Florida Cities Water Co.,

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 755 (N.L.R.B. 1980)

FLORIDA CITIES WATER COMPANY
Florida Cities Water Company and Albert Kralick
and Arthur Leopold and Giovanni Rappa and
Local Union No. 1240, Laborers' International
Union of North America, AFL-CIO. Cases 12-
CA-7987, 12-CA-8034-1, 12-CA-8194, and 12-
RC-5410
February 4, 1980
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On August 6, 1979, Administrative Law Judge
George Norman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed
cross-exceptions and a supporting brief, and Respon-
dent filed an answering brief to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge, as
modified below, and to adopt his recommended Order,
as modified herein.'
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
interrogating employees, creating the impression of
surveillance, threatening to discharge employees, and
refusing to allow its employees the use of its truck and
Respondent 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 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. 138 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. We note that. by
typographical error, the Administrative Law Judge stated that the organizing
campaign began in September 1978, whereas in fact it began in 1977. This
inadvertent error, however, does not affect our conclusion herein.
I Respondent contends that the Board should not assert jurisdiction over it
because it is not an employer as defined in the Act and does not retain
sufficient control over its employees to enable it to engage in meaningful
bargaining with a labor organization. It argues that because its profits and.
therefore. its wages and benefits, the hours of operations, and the duties of the
employees and their training and skill requirements are all regulated by the
State. the government is, in effect, the employer. we find no merit in this
contention. Respondent is an investor-owned, for-profit, private water and
sewer utility company operating in Sarasota County. Florida. pursuant to a
franchise from that county. While Respondent is subject to various regual-
tions concerning its operation. the record shows that it hires and discharges
the employees involved, directs their work, and determines their wages and
benefits, and thus has sufficient-if not ull-control over their working
conditions to enable it to bargain meaningfully with a union. Accordingly, we
find that Respondent is clearly an employer within the meaning of Sec. 2(3) of
247 NLRB No. 111
rental equipment,' and that it violated Section 8(a)(3)
and (1) of the Act by discharging employee Giovanni
Rappa because of his union activity. We also agree
with the Administrative Law Judge's sustaining the
challenges to the ballots of Norman Arnold and
Steven Schepp. For the reasons set forth below,
however, we do not adopt the Administrative Law
Judge's dismissal of the complaint allegation that
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging employee Albert Kralick and Arthur
Leopold.
Respondent is an investor-owned private water and
sewer utility engaged in the water sewer treatment
business at various locations in Florida. At its facilities
in Sarasota, which are alone involved herein, Respon-
dent employs 19 employees, including, at least before
their discharges, employees Kralick and Leopold.
1. Kralick, a senior employee, signed a union
authorization card and passed out union cards to
fellow employees in September 1977.' Kralick was
outspoken in favor of the Union and discussed it
frequently with other employees. Kralick, during his
tenure with Respondent, performed all of the jobs
involved at the facility except lab technician and had
occasionally assisted in the training of new employees.
In September, Kralick maintained the lift stations,
checked the pumps, drove a sludge truck 3 or 4 hours
a day, and, at Respondent's expense and through its
sponsorship, attended a school where he was learning
to be a wastewater plant operator. 6 In the middle of
September, Respondent's division manager, Good,
told Kralick that some of the lift stations were not
being maintained satisfactorily. (Heavy rains were
causing problems with the pumps in the lift stations.)
On October 4, Kralick was terminated purportedly for
not doing his job at the lift stations.
the Act and that the assertion of jurisdiction herein in warranted. See The
Natural Gas Utility District of Hawkins County. Tennessee. 167 NLRB 691
(1967).
'The Administrative Law Judge recommended that the Board issue a broad
order requiring Respondent to cease and desist from violating the Act "in any
other manner." However, we do not find Respondent's conduct in this case
egregious enough to warrant the issuance of such an order. Consequently, we
shall substitute the Board's narrow order, requiring Respondent to cease and
desist from violating the Act "in any like or related manner," for the provision
recommended by the Administrative Law Judge. See Hickmost Foods Inc.
242 NLRB 1357 (1979). Member Jenkins would find that the broad order is
necessary.
' The Administrative Law Judge included the backhoe in the list of
equipment that employees were denied the use of by Respondent after the
Board-conducted election. However, the record indicates that employees used
the backhoe after the election. Nevertheless, this error does not affect our
finding that Respondent denied its employees personal use of trucks and
certain equipment after the election.
'All dated hereafter refer to 1977 unless otherwise indicated.
' The Administrative Law Judge erroneously states that the employees were
dismissed from this school at 2:30 p.m.. permitting Kralick to return to his job
where he spent 3 or 4 hours a day in the afternoon driving a sludge truck. The
record, however, shows that the employees who attended the school were
dismissed at 2:30 p.m. from work to attend class.
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge found that there was
no evidence that Respondent knew of Kralick's union
activity. Accordingly, he dismissed the complaint's
allegation that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Kralick. We
disagree.
It is well established that knowledge of union
activity can be inferred from circumstantial evidence,
including the size of the plant, the timing of the
discharge, and the pretextuous reasons asserted for the
discharge.' Here, Good told an employee that he had
been aware of the union campaign long before
Respondent was served with the petition in mid-
November. Further, as indicated above, Respondent's
Sarasota work force consisted of only 19 employees,
and Kralick openly expressed his views in favor of
union representation to other employees, including
those who were against the Union, and passed out
union cards while at work. Thus, not only did
Respondent have knowledge of the union campaign
early on, but it can be inferred from the small size of
the work forces and Kralick's outspokenness in favor
of the Union that Respondent was aware of Kralick's
union sympathies at the time it discharged him. This
inference is also supported by the timing of the
discharge, which occurred within weeks of Kralick's
becoming involved in the union campaign.
Finally, Respondent's reasons for the discharge
appear to be clearly pretextual. Kralick was a senior
employee who had worked at all phases of Respon-
dent's operation, except lab technician, had a perfect
attendance record, had never received a written
warning, and had received only one oral warning.
During September, Kralick, as he told Good after his
discharge, could not possibly have maintained the lift
stations as they should have been maintained because
he was performing other duties for Respondent as
listed above, as well as attending school. Indeed, his
attendance at school required him to leave work at
2:30 in the afternoon. Also, heavy rains during this
period caused much of the problems with the lift
stations. In these circumstances, Respondent's assert-
ed reason for dismissing Kralick does not ring true.
Moreover, it is highly unlikely that Respondent
would, at its expense, send Kralick to school to
become a wastewater plant operator if it was dis-
pleased with his work.
In view of the foregoing, we conclude Respondent
had knowledge of Kralick's union activity and that the
Marsden Electric Company, Inc., 226 NLRB 1097 (1976); and Wiese Plow
Welding Co., Inc., 123 NLRB 616 (1959).
' Tom's Ford, Incorporated. 233 NLRB 23 (1977); and Rose Tool 4 Plastics.
Inc.. 218 NLRB 506(1975).
