations
Board (herein called the General Counsel and the Board,
respectively) issued a complaint against Doug Neal Man-
agement Company (herein referred to as the Company or
226 NLRB No. 157
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent), alleging violations of Sections 8(a)(1) and
(3) and 2(6) and (7) of the National Labor Relations Act,
as amended (29 U.S.C. Sec. 151, et seq.) in that the Respon-
dent allegedly discharged George Roy Smith, Charles F.
Grooms, and Kenneth Epperson and thereafter refused to
reinstate them because of their protected union sympathies
and activities in order to discourage union membership
Additionally, the complaint alleges the discharge and re-
fusal to reinstate Kenneth Epperson was a part of a pattern
designed to penalize employees for their union activities.
The Respondent timely filed an answer denying the com-
mission of any unfair labor practices and asserting certain
affirmative defenses more fully discussed hereinafter.
In Case 9-RC-11357, pursuant to a petition filed by the
Union on January 19, 1976,1 and an agreement for consent
election executed and approved on February 2, an election
was conducted on February 12 in a unit consisting of all
stationary engineers employed by the Respondent at its
Cincinnati, Ohio, location at the Kroger Building. The tally
of ballots showed no votes cast for the Union, no votes cast
against the Union, and four challengedballots which were
therefore determinative of the results of the election. No
objections to the conduct of the election were filed. On
April 16, the Regional Director for Region 9 of the Board
issued his report on election, order consolidating cases, or-
der transferring case to the board, order directing hearing
and notice of hearing wherein he sustained the challenge to
the ballot of one Byron Ballard, directed a hearing on the
eligibility of Charles T. Grooms, George R. Smith, and
Kenneth Epperson (the latter three being the alleged dis-
criminatees in Case 9-CA-10032), and consolidated Cases
9-CA-10032 and 9-RC-11357 for hearing.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the posthearing
briefs filed on behalf of the General Counsel and the Re-
spondent, I make the following.
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS
The complaint alleges, the answer as amended at the
hearing admits, and I find, that the Respondent is a sole
proprietorship engaged in the management of an office
building in Cincinnati, Ohio, known as the Kroger Build-
ing where, since commencing operations on December 15,
1975, Respondent has received gross revenues which, pro-
jected over the following 12-month period, will exceed
$100,000, and has furnished services, which projected over
the same period, will exceed $25,000 in value, to enterprises
which, during the past 12 months, a representative period,
have shipped goods and materials valued in excess of
$50,000 from points in the State of Ohio directly to points
outside the State of Ohio; and that Respondent is and has
been at all times material an employer engaged in opera-
tions affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
i All dates are in 1976 unless otherwise specified
11. LABOR ORGANIZATION
The complaint alleges, the answer as amended at the
hearing admits, and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts Relating to the Discharge 2
Doug Neal Management Company came into existence
as a sole proprietorship on or about December 15, 1975, at
which time ownership of the Kroger Building, the facility
involved herein, passed to the Realty Income Trust. Prior
to this time, since about September 1974, Mr. Neal had
been employed as the building manager by the predecessor
owner of the building. At the time of the December 15,
1975, changeover chief engineer Kenneth Epperson and
shift engineers George Roy Smith, Charles F. Grooms, and
Byron Ballard, who had also worked for the precedessor
owner, were retained in their jobs as employees of the Re-
spondent All four were, and had been for several years,
members of the Union and their membership status was
known by Doug Neal since his advent as the building man-
ager in September 1974. Although it appears that the four
were paid union wages it also appears there was no collec-
tive-bargaining agreement between the Union and Neal or
his predecessor
At the time of acquisition, or within a few weeks at most
thereafter, the new owners secured a new tenant, Kenner
Products, for whom extensive demolition, remodeling, and
repair of the premises and the equipment therein was es-
sential before Kenner could take up occupancy. Floors 10
through 17, wherein Kenner was to be located, had been
unoccupied for 6 or 7 years.
In early January, prior to January 6, the general contrac-
tor performing the Kenner renovation work on the build-
ing called in Perfection Heating Company to remove some
Z The facts set forth herein are based on a synthesis of the credited aspects
of the testimony of all witnesses, the exhibits, and careful consideration of
the logical consistency and inherent probability of the facts Insofar as cred-
ibility of witnesses is concerned with regard to specific incidents, I credit
Epperson and Smith whenever their testimony conflicts with that of Neal
because I found them to be more convincing in both demeanor and consis-
tency of testimony than Neal, who tended to deal in generalities and conclu-
sions and whose testimony is internally inconsistent in many respects and,
in part, given in response to leading questions on significant material points
I note specifically that the statements made to Epperson by Neal on Janu-
ary 19 and 20, as testified to by Epperson, closely parallel Smith's report of
the conversation between him and Neal on February 6, which stands un-
contradicted Furthermore, Neal's representations as to the chronological
sequence of his decisions and actions relating to the work to be performed
by Perfection Heating Company are contradictory one with the other and
do not agree with the testimony of Shaw, president of Perfection and a
witness called by the Respondent. whom I find to be a more candid and
believable witness than Neal although I discount Shaw's testimony, as well
as the testimony of others, to the extent it is conclusionary I also find it
passing strange indeed that no representative of the owner, Realty Income
Trust, was called to corroborate Neal's averments regarding his instructions
from the owner, but I find it unnecessary to rely on this failure to adduce
supporting evidence in reaching my credibility findings in view of the other
credibility related considerations summarized above which lead me to dis-
count Neal's assertions relating to his instructions from the owners The
testimony of any witness inconsistent with or contradictory of the facts
found is discredited
DOUG NEAL MANAGEMENT COMPANY 987
existing duct work, piping, air-conditioning units, and re-
lated equipment, and otherwise check out the air handling
equipment on floors 10 through 17 which would be utilized
by Kenner Products the future tenant. Edwin Shaw, presi-
dent of Perfection, was contacted by Neal, on January 6,
who asked Shaw to give him a bid on performing an in-
spection of the air handling equipment on the remaining
floors of the building and presenting recommendations
based thereon. This included the cleaning of cooling coils,
which required the use of a high pressure steam cleaner
owned by Perfection, and the replacement of defective or
worn belts and pulleys. Neal does not possess a steam
cleaner and the coils had been cleaned in the past by Ed
Wilson Duct Cleaners. The air handling units were cleaned
and repaired in January and, after the first part of Febru-
ary, Perfection cleaned the boilers and inspected the boiler
safety controls and filled valves. This latter work appears
to have been incidental to an interim authorization by Neal
on February 4 or 6 to automate the boilers. The final au-
thorization to perform the cleaning service was not re-
ceived by Perfection until February 13, and an agreement
between Neal and Perfection for the service and mainte-
nance of the entire cooling and heating system was not
finalized until on or about March 10.
In the midst of all these transactions relating to the heat-
ing and cooling system, Neal called Epperson to his office
on January 17 and told him that he wanted to reduce over-
time, discharge night shift engineer Ballard, and retain
Grooms and Smith at a raise in wages. Neal said that if
they didn't like the raise he would give them 3 weeks' sev-
erance pay. Epperson was offered the job of Building Su-
perintendent with a $20-a-week wage increase, private of-
fice and work clothes furnished, and 3 weeks' vacation.
Epperson replied that he would like to think it over and
Neal asked him to report his decision on Monday, January
19. After leaving Neal's office, Epperson reported to Smith
what Neal had said and called Union Business Agent In-
man to tell him of Neal's proposals. Epperson and Inman
agreed to have a meeting of the union members affected on
January 19. On the morning of January 19 a meeting was
held at Inman's office with Inman, Epperson, Grooms, and
Smith present. They decided to file a petition with the
Board in an attempt to secure a contract with the Respon-
dent, and all employees present gave signed authorization
cards to Inman. The petition in Case 9-RC-11357 was
filed with the Board's Region 9 office at 10:10 a.m. on
January 19, according to the time stamp on the document.