' The election was conducted on December 22 pursuant to a Stipulation for
Certification Upon Consent Election. The tally was seven votes for, and five
against, the Petitioner; there were four challenged ballots. The Board agent
challenged Kralick's ballot on the grounds that his name was not on the voter
claimed reason for his discharge was pretextual.
Accordingly, we find that Respondent discharged
Kralick because of his union activity in violation of
Section 8(a)(3) and (1) of the Act.'
2. Leopold was hired as an operator trainee for a 90-
day probationary period on September 27. Shortly
thereafter, Leopold signed a union authorization card
given him by Kralick. Leopold was also outspoken in
expressing his prounion sentiments, including discuss-
ing the Union with antiunion employees Manderville
and Williams. Leopold required a short, on-the-job
"breaking-in period" of only 2 to 2-Y weeks, after
which he worked virtually unsupervised on the night
shift. The Board-conducted conducted election was
held on December 22. On December 27, while Good
was on vacation, Leopold's probationary period end-
ed. Upon returning from vacation on January 5, 1979,
Good asked Chief Operator Schepp and licensed
operators Manderville and Williams for written evalu-
ations of Leopold and trainees Bailey and Majors.
Leopold and Majors were discharged on January 10,
1979. Bailey, who had also engaged in union activity,
was not terminated.
The Administrative Law Judge found that Respon-
dent was not aware of Leopold's union activity and
that, therefore, Leopold was not discriminatorily
discharged in violation of Section 8(a)(3) and (1) of the
Act. We disagree. Respondent's knowledge of Leo-
pold's union activity may be inferred from the fact
that Respondent's operations, as discussed in detail
above, are small and that Leopold openly expressed
his prounion sentiments while at work to fellow
employees, including antiunion employees Mander-
ville and Williams, who evaluated him.'° Furthermore,
there is no question that Respondent was aware of the
union campaign at the time that it discharged Leo-
pold, as the discharge occurred after the election.
Also, the evidence compels us to find that Leopold
was not discharged for his poor work record and
attitude as asserted. Leopold's breaking-in period was
a mere 2-y: weeks, after which he was placed on the
night shift where he worked by himself. It is undis-
puted that, except for a 2-hour overlap of shifts,
Leopold worked without supervision. Further, Leo-
pold never received a warning about his work and, in
fact, Manderville, just prior to giving Leopold a bad
evaluation, had told Leopold that he had reported to
Good that Leopold's work was fine. Thus, the record
does not indicate that Respondent was displeased with
eligibility list. We find that Kralick was an eligible employee in light of our
finding that he was unlawfully discharged. However, since three of the
challenges have been sustained, we find it unnecessary to order his ballot to be
opened and counted as Kralick's challenged ballot is not determinative. As
the revised tally shows seven votes for and five against the Petitioner, we shall
issue a Certification of Representative.
,o Marsden Electric Company. Inc.. supra. and Wiese Plow Welding Co.,
supra.
756
FLORIDA CITIES WATER COMPANY
Leopold's performance prior to his discharge. Conse-
quently, we conclude that Respondent's asserted
reason for discharging Leopold lacks substance. The
Board has held that where an employer asserts a false
reason for discharging an employee it can properly
infer that the real reason for the discharge was
unlawful." Such an inference is clearly warranted
here, especially since the only other basis suggested by
the facts for the discharge is Leopold's union activity.
Therefore, we find that Respondent's asserted reason
for the discharge was pretextual, and that, in light of
Respondent's demonstrated union animus, Leopold
was terminated because of his union sympathies.
Accordingly, we find that the discharge of Leopold
violated Section 8(a)(3) and (1) of the Act.'2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Florida
Cities Water Company, Sarasota, Florida, its officers,
agents, successors, and assigns, sball take the action
set forth in the said recommend Order, as so modified:
1. In paragraph l(c) substitute "In any like or
related manner ... " for "In any other manner
2. Substitute the following for paragraph 2(a):
"(a) Offer Albert Kralick, Arthur Leopold, and
Giovanni Rappa immediate and full reinstatement to
their former positions or, if those positions are no
longer in existence, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination practiced
against them in the manner set forth in the section of
this Decision entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local Union No. 1240,
Laborers' International Union of North America,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of all
the employees in the following appropriate unit for the
purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment:
Included: All production and maintenance
employees employed by the employer at its
Sarasota, Florida, facility.
Excluded: Office clerical employees, guards,
and supervisors as defined in the Act.
"E. Mishan A Sons. Inc., 242 NLRB 1344 (1979).
" The fact that union adherent Bailey, who was evaluated at the same time
as Leopold, was not terminated does not preclude us under the circumstances
of the present case from finding a violation with respect to Leopold's
discharge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization To form, join,
or assist any union To bargain collectively
through representatives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection and to refrain from the exercise of
any such activities.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT discharge employees because of
their union membership, activity, or support.
WE WILL NOT coercively interrogate employ-
ees concerning their union activities.
WE WILL NOT threaten employees with dis-
charges for engaging in union activities.
WE WILL NOT create the impression of surveil-
lance of employees concerning their union activi-
ties.
WE WILL NOT refuse to allow our employees to
use our trucks and rental equipmemt because
they have engaged in union activities.
WE WILL offer Albert Kralick, Arthur Leo-
pold, and Giovanni Rappa immediate and full
reinstatement to their former positions or, if those
positions are no longer in existence, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges
previously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered by reason of the discrimination practiced
against them.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
FLORIDA CITIES WATER COMPANY
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION II. THE LABOR ORGANIZATION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: The
hearing in this case was conducted in Sarasota, Florida, on
July 19, 20, 21, 26, 27, and August 1, 1978. The unfair labor
practice charges were filed on the following dates: Case 12-
CA-7987, December 12, 1977; Case 12-CA-8034-1 on
January 19, 1978; and Case 12-CA-8194 on May 16, 1978.
The Order directing hearing on challenges in 12-RC-5410
raised by the challenges to the ballots of Steven M. Schepp,
Norman R. Arnold, Albert Kralick and Connie Spragg was
issued on January 27, 1978. On June 27, 1978, an order
consolidating cases issued, ordering that Case 12-CA-8194
be consolidated with 12-CA-7987, 12-CA-8034-1, and 12-
RC-5410, for hearing.
The principal issues presented in the unfair labor practice
cases are whether Florida Cities Water Company (herein
called Respondent), violated Section 8(aX1) and (3) of the
National Labor Relations Act, as amended, by discharging
three employees because of their union and related protected
concerted activities and whether they violated Section
8(a)(1) of the Act by interrogation of employees concerning
their union activities, informing employees pay raises were
being held up because of the Union, threatening discharge of
employees because of union activities, and refusing to allow
employees to use certain equipment because of their union
activities.
Upon the entire record, including my observation of the
witnesses and after due consideration of the brief filed by
counsel for the General Counsel,' I make the following:'
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is a Florida corporation engaged in the water
and sewer treatment business at various locations in the
State of Florida, including its facility located at Sarasota,
Florida. During the past 12 months, a representative period
of time, Respondent has had gross revenues in excess of
S500,000 and during the same period, Respondent has
purchased and received materials at its various Florida
locations valued in excess of $50,000, which were shipped
directly to it from suppliers located outside the State of
Florida. Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I Respondent did not file a post-hearing brief and did not make final oral
argument.