On the afternoon of January 19, Neal called Epperson to
his office, and advised him that he had been visited by
Inman who had informed Neal of the employees' action.
Neal went on to tell Epperson that the employees had gone
at it all wrong, it was unnecessary, and they could have
settled the situation without going to the Board. Epperson
answered that the employees had to do it that way, and
Neal then commented that what was done was done and
the only thing he had wanted to do was layoff one man.
On January 20, Neal again called Epperson, together
with Neal's secretary, into the office and said that he could
not discuss anything "with," which I interpret to mean
"pending with," the NLRB unless there was a witness pres-
ent, but continued on to state, "I couldn't offer you a bet-
ter fob if I wanted to . . . . This could have been avoided,
all I wanted to do was lay off one person , one engineer,
Byron Ballard and I was going to divide his wages among
the three engineers ." At this point Epperson remarked that
Neal had , at some time previous , said he would not care if
the employees had a contract . To which Neal retorted,
"Yes, but that was when Del Webb owned the building."
On February 2, the Company and the Union executed,
and the Regional Director for Region 9 approved an agree-
ment for consent election in Case 9-RC-11357 in a unit of
all stationary engineers.
On February 4, at 3 p.m., Neal called Grooms and Ep-
person into his office and told them that , although he dis-
liked it , Realty Income Trust had terminated the engineers,
that he had never worked with nicer guys and would give
them a reference on request . Grooms asked if that meant
they were fired and Neal affirmed that they were terminat-
ed. When Epperson then told him that this was not the end
of the situation, Neal acknowledged that he knew this and
advised "you guys do your thing ." Neal then collected the
employees ' keys and gave them their paychecks.
After the meeting with Neal , Epperson called Smith,
who was not at the meeting because he had gone home
from work , and told him he had been terminated. Smith
took his keys in to Doug Neal on February 6, whereupon
Neal drew him aside and told him , "Roy . . . this
shouldn ' t have happened . . . . You fellows went at this all
wrong . I only wanted to get nd of Byron Ballard , get nd of
this night run . . It is costing us $25,000.00 a year ." Smith
interjected that the engineers had saved Neal $50,000 in
gas expense . Neal continued , " I could have given you and
Charlie Grooms a dollar an hour . . . . In fact , I was going
to give you and Charlie Grooms a dollar an hour. . . . I
am sorry it happened this way. . I am going to have to
call in a servicing contractor."
The election in Case 9-RC-11357 was then held on Feb-
ruary 12 and all four separated engineers were challenged
by the Respondent on the ground they were discharged
prior to the election.
B. Contentions and Conclusions Respecting the Discharges
In sum, the General Counsel contends that the dis-
charges were prompted by the action of the employees in
meeting with the Union, signing authorization cards, and
thereby causing the petition in Case 9-RC-11357 to be
filed. Respondent, on the other hand, contends that the
terminations were affected pursuant to a fixed resolve by
Realty Income Trust from the beginning of its ownership
to automate the equipment tended by the engineers for
business and economic reasons, and were a natural conse-
quence of that automation.
I agree with the General Counsel and find that, while it
is possible some consideration was being given to automa-
tion prior to the discharges, the immediate adoption and
acceleration of the automation process was but a further
implementation of the Respondent's discharge of the engi-
neers, and that no decision to automate had ripened at the
time of discharge but was merely one of alternatives being
considered. This conclusion is supported by Neal 's state-
ment to Smith on February 6, after the discharges, that he
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have to call in a servicing contractor and Shaw's
testimony that he was told to take over the work on Febru-
ary 4 or 6. Logic requires a finding, and I find, that Shaw
was told to take over the work on February 6 after Smith
was told by Neal that a servicing contractor would have to
be called in. The Respondent presented no credible evi-
dence of economic necessity and Neal's offer of a salary
increase to the engineers remaining after Ballard's con-
templated discharge militates against the defense of eco-
nomic necessity, as does Neal's own claim that he told
Epperson, after the decision to automate had been made,
that if he eventually found he did not need Grooms and
Smith as engineers he would reclassify them as mainte-
nance employees. Therefore, from Neal's own testimony
comes an admission that the engineers involved herein
were to be retained in some capacity even if automation
was effected.
The statements of Neal to Epperson on January 17 clear-
ly promise continued employment to Epperson, Grooms,
and Smith without the slightest indication the engineers
were to be terminated, as do Neal's later repeated state-
ments to Epperson and Smith that he only wanted to ter-
minate one engineer , Ballard. If I were to accept the Re-
spondent's contention that it intended and planned to
terminate the engineers as early as December 1975, I would
then have to conclude that the Respondent's execution of
an election agreement on February 2 was with foreknow-
ledge, uncommunicated to the Union, the Board, or the
engineers, that the entire bargaining unit was to be de-
stroyed prior to the election on February 12 and was there-
fore a consummate act of deceit. I do not conclude thus.
Rather, I conclude that the Respondent, while not averse
to employee union membership, was opposed to its em-
ployees securing the protection of a union contract. This is
made clear by Neal's statement to Epperson on January 20
that he was not opposed to a union contract with the previ-
ous owner. Viewed in the context of the entire conversa-
tion, this statement amounts to a thinly veiled declaration
by Neal that his firm wanted no union contract. Added to
Neal's statements to Epperson and Smith, on January 19
and February 6, respectively, that they were wrong in
going to the Union, Neal's expressed opposition to a union
contract clearly reveals the underlying motivation for the
discharges. Faced with an election which would pre-
dictably result in certification of the Union as the collec-
tive-bargaining representative of the engineers, given the
known membership status of all the engineers, and thereby
compel him to bargain for a contract which he did not
want, Neal decided to discharge the engineers without
prior warning to camouflage the discharges under the um-
brella of automation, and to escape, what was to him, the
distasteful prospect of a bargaining relationship required
by law.
For the foregoing reasons, I conclude and find that the
Respondent discriminatorily discharged Epperson,
Grooms, and Smith and thus destroyed the entire voting
unit, in violation of Section 8(a)(1) and (3) of the Act be-
cause they had the temerity to engage in protected union
and concerted activities for the purpose of securing effec-
tive union representation through a Board election and a
resultant collective-bargaining agreement.
C. The Refusal to Reinstate
Contentions and conclusions
The Respondent submits that, even if it be found that
Epperson, Grooms, and Smith were unlawfully discharged,
its admitted refusal to reinstate them is entirely without
taint of illegality because (1) there is no engineer job to
which to reinstate them, and (2) since their termination the
Respondent has discovered evidence showing them to have
been negligent and irresponsible in the performance of the
duties assigned to them.
If Respondent's first argument were true, then all an em-
ployer bent on illegal discharges need do to escape the
remedy therefore is to eliminate the job, whether by auto-
mation or otherwise. I do not accept this conclusion, for
the obvious consequence would be to provide an employer
bent on discrimination with a convenient insulation against
the backpay consequences of his unlawful acts and would
stimulate rather than deter violations of both the letter and
the spirit of the Act. Nor can I conclude, as Respondent
suggests, that there was no work available for Epperson,
Grooms, and Smith after their discharge. First, I reject the
contention by Neal that the engineers were not needed
prior to February 4 because the simple fact is that they
continued to do the work they had done for years up to the
date of their discharge and it necessarily follows that the
work needed to be done. I cannot find that the Respondent
was merely giving them work on a charitable basis because
there is no credible evidence to even suggest such a situa-
tion, such an act by Respondent would be inconsistent
with its claim of a need to economize, and immediately
upon their discharge Perfection began to perform those du-
ties and continues to perform them. Further, Neal con-
cedes that at least until mid-March the boilers continued to
be operated in the same way as they had for some 18 years,
and Shaw testified that the agreement between Respondent
and Perfection providing for service and maintenance was
not finalized until on or about March 10 and some areas of
the building had not as yet been changed over at the time
of the hearing.