By undated memorandum duly served on September 25, 1978, on the
parties, counsel for Respondent served notice that it had substituted the firm
of Hogg. Allen, Ryce & Norton, PA, 225 Alcozaro Avenue, Coral Gables,
Florida, through its counsel Susan Potter Whisenand, as its attorney and that
it will no longer be represented in this matter by the firm of Madigan, Parker,
Gatlin, Swedmark & Skelding. Tallahassee, Florida.
' The findings herein are based on record evidence and testimony,
sometimes disputed. Though the findings may not contain or refer to all the
Local Union No. 1240, Laborers' International Union of
North America, AFL-CIO (herein the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES'
A. Background
Respondent, an investor-owned private water and sewer
utility is engaged in the water and sewer treatment business
at various locations in the State of Florida. The facility
located at Sarasota, Florida, is the only facility involved in
these proceedings. In Sarasota County, Respondent has two
plants, about 10 miles apart, South Gate and Gulf Gate.
Respondent has 19 employees in its Sarasota division
including 8 wastewater treatment plant operators, 3 field
personnel, a meter reader, a lift station operator, 2 lab
technicians, a commercial clerk and a division manager. The
Gulf Gate plant operates two shifts, all other areas operate
one shift.
The field crew consists of three employees and their
normal duties include the installations of watermeters, water
and sewer services, watermeter settings, repair of water
mains, repair of sewer mains and manholes, and any
emergency work on any of the distribution system of the
water and/or the collection system of the sewer. Occasional-
ly, the field crew also handles customer complaints.
All the sewers have pipes leading to one or the other of the
plants which comprise two separate systems although they
are interconnected. Larry Good, the division manager, is in
charge of personnel operation and maintenance of the
Sarasota division.
Respondent's system in the field consists of 40 lift stations
which are operated and maintained by the field crew. The
raw sewage from the homes and other buildings enters the
force main and then goes into a lift station which is both a
holding area and a pumping station. The field operator's
primary job is to maintain the lift stations and to insure that
the pumps are operating properly and the float balls which
regulate operation of the pumps are clean.'
B. The Union Activity
Employees Chester Van Horn, Connie Spragg, and Albert
Kralick initiated and were among the most active in the
organization drive among Respondent's employees. Begin-
ning about September 1978, they solicited the signing of
union authorization cards and received signed cards from
Arthur Leopold and Giovanni Rappa, among others.
The organization efforts culminated in a Board-conducted
election and, pursuant to a Stipulation for Certification
evidence, all has been considered. Any testimony contrary to the findings has
not been credited. Credibility resolutions have been made on the basis or the
whole record, including the inherent probabilities of the testimony and the
demeanor of the witnesses.
A float ball is a round object which is hooked into a power panel. It takes
two float balls to activate a pump and when the pump is activated its function
is to lower the level of the lift station. When the level of the stations meets the
ball, the ball tilts on its side and when both float balls reach a certain height
the pump is activated.
758
FLORIDA CITIES WATER COMPANY
Upon Consent Election, an election was conducted on
December 22, 1977, in Case 12-RC-5410.' Upon the
conclusion of the election a tally of ballots showed that of
approximately 16 eligible voters, 16 cast ballots, of which 7
were cast for and 5 were cast against the Petitioner. There
were four challenged ballots which are determinative of the
results of the election. The four challenged ballots are Albert
Kralick and Connie Spragg challenged by the Board as not
being on the voting eligibility list and Steven M. Schepp and
Norman R. Arnold, challenged by the petitioner who alleged
they were supervisors and therefore ineligible to vote. No
objections to the election or to the conduct affecting the
results of the election were filed by either party.
On December 12 and 14, 1977, Cases 12-CA-7987 and
12-CA-7987-2 were filed by Albert Kralick and Connie
Spragg, respectively, alleging that the employer had termi-
nated their employment in violation of Section 8(aX)() and
(3) of the Act. After an investigation by the Regional
Director of the unfair labor practice charges and of the
challenged ballots, Case 12-CA-7987-2 was withdrawn by
the Charging Party, Connie Spragg, with the approval of the
Regional Director on January 27. Footnote 2 of the Order
directing hearing and challenges and consolidated cases for
hearing dated January 27, reads as follows:
2 Thus, there being no unfair labor practice charge
pending in her behalf, it would be concluded that at all
times relevant in this matter, Connie Spragg was not an
employee of the employer on the election date and
therefore ineligible to vote in accordance with estab-
lished Board rules.
However, in the body of the order it was stated that based
on the evidence developed in the investigation of charges in
Cases No. 12-CA-7987 and 12-CA-8034-1 upon which the
consolidated complaint is based in part, the Regional
Director concluded that the final determination of the
eligibility of Albert Kralick and Connie Spragg can best be
determined through that proceeding.'
C. The Challenged Ballots
With respect to Albert Kralick the evidence indicates that
he was terminated for cause in the first of October 1977.
There is no evidence to support a conclusion that Respon-
dent was aware of Kralick's union activity prior to or at the
time of his termination.' According to Respondent, Kralick
was terminated because he had not been performing his job
in a workman-like manner. Accordingly, inasmuch as Albert
Kralick was terminated for cause and not because of his
union activity which at the time, was not known by
Respondent, I find that he was not discriminatorily dis-
charged in violation of the Act and, accordingly, was not an
employee eligible to vote in the election.
' The stipulated unit was described as follows:
Included: All production and maintenance employees employed by the
employer at its Sarasota. Florida, facility.
Excluded: Office clerical employees. guards, and supervisors as defined in
the Act.
'In the circumstance, I assume that the inclusion for consideration in these
proceedings of the challenge to Connie Spragg was not intended.
D. Connie Spragg
Connie Spragg was hired by Larry Good on September 1,
1976, as a laboratory technician and was employed by
Respondent until November 30, 1977. Connie Spragg
contends that she was fired, but Larry Good testified that
she quit.
According to Larry Good, on about September 24 or 25,
Spragg came to his office and told him she had another job
and that he had better start looking for another lab
technician. Good then asked her why she wanted to leave
the job and she said she wanted more money and wanted to
obtain her "C" license in water. Good told her that
Respondent had a water plant and that although it was not
active, he could get her the time and experience to enable her
to get her water license if she wanted it that badly. He also
told her that if she passed her exam for a "C" license in
wastewater that she would get an automatic 25 cents an hour
raise. Good said they talked for some time, but she still said
she was going to take the other job and left.
Good then went through his files on lab technician
applicants and talked to a consultant of Respondent who
referred a man who was interviewed and hired the next day.
Good then phoned Spragg and told her that he already had a
lab technician in line who was going to start work the
following Monday and that her last pay period would end on
December 10.'
A short time later, Spragg called Good back and told him
she was not quitting; he would have to fire her. Good said,
"Well, as far as I was concerned, when you came into my
office and told me that you had another job and I'd better
start looking for another lab technician, you were giving me
notice." Spragg replied, "No, I'm not giving you notice; I'm
still going to work there, and you're going to have to fire me,
and that's it."
Good was informed that she was going to work for the
City of Sarasota and that she wanted to change her hours
from days to nights in the lab so she could work days for the
City of Sarasota. He told Spragg he did not have any
schedule providing for a night shift at the lab and that the
moment she started to work days for the City of Sarasota
and did not show up for work for Respondent she would be
terminated.
Spragg, in response to the question why she left Respon-
dent's employ, testified that she was offered a job with the
City of Sarasota, and that it was a very nice job, but that the
problem was that she was "involved in union activity and I
didn't want to leave." She was then asked about the problem
or conflict that she had and whether she talked to Larry
Good about it. She said she told Larry Good, "I was offered
another job and I'm very interested in it, and I'm consider-
ing taking it. I'd be able to get my C license in water, and I'd
like that. The pay isn't that good over here, and I've been
thinking about taking another job. I just wanted to warn you
that I was thinking about it." She further testified that
'The discharge of Albert Kralick will be discussed in greater detail, infra.
'Connie Spragg's role as an employee is examined herein only to the extent
that it affects the allegation of the complaint.
* Spragg was apparently on an off day and was not at work when Good
called her.
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was in the process of working with Hillsboro
County, and she did not want to leave the lab in the lurch if
she was going to go. She said that Larry Good told her to
please reconsider and think about it.
When asked what she told Good after he informed her of
her termination, she testified, "I repeated again that I didn't
quit and that if I'm going to leave I want to see some paper
in front of me saying that I was fired. I said I wanted to
work until December 25, Christmas, for some extra money
too." She was then asked if she had any other reason for
desiring to work until Christmas, she answered, "The union
vote was on December 22, and I didn't find out about when
the date would be until right after I left the meeting with
Larry Good on the 23rd of November or December yeah,
November."
Q. And what you're saying is that you wanted to stay
at least until you could vote, until that time?
A. I wanted to, yeah.
On the basis of the testimony of Larry Good, whom I
credit, Connie Spragg quit and was not fired as she
contended. Good answered questions directly, unhesitating-
ly, and completely. He demonstrated confidence and was
consistent in what was said and by whom on the occasions in
question, On the other hand, Spragg was uncertain, con-
fused, and evasive. At first she testified that she was hesitant
about taking the other job because she wanted to vote and
later she testified that she did not learn of the date of the
election until after she had talked to Good. I believe that she
did tell Good that she had another job and that she was, in
effect, giving him notice. Apparently, after discussing the
matter with her colleagues and/or the union representatives,
she decided to change her position concerning what she first
told Good to make it appear that she was terminated.
Assuming arguendo she was terminated, inasmuch as there
is no evidence that Respondent had any knowledge of her
union activity or that such termination was for reason of her
union activity or to prevent her from voting in the upcoming
election, it was not an unlawful termination. Therefore, she
was not eligible to vote anyway.'°
E. The Supervisory Status of Steven M. Schepp and
Norman R. Arnold
Steven Schepp started working for Respondent on Sep-
tember 11, 1975, as an operator trainee. He was hired by
Larry Good who at the time was the chief operator. In
August 1976, Schepp obtained a "C" license and in August
1977, he obtained a "B" license. He was promoted to chief
operator on January 11, 1977. By memorandum of that date,
from C. A. Osborne to Sarasota division employees, Respon-
dent stated as follows:
To: Sarasota Division Employees
Date: January 11, 1977
City
From: C. A. Osborne
Subject: MEMO # 21
"' She withdrew her unfair labor practice charge after an investigation. The
withdrawal was approved by the Regional Director. If there had been any
There have been some changes in the Sarasota Divi-
sion's Supervisory Staff. Effective as of January 4, 1977
the following changes were made:
L. L. Good now has the title of Assistant Division
Manager and General Superintendent. Larry shall
work even more closely with the day-to-day division
problems.
Steve Schepp now has the title of Chief Operator.
Steve will work with the Treatment Plant Operators
to keep our AWT plants operating as effeciently (sic)
as possible, exceeding all required standards.
Norman Arnold has become the Field Foreman of
Sarasota Division. Included among Norm's many
duties are overseeing lift stations, inventories, the
field personnel and such other duties as determined
to be needed.
I wish to congratulate these men upon their promotions
and stress to all concerned the need for all to work
together as a team. Our Division is a team effort-with
each of our jobs vital to the proper functioning of the
Sarasota Division.
Schepp testified that after his promotion he told the
employees he was an assistant division manager. He made
more money than any of the nonsupervisory employees at
the time he left Respondent's employ in February 1978.
Schepp conducted interviews with respect to the hiring of
John Bailey and Margarette Rathburn. According to
Schepp, Larry Good wanted Schepp's input (opinions and
recommendations) regarding the hiring of employees. Em-
ployees asked Schepp about pay raises and time off, and he
prepared work schedules and approved overtime. With
respect to the termination of employees, Larry Good gave
much weight to the recommendations of Chief Operator
Steven Schepp. Schepp never sent an employee to the office
to be terminated who was not as a result terminated.
On the basis of the foregoing, I find that Steven Schepp
was a supervisor within the meaning of the Act, and
therefore was not eligible to vote in the representation
election.
As in the case of Steven Schepp, Norman Arnold, by
memorandum dated January 11, 1977, quoted above, was
also promoted. He became a "Field Foreman." His duties
included overseeing lift stations, inventories, and field
personnel and such other duties as needed. Norman Arnold
terminated Bob Shea in 1977 and was responsible for the
termination of Giovanni Rappa.
Field employees reported each day to Arnold who gave
them assignments and approved their requests for time off.
When hired, employee Robert Knight, a field crewman,
reported directly to Arnold for assignments. In addition,
Arnold, Osborne, Good, and Schepp were specifically
authorized by memorandum dated January 26, 1977, from
C. A. Osborne as the only personnel permitted to purchase
on Florida Cities Water Company's charge accounts. The
uncontroverted testimony of employee James Klenovic was
that he was hired in December 1977. Larry Good, who hired
him, told him that he would work in the field and that
merit to the charge that she was fired in violation of the Act, it would have
gone to complaint.
760
FLORIDA CITIES WATER COMPANY
Norman Arnold would be his field foreman and that he was
to report to Arnold. Finally, Larry Good checked on the
field crew only once every 2 or 3 weeks inasmuch as Arnold
was in charge of the field crew. On the basis of the foregoing,
I conclude that Norman Arnold was a supervisor within the
meaning of Section 2(11) of the Act and therefore ineligible
to vote in the representation election.
F. The Termination of Albert Kralick
Albert Kralick was hired in December 1973 and dis-
charged on October 4, 1977. Kralick signed a union
authorization card at the request of Connie Spragg, and, in
turn, passed out union cards to fellow employees Art
Leopold and Jim Lasiter in September 1977. Leopold
testified that he signed a union card on September 30, 1977,
which had been given to him by Kralick at the South Gate
office. Kralick discussed the Union and union cards with
Chester Van Horn who was known to be strong for the
Union. Kralick was outspoken in favor of the Union and
talked frequently to other employees about it, including
employee Bill Burnett in September who was against the
Union.