In support of argument (2) the Respondent affirmatively
pleaded the following reasons for finding Epperson,
Grooms, and Smith unsuitable for reinstatement, based on
evidence purportedly discovered by the Respondent after
the February 4 discharges:
(a) Said employees failed to service and maintain
the fans, coils, and filters in the air handling units, as
a result of which said units were so dirty that they
were only operating at one-third of their capacity.
(b) Said employees failed to furnish preventive
maintenance, as a result of which the recirculating
pumps on the air-conditioning chillers were required
to be rebuilt.
(c) Said employees failed to either report or correct
gas leaks to the two main gas boilers, thereby subject-
ing the entire building and all of its occupants to the
danger of explosion and fire.
(d) Employee Epperson negligently determined
that it was necessary to install a larger fan to increase
DOUG NEAL MANAGEMENT COMPANY 989
the velocity of air on the third floor of the building,
resulting in the unnecessary expenditure of in excess
of $4,000.00.
(e) The employees failed to service the pneumatic
controls that operate the heating and cooling system
on each floor.
(f) The employees failed to inspect and maintain
the fire alarm system to the extent that the system
became inoperable , thereby subjecting the building
and its occupants to the risk of damage and injury
from a fire.
(g) The employees failed to inspect , service , and re-
place the belts and pulleys on the heating , ventilating,
and air-conditioning equipment , as a result of which
the management of the building incurred unnecessary
expenses , and the occupants of the building were un-
able to enjoy proper heating and cooling of their
space.
(h) Employee Epperson certified that the sprinkler
system in the building had been tested when in fact
no inspection or testing had been done , causing Re-
spondent to incorrectly advise its insurance career
and governmental authorities that the system was in
good operating condition.
In its posthearing brief to me , the Respondent only ad-
verted to reasons (a) and (c) in support of its contention
that the discharged employees should not be reinstated.
At hearing , the Respondent proffered no evidence and
none was adduced in support of reasons (d) and (f), and,
after considerable testimony thereon indicating that Epper-
son was not at fault , withdrew reason (h). As to reason (a),
Epperson made a written recommendation to Neal in De-
cember 1975 that the coils, ducts, fans, and "amostats" be
cleaned in all air handling units, and it is clear from the
record that the engineers did not possess the specialized
equipment necessary to clean the coils and that the clean-
ing of the equipment had been performed in the past by Ed
Wilson Duct Cleaners because the engineers lacked the
equipment to do so. With regard to (b), Epperson testified
credibly that there was a contract with Trane Company to
service air-conditioning chillers and Respondent proffered
no probative evidence in support of contention (b). Epper-
son also credibly testified with respect to reason (c) that the
gas leak in question had existed since the building opened
and that efforts had been made to eliminate it pursuant to
suggestions of a factory representative, without total suc-
cess . Notwithstanding the conclusionary testimony by
Shaw that the gas leak posed a critically dangerous situa-
tion , I would observe that it was not considered sufficiently
dangerous to cause the evacuation of the existing tenants
of the building, or, so far as it appears from the record, to
even call it to their attention . The great destructive force of
gas explosion is so well known as to be beyond dispute,
therefore I sincerely doubt that the engineers would have
worked in a situation fraught with imminent danger of ex-
plosion , that such a danger would have gone unnoticed by
the governmental and insurance inspectors who made an-
nual inspections , or that the Respondent would have cal-
lously concealed such a risk from the tenants or casually
taken upon itself the tremendous legal liabilities to the ten-
ants and contractors working in the building inherent in
such a situation even after the danger was discovered.
From all that appears in the record business went on as
usual with no apparent alarm . I therefore conclude that
reason (c) is a gross exaggeration at best , and reject it as
grounds for refusing reinstatement . I further find that the
engineers performed the operations referred to in items (e)
and (g) within the financial limitations placed on them by
the previous owner as credibly testified to by Epperson
Apart from the fact that Respondent has now apparently
abandoned all but reasons (a) and (c) and I have found all
reasons on which evidence was adduced to be without mer-
it, I also find that the proffer of reasons (d), (f), and (h)
without any ground therefor and the unconvincing and
pretextual nature of the other reasons advanced to void the
duty of reinstatement are persuasive evidence of the Re-
spondent 's unlawful motivation . Pacemaker Corporation,
120 NLRB 987, 991 (1958)
I therefore conclude and find for the reasons herein-
above set forth that the Respondent 's asserted reasons for
refusing reinstatement are without merit , that the refusal of
reinstatement is but an attempt to perfect the unlawful dis-
charges, and that the refusal to reinstate is, as were the
discharges , unlawful retaliation for the employees ' resort to
the Union to secure an election and a contract with the
Respondent . Accordingly, I find the refusal to reinstate to
be not only a continuation of the discriminatory discharges
but also independently violative of Section 8(a)(1) and (3)
of the Act.
IV. THE CHALLENGED BALLOTS
The eligibility of Epperson , Grooms, and Smith as voters
in the election held on February 12 in Case 9-RC-11357
depends solely on whether or not they were discriminato-
rily discharged on February 4 in violation of the Act and
thus remained employees of the Respondent on the date of
the election . I have decided this issue affirmatively and
found that all three were discharged and refused reinstate-
ment in violation of Section 8(a)(1) and (3) of the Act. It
follows that they were eligible voters on the date of the
election and I recommend to the Regional Director for
Region 9 of the Board that their ballots be opened and
counted.
V THE REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require the Respon-
dent to cease and desist therefrom , and, in view of their
serious nature which effectively destroyed the entire poten-
tial bargaining unit , to cease and desist from infringing
upon the Section 7 rights of its employees in any other
manner. Moreover , my recommended Order will affirma-
tively require the Respondent to offer Charles F. Grooms,
George R . Smith , and Kenneth Epperson immediate and
full reinstatement to their former jobs without prejudice to
their seniority or other rights and privileges . It will be fur-
ther recommended that the Respondent be ordered to
reimburse Charles F. Grooms, George R. Smith, and Ken-
neth Epperson for any loss of pay they may have suffered
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a result of its discriminatory action against them, in the
manner set forth in F. W Woolworth Company, 90 NLRB
289 (1950), together with interest computed thereon at 6
percent per annum in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Charles F. Grooms, George R. Smith,
and Kenneth Epperson, and refusing thereafter to reinstate
them, the Respondent discouraged membership and activi-
ty in a labor organization and discriminated against said
employees in regard to tenure of employment, thereby en-
gaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act. 0
4. By the acts and conduct described in 3, above, the
Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act and thereby engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
Respondent , Doug Neal Management Company, Cin-
cinnati , Ohio, its officers , agents , successors , and assigns,
shall:
3 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, 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
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees in regard to hire or tenure of
employment, or any term or condition of employment be-
cause of their union or protected concerted activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Charles F. Grooms, George R. Smith, and
Kenneth Epperson immediate and full reinstatement to
their former positions without prejudice to their seniority
or other rights previously enjoyed, and make each whole
for any loss of pay or other benefits suffered by reason of
the discrimination against them in the manner described
above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at Respondent's place of business at the Kroger
Building, Cincinnati, Ohio, copies of the attached notice
marked "Appendix " 4 Copies of said notice on forms pro-
vided by the Regional Director for Region 9, after being
duly signed by the Respondent, shall be posted immedi-
ately upon receipt thereof, and shall be maintained by the
Respondent for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 9-RC-11357 be severed
and remanded to the Regional Director for Region 9 for
appropriate disposition under the agreement for consent
election in conformance with the findings herein.
A In the event the Board's Order is enforced by a Judgment of the 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 "