On October 4, 1977, Chief Operator Steven Schepp told
Kralick he was terminated for not doing his job. A few
minutes later, out in the parking lot, Division Manager
Larry Good told Kralick he was terminated for not doing
his job at the lift stations. Kralick told Good that he could
not possibly maintain the lift stations as they should be
maintained because he was going to school (a 3-week
program in September sponsored and paid for by the
Respondent), driving sludge trucks, and having to perform
other duties like pulling pumps out of lift stations."
Although Kralick testified that he had not received any
written or oral warnings about not keeping the lift stations
clean enough, Larry Good whom I credit, testified that he
told Kralick that some of the lift stations were not being
maintained satisfactorily. The employees were dismissed
from the school at 2:30 p.m. permitting Kralick to return to
his job where he spent about 3 or 4 hours a day in the
afternoons driving a sludge truck until 5 p.m.
Notwithstanding, the foregoing possible justifications for
Kralick's alleged unsatisfactory performance, as discussed
supra, there is no evidence that Respondent had knowledge,
either directly or inferentially, of Kralick's union activity.
Nor is there any evidence that Kralick was terminated
because of his union activity. Accordingly, I shall recom-
mend the dismissal of those allegations in the complaint
pertaining to the alleged unlawful termination of Albert
Kralick.
G. The Discharge of Arthur Leopold
Arthur Leopold was hired by Respondent as an operator
trainee at the South Gate plant on September 27, 1977, and
was terminated on January 10, 1978.
Leopold signed a union authorization card on September
30, at the behest of Albert Kralick at the South Gate office.
" At the time there was much trouble with the pumps because of heavy
rains.
" He said, but for his vacation, he would have terminated Leopold at the
expiration of his 90-day probationary period.
Leopold was outspokenly in favor of the Union and
discussed it frequently with employees Chester Van Horn,
Jimmy Lasiter, Connie Spragg, and John Rappa. He
expressed his prounion sentiments to antiunion employees
Charles Manderville and Gene Williams who according to
the record herein have been neither alleged nor proven to be
supervisors within the meaning of the Act. Both Manderville
and Williams along with Schepp evaluated Leopold's perfor-
mance during his 90-day probationary period. Again, as in
the case of Leopold, there is no probative evidence that
Respondent was aware of Leopold's union activities or
sentiments.
Leopold was an operator trainee at the South Gate
treatment plant and was terminated shortly after his 90-day
probationary period expired. Larry Good testified that he
was on vacation in the last week in December and the first
week of January and, as soon as he came off his vacation, he
terminated Leopold' on the basis of an evaluation of work
requested by Good of licensed operators, Steven Schepp,
Charlie Manderville, and Gene Williams. Good said that he
asked those three individuals for the evaluation because they
were the only three certified operators working for Respon-
dent at the time. The other operators were operator trainees.
Good testified that from his own experience observing
Leopold; from reading the logs concerning his performance;
and in discussions with other operators at the plant who
worked with Leopold, he decided that Leopold didn't show
the desired interest to be a certified operator and there was
no use wasting their time on him trying to teach him
something that he didn't want to learn. At the time,
Manderville was also a probationary employee, but he was a
licensed "B" operator. The request for the evaluation of
Leopold's work occurred simultaneously with the request
for evaluations of the work of John Bailey and Bob Majors.
As a result of the evaluations Leopold and Majors were
terminated."
Based on the foregoing, in the absence of evidence of
knowledge by Respondent of the union activity of Leopold, I
find that Leopold's discharge was not discriminatory in
violation of the Act. Accordingly, I shall recommend that
those allegations of the complaint alleging the discriminato-
ry discharge of Leopold be dismissed.
H. The Discharge of Giovanni Rappa
Giovanni Rappa was hired on August 9, 1976. On
October 13, 1977, Rappa signed a union membership card
given to him by Connie Spragg. Rappa was terminated on
May 11, 1978, by Division Manager Larry Good upon the
recommendation of Norman Arnold who sent Rappa to
Good's office on that day.
In November 1977, Charles Osborne, construction and
engineering coordinator for Respondent, had a conversation
with Rappa about the Union. Osborne told Rappa that if the
Union came in he would have to pay union dues and the
Union would not be good for the people. Rappa responded
that the Union would protect or secure his job. Osborne
responded, "Not really. Any time the Company wanted to
" John Bailey who was also engaged in union activity along with Leopold
was retained.
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminate a man it could find a good reason to terminate
him." Osborne testified that he had such a conversation with
Rappa but his version was that he told Rappa that if a man
was not doing the proper job, no union in the world would
protect him or save his job. I credit Rappa and not Osborne
whose memory appeared to be good or bad depending upon
the questions that were asked him and by whom. On the
other hand, Rappa was candid and responded quickly and
directly to all questions notwithstanding the fact that his
command of English was not the best. He spoke with a
foreign accent, but that impediment had no effect on his
memory or consistency.
At or about the time of the discussion with Osborne,
Rappa had a conversation with Foreman Norman Arnold
concerning the Union. At the time, Arnold and Rappa were
on a company truck on the job. Arnold told Rappa, "All the
unions are [no] good and they don't do any good for the
people. All the people should not vote for the Union, should
have no union." (The foregoing is a quote from Rappa's
testimony concerning what Arnold told him.) Rappa replied,
"Unions always are good, you know, and some ways; they
got the good and bad parts but-and he said, 'not believe in
unions, unions no good."' Rappa also told him that unions
protected the job, "More secure of the job."
Rappa testified that in November, about a month before
the election which was held on December 22, 1977, "I said
to Charles Osborne that time, 'I worked with the Union
before and doesn't matter to me; union come in, I work with
the Union. If the Union not coming in, I work without. It
doesn't matter.'"
After the election sometime in January 1978, Rappa was
told by Norman Arnold that he was on a one-man-job,
inferring that he was to be working alone and not with
others, as he had before. In the past, Rappa worked with
others, including employee Bob Knight.
Soon after the election, Larry Good came on to the job
and told Rappa that "lately he has been working too
slowly," that he was "milking" the job, that he took "too
much time." Rappa told Good that he has been one man
working the job and that he can only do one man's job and
since he was not any longer allowed to use a backhoe it was
taking him longer, but that he would try to do the best he
could on the "one man" job.
On one occasion, Rappa was assigned to clean the rust
from the manhole risers and to put them back together, he
testified that Good came to him and said, "I got something
to tell you. Lately you're loafing the job, again you're too
slow." And he continued, "I don't complain about the
quality of the job you're doing, but you're slow on the job
and you have to do better; you have to pick up speed or else
I gonna give you 3 days off or terminate you." Rappa
responded, "I try to do my best like I told you before in the
past, I only am one man, only got two hands; I can do the
job of one man." Rappa testified further that Larry Good
never criticized him before the election and that Norman
Arnold told him his work was good and that he was one of
the best men in the field.
" Rappa testified that he discussed his inability to withstand contact with
raw sewage with Arnold in the summer of 1977 when they were working at
the Umatilla lift station. A pump had to be replaced and Arnold told Rappa
On another occasion the job required that Rappa cut a 4-
inch piece of galvanized pipe. He called Foreman Arnold on
the radio and asked if he could rent a pipe cutter. Arnold
said no, that Larry Good wanted him to do it by hand.
Rappa then proceeded to use the hacksaw to cut the pipe.
Rappa also testified that after the election he was not
permitted to rent any more equipment, that he had to dig
ditches with a shovel instead of a backhoe, cut pipes with a
hacksaw instead of a pipe cutter, and no longer was
permitted to take the Company truck home as he did before
the election. On at least two occasions, after he laid sod,
Larry Good ordered that pictures be taken of Rappa's work
product in the event there were any complaints concerning
the quality of his work.
The event that precipitated Rappa's termination occurred
at a job on Bonviva Avenue and Bee Ridge Road. Arnold
told Rappa that he would have to go inside the manhole and
pump out some raw sewage and after the manhole was
cleaned out he would have to do brick repair work inside the
manhole. Rappa testified as follows:
And I told Arnold, "Norman, you know I got the
problem; I can't go inside the manhole. This happened
to me before."
And Norman says, "That's part of the job."
I say, "Well, Norman, I can't answer this, but if you
force me to go inside the manhole, but you know I get
sick cause this happened to me before."
He said, "I don't care. You have to go inside. Put you
rubber boots and get inside there."
So I put my rubber boots, and he lowered the ladder,
and I went inside the manhole. I stood about 5 or 6
minutes and I got panic; I got sewage all the way up to
my knees, I singly come out because I start to get sick;
so I come out from there and tell Norman, I says, my
body can't take this punishment. I can't its not, I refuse
to do but I can't do it.
He said, "Well then you have to go see Larry Good.
Don't stand around here. Go see Larry Good."
So I got in the truck, went to the office, and I wait for
Larry Good. Then about 15, 20 minutes Larry Good
came into the office and talked to me outside. He says,
John he said I'm worried about the problem he says
what happened with Norman.
And I tried to explain to him, and he said, "Can't give
you the privilege to you not to go in the manhole and
send somebody else."
"But Larry you know the problem I have, I can't. My
body can't take the punishment. I can't, my body can't
take the punishment."
And Larry says, "The best thing can do for you and the
company and me is terminate you."
So I replied back, "If that's what you want to do then
go ahead and do it.""
to go inside the lift station; Rappa told Arnold that he could not. Arnold told
him he had to go but Rappa refused. Arnold became angry and said he'd go in
762
FLORIDA CITIES WATER COMPANY
Rappa testified that he discussed his problem with going into
the manholes with Larry Good shortly after he was offered
the job to be a lift station operator. Rappa told him he did
not like that job, to which Good replied, he should at least
try it. So Rappa agreed to take the job for 2 weeks, after
which he went back and told Good that he could not do that
job, because any time he smelled the sewage in the lift station
while cleaning the float balls it made him sick, especially
after lunch, and caused him to vomit. Therefore, he told
Good he could not do the job. Rappa told Good that if he
had any other work which did not require him to go down
into lift stations or manholes that he would be glad to do
that kind of work. Rappa testified that Good replied,
"That's good enough John. That's it you've done your fair.
Go back and work in the field."
Larry Good testified that the circumstances of Giovanni
Rappa's discharge started about February 1978. He said:
John's work started deteriorating rapidly. He was
taking 2 and 3 hours to set meters that should normally
have taken maybe 15 to 20 minutes. The quality of his
work was deteriorating terribly. He had to go, or other
people had to go back over his jobs and redo them or we
had to send him back to redo the job. We started getting
some complaints from customers on the jobs that he
was doing, particularly, there was two jobs that he was
supposed to resod and did terrible work and had to go
back and redo the jobs.
My own personal experience, I talked to him once I
believe it was in March about the quality of work he
was doing and the speed.
He was told to set a meter, and he couldn't find the
main right away so he had to probe for the main, and I
told him about digging a trench and he was sent over at
8:00 in the morning, and I arrived about 10:00 in the
morning, about 2 hours after he had gotten there and he
had a trench about 4-foot long and 4-inches deep and
about a foot wide dug in the 2 hour period." (When
Good was asked how long it should have taken, he said,
about 10 to 15 minutes.)
On another occasion, according to Good, customers
complained about the sodding so he instructed Arnold to
take pictures of it. He testified further that they had a main
break at Merchants Point so he told Rappa to resod the area,
"to dress it out and resod it." Good said he drove by and saw
the job and saw how bad it was so he got on the radio and
told Arnold to get over there again with the crew and get it
straightened out and to take pictures of it."
With respect to the job that precipitated Rappa's termina-
tion, Good testified as follows:
About 1: 15 or so I came to the job. Norm was there by
himself, and he stated that John had been down in the
hole a couple minutes and came out and said he wasn't
going back down in that hole. And Norm told him well
you better go down to the office and see me. So John got
in his truck and left.
himself and did. Arnold said, "You know I could fire you for that." Rappa
replied, "Well if you want to fire me go ahead and do it." In disgust, Arnold
then told him not to drive the truck, that he could walk home.
" Pictures were introduced into evidence as Resp. Exhs. 18 and 20.
" The italicized words "nor had he ever really complained aboui working
So I then helped Norm do the job that had to be done
and about 20 minutes later left and went down to the
office, and John was waiting for me at the office.
I asked John what the problem was, and he stated that
he couldn't get down in the manhole and he wouldn't
get down in the manhole any more because he didn't
like the smell of it.
I said this was our business and you as the utility crew
have to go in the manhole from time-to-time. Nobody
likes it but I have been in them and I'll probably be in
them again, and everybody that works here from time-
to-time might have to get into one, and that he didn't
say anything to me that morning that it was bothering
him, nor had he ever really complained about working
around it or on an emergency basis and so forth. So I
told him at the time that I could not allow him not to
do this work and make other employees do the same job
and give him the privilege of not doing it; that it would
cause too much morale problems and due to his past
performance and everything, that I was just going to
terminate his employment, that he was no longer useful
as the utility service man to me.' [Emphasis supplied.]
Unlike the terminations of Kralick and Leopold, there is
no question that Respondent had knowledge of Rappa's
sympathies toward the Union, evidenced by his conversa-
tions with Osborne and Arnold. Rappa testified that his
problems started after the election. Good testified that
Rappa's work started deteriorating after the election or in
February 1978. After the election Rappa was assigned to
work alone wherein previously he worked with fellow
employee. He was denied the use of the rented tools which
would have made the job faster and easier. He was denied
the use of the company truck and it appears that he was
targeted for termination even though his past performance,
going back to 1976, was acceptable as "good" by Respon-
dent. By ordering pictures taken of Rappa's work, an
unprecedented action, Respondent revealed its plot to build
a case against Rappa."
Accordingly, I find that Rappa's termination was not for
the reasons offered by Respondent, which are pretextual, but
because Rappa was exercising his rights to engage in activity
in support of the Union. His termination was discriminatory
in violation of Section 8(a)(3) and (1) of the Act. I shall
recommend that the Board so find. The Huntington Hospital
Inc., 229 NLRB 253 (1977). Tayko Industries, Inc., 214
NLRB 84 (1974); Famet, Inc., 202 NLRB 409 (1973); Wiese
Plow Welding Co., 123 NLRB 616 (1959).
I. The Alleged Violations of Section 8(a)(1) of the Act
The allegations of the complaint alleging independent
8(a)(1) violations will be taken individually. The consolidat-
ed complaint alleges that since on or about October 20, 1977,
and continuing to date, Respondent has interfered with,
restrained, or coerced its employees in the exercise of their
around it or on an emergency basis ando forth. "appear to be carefully chosen
words whose implication could be that Rappa did complain about working in
manholes on a regular basis because it made him sick.
" It is ironic that the pictures do not show that Rappa's sodding job was as
bad as Respondent contends.
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act by the following
conduct:
I. By Norman R. Arnold, on or about October 21, 1977,
at its Sarasota, Florida, facility, questioning an employee
concerning his union activities, sympathies and desires.
Inasmuch as the evidence in the record does not substanti-
ate that allegation, I shall recommend that it be dismissed.
2. By Steven M. Schepp in November 1977, the exact date
being unknown, at Respondent's Sarasota, Florida, facility,
questioning an employee concerning his union activities,
sympathies, and desires.
The record shows by the testimony of Chester Van Horn
that during the month of November 1977, Van Horn had a
conversation with Schepp about the Union. Van Horn said
that in the latter part of November, at the Gulf Gate plant,
at about 2:30 in the afternoon, he was asked by Schepp how
he felt about the Union. Van Horn replied, "I think you are
aware, and the Company also, on how I stand with the
Union." Schepp replied, "Well, I can't understand why you
want it, anyway." That testimony was not controverted. I
find Schepp's statements constitute interrogation in violation
of the Act as alleged.
3. By Larry L. Good on or about November 18 or 19,
1977, at its Sarasota, Florida, facility, questioning an
employee concerning his union activities and telling that
employee that Respondent knew how many employees had
signed union authorization cards and which employees had
not.
In support of that allegation, John Bailey testified that on
or about November 26, 1977, he called Larry Good to the
plant because the scum pump was down and he couldn't find
anyone else to work with him on it, so Larry Good came,
and they worked on it together. Bailey said that while they
were working on the pump, "Out of the blue, he asked me,
'Why did you sign a union card, John?"' Bailey asked him
how he found out, and Good replied, "I know how many
people have signed cards and I know how many didn't sign
cards." Later on that same day, Good asked Bailey why he
signed the card for the Union, Bailey replied it was for job
security. Good told him that a union would not do them any
good, that they could not go on strike because of the Florida
laws, and if they went on strike they could be out of a job.
To controvert Bailey's testimony, Larry Good testified
that John Bailey came to his office with a personnel problem
he was having with employee Bill Hemchute, an operator
trainee at the Gulf Gate treatment plant. He said Bailey was
complaining that Hemchute was not doing any work and
that Bailey was doing all the work at the treatment plant and
not getting any credit for it; and that none of the other
operators was doing their jobs and he did not think that was
right. Bailey then told Good that that one of the reasons the
Union was coming in because Respondent was not treating
everybody right and that some people were doing all the
work and other people were not doing any work. He said
that Bailey told him that he had heard a lot of rumors on
union activities and that if Good wanted to he could
probably find more out, and Good said that he replied, "I
just don't care to know about it." Good testified, "I just
" Van Horn talked to Bill Burnett, who was antiunion. in September and
offered him a union pledge card which he refused. Inasmuch as that testimony
figured he (Bailey) was trying to use that to better his own
position."
With respect to the evening during which Bailey and
Good worked on the pump as testified by Bailey, Good
testified that the only conversation he had with Bailey was in
connection with getting the plant back in operation. Good
said they did not discuss the Union at that time that they
were too busy doing other things; they had other problems
to worry about, and he denied specifically that he asked
Bailey why he had signed a union card. He also denied
telling Bailey that they could not strike in Florida because of
the laws. Good also denied telling Bailey he knew who was
for or against the Union.
As previously indicated, I credit Good because he was
forthright, unhesitant, consistent, candid, and answered
questions responsively and promptly. Bailey did not impress
me that he was telling the truth with respect to that incident.
Accordingly, I shall recommend that that allegation of the
complaint be dismissed.
4. By Larry Good on or about November 23, 1977, at its
Sarasota, Florida, facility, telling an employee that employ-
ees' pay raises were being held up because of the Union.
With respect to the above allegation the General Counsel
attempted to prove it with the testimony of Connie Spragg.
Spragg testified that in her conversation with Good, after
she had notified him that she had been offered another job,
Good then told her that she would have gotten a raise of 45
cents plus 25 cents, "except with all the union activity going
on, all the union problems that there were, that the raises
were going to be held up, and if anything came out
nobody-nobody knew: Things were going to be held up."
Larry Good's testimony concerning his version of that
conversation contained no indication that the Union was
discussed. In addition, both witnesses testified that Good
attempted to get Spragg to change her mind and stay, and
both testified that the pay increases were discussed. It seems
unlikely that Good would have made those remarks con-
cerning her raises in the context of trying to keep her from
leaving.
I credit Good's version of that conversation and not
Spragg's. As I indicated earlier, Spragg was not forthright,
consistent, clear, nor had he good recollection when testify-
ing. Accordingly, I shall recommend dismissing that allega-
tion of the complaint.
5. By Larry L. Good on or about November 28, 1977, at
its Sarasota, Florida, facility, telling an employee that he
knew which employees had started the union movement
among Respondent's employees and soliciting grievances
from that employee.
Chester Van Horn testified that on or about November 28,
while he was standing out in front of the Gulf Gate plant,
Larry Good said to him, "Chet, I am aware of your position
with the Union. I know that you and Connie started the
Union because he was confronted by Bill,'" and then he
dropped the rest of it. And that he knew about the activities
long before the Company was served with the papers." On
that occasion, according to Van Horn, Good asked him why
he wanted a union anyway. Accordingly, I shall recommend
that an 8(a)(1) violation was committed by Respondent by
was uncontroverted, I will accept it as proof of the allegation. In addition, Van
Horn is a believable witness.
764
FLORIDA CITIES WATER COMPANY
that statement which, among other things gave the impres-
sion to employee Van Horn that the employees were under
surveillance with respect to their union activities.
6. By Larry Good on or about December 22, 1977, at
Sarasota, Florida, facility, threatening to discharge employ-
ees because of their union activities.
On December 22, 1977, after the election, Good and Van
Horn talked about the Union. Good said, according to Van
Horn's testimony, "Listen, I'm going to tell you something
right now, I'm getting sick and fucking tired of hearing
about this union shit business. He said, 'The first person I
catch fucking off, I'm going to send them down the road and
I don't give a damn who finds out about it." Good denied
this conversation, however, I credit Van Horn. I find that
the remarks constitute a threat and interference within the
meaning of Section 8(aX 1) of the Act and I shall recommend
that a violation be found.
7. By Steven M. Schepp on or about January 3, 1978, at
Respondent's Sarasota, Florida, facility, telling an employee
that Respondent was not granting pay raises to employees
because of the upcoming union election.
The testimony to support that allegation came from
General Counsel's witness John Bailey who stated that on or
about January 3, 1978, he had a conversation with Schepp as
follows:
I asked him, with all the union talk going around will I
still get my 25-cent raise because my probationary
period is up, and he says, 'Well, you should. I don't see
why not, but the company has put a hold on wage
increases until the outcome of the election." Schepp
denied having made that remark. For reasons previous-
ly stated, I credit Schepp and not Bailey. Therefore, I
will recommend dismissing that allegation.
8. By Norman R. Arnold on or about the night of January
10, 1978, at its Sarasota, Florida, facility, threatening to
discharge an employee because the employee was supporting
the Union.
In support of that allegation, Chester Van Horn testified
that on the evening of January 10, he had a conversation
with Foreman Norman Arnold while repairing a main break
at Belk-Lindsey. Van Horn testified that Norman Arnold
approached him and asked him why he called him to come
and check over this break. Van Horn replied, because of his
(Arnold's) knowledge of the lines. Arnold said, "Well I can't
understand it because you haven't talked to me since the
union vote." Then Arnold asked Van Horn why he hadn't
talked to him and Van Horn said, "Do you remember the
conversation we had in front of Poor Old Mac's?" Arnold
said he didn't remember. Arnold then told Van Horn he
couldn't understand why he wanted "the damn union," that
he hated Van Horn's guts and anybody that would have
anything to do with unions. Van horn testified that Arnold
was intoxicated at the time and he knew so because Arnold
could hardly stand up." Arnold denied this conversation.
Arnold was not a credible witness. He appeared weak,
uncertain, and hesitant while testifying. Accordingly, I shall
recommend that Respondent, by such threatening remark
violated Section 8(a)(1) of the Act.
i" Several witnesses testified that Norman Arnold often appeared drunk on
the job or that he had been drinking and had alcohol on his breath. Arnold's
drinking was known to his superior, Larry Good.
9. By Charles Osborne, on or about November 19, 1977,
(the exact date being unknown) at a jobsite of Respondent in
Sarasota, Florida, telling the employee that Respondent
could find an excuse to fire an employee for his union
activities.
That incident was discussed earlier in this decision in
connection with the termination of Giovanni Rappa. I
credited Rappa, not Osborne, with respect to what was
stated and Rappa's testimony supports and proves the
allegation. Accordingly, I shall recommend that a violation
of Section 8(a)(1) be found with respect to Osborne's
remarks.
10. On or about January 1, 1978, refusing to allow its
employees to use Respondent's trucks, backhoe, rental
equipment, pipe cutters, and post hole diggers.
Similarly, in connection with Rappa's termination, I have
found that Respondent did in fact refuse to allow its
employees to use Respondent's trucks, backhoes, pipe
cutters, post hole diggers and their rental equipment and
accordingly, I shall recommend that Respondent violated
Section 8(aX)(1) of the Act by such conduct.
II. By Larry Good, on or about June 1, 1978, at its
Sarasota, Florida, facility, telling an employee that Field
Foreman Norman R. Arnold still had a lot of hostility
toward union activity and that Arnold knew the specific
employee who had instigated union activity among Respon-
dent's employees.
In support of that allegation, John Bailey testified as
follows concerning a conversation he had with Good on
June 1, 1978:
Somehow he mentioned unions, and I told him its got
nothing to do with the Union. And he persisted on
talking about unions and he said, 'Were you aware that
Norman Arnold and Gene Williams still carry a lot of
hostilities over the Union, and that it's affected our
jobs?"
Q. What did you say if anything?
A. I'm trying to remember the conversation.
Oh, he also went on to say, he said, "It's no big secret
that Chester Van Horn started the Union and that
Norman Arnold knows it."
JUDGE NORMAN: Did he say the unions were a threat
to their jobs.?
THE WITNESS: And lives.
JUDGE NORMAN: And lives?
THE WITNESS: Yes, sir.
JUDGE NORMAN: Did he explain that?
THE WITNESS: No, sir.
MR. WESTHEIMER: All right. I think that's all I have
of this witness, Your Honor.
Good specifically denied having had such conversation with
Bailey. As previously indicated, I credit Good, not Bailey,
who was incredible. I shall recommend that the allegation be
dismissed.
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. 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. On or about May 11, 1978, employee Giovanni Rappa
was discharged by Respondent because of his union activi-
ties, and thus, Respondent violated Section 8(a)(3) and () of
the Act.
4. Between on or about November 1977 and June 1978,
Respondent interfered with, restrained, and coerced employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act by coercively interrogating employees concerning their
union activities, giving employees the impression that they
were under surveillance with respect to their union activities,
threatening to discharge employees because of their union
activities, and refusing to allow its employees to use
Respondent's trucks, and rental equipment because of their
union activities, all in violation of Section 8(a)(l) of the Act.
5. Respondent has not engaged in any unfair labor
practices not specifically found herein.
6. The unfair labor practices enumerated above, are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(aXi) and (3)
of the Act, it will be recommended that Respondent be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminatorily
discharged Giovanni Rappa, Respondent shall offer him
immediate and full reinstatement to his former or a
substantially equivalent position without prejudice to his
seniority or other rights and privileges, and shall make him
whole for any loss of pay he may have suffered by reason of
the discrimination against him. Any backpay found to be
due shall be computed, with interest, in the manner
prescribed in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).2o
A violation of Section 8(aX3) goes to the very heart of the
Act. It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees in Section 7
of the Act. Pan American Exterminating Co. Inc., 206
NLRB 298, fn. 1 (1973); Entwistle Manufacturing Company,
23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (4th
Cir. 1947).
Upon the basis of the entire record, the findings of fact,
and the Conclusions of Law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
,' See, generally, Isis Plumbing d Heating Company. 138 NLRB 716 (1962).
" 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.
ORDER2'
The Respondent, Florida Cities Water Company, Saraso-
ta, Florida, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities, giving its employees the impression
that the Respondent is engaging in surveillance with respect
to their union activities, threatening to discharge employees
because of their union activities, refusing to allow employees
to use Respondent's trucks and rental equipment because of
their union activities.
(b) Discharging its employees because they engage in
union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist Local Union No. 1240,
Laborers' International Union of North America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Giovanni Rappa immediate and full reinstate-
ment to his former position or, if that position is no longer in
existence, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records, social security payment records, timecards, person-
nel records and reports, and all other documents necessary
and relevant to analyze and compute the amount of backpay
due under this Order.
(c) Post at its Sarasota, Florida, facilities copies of the
attached notice marked "Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 12,
after being duly. signed by the Respondent's authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint
be, and hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
766