Fox & Jacobs, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1975

221 N.L.R.B. 1159 (N.L.R.B. 1975)

FOX & JACOBS, INC.
Fox & Jacobs, Inc. andLocal 714, International Union
of Operating Engineers , AFL-CIO. Case 16-CA-
5825
December 16, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On August 14; 1975, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. ,Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as 'amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Fox & Jacobs,
Inc., Dallas, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that-the attached notice
is substituted for the Administrative Law Judge's
notice.
1 In the last two paragraphs of that section of his Decision entitled
"Analysis and Conclusions," the Administrative Law Judge refers to what
Rangel said to "Davis," what "Davis" said to Ran gel, Rangel's discharge by
"Davis," the alleged altercation with Rangers immediate supervisor
"Kenneth Davis," and the knowledge which "Davis" had of Rangel 's union
activities. The record, as well as the Administrative Law Judge's findings
elsewhere in his Decision, indicate that all of the foregoing references to
"Davis" should have been to Rangel's immediate supervisor, David Dixon
The Administrative Law Judge 's Decision also states that Rangel was given
a warning slip for tardiness dated "July 5, 1974." The date of that warning
slip is July 17, 1974.
2 The Administrative Law Judge found that Supervisors Mallet and
Parks engaged in coercive interrogation and unlawful surveillance,
respectively. We disagree. There is no evidence in the record of interroga-
tion by Mallet With respect to Parks, we find that his entering a particular
house to eat lunch, as was` his custom , while employees there engaged in
union activity, does not amount to unlawful surveillance in the absence of a
request that he leave There is no showing that Parks knew or suspected that
a union discussion was in progress within the house when he entered to eat
his lunch We also disagree with the Administrative Law Judge's finding
that David Dixon engaged in coercive interrogation when he responded to
Rangel's request for a raise by saymg, "Why don't you ask the Union for a
raise?" We also find it unnecessary to consider or decide whether, Dixon's
remark was otherwise coercive , since no exception was taken to the failure
to make such finding.
221 NLRB No. 187
APPENDIX
1159
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
about their own, and other employees' union
membership , activities, and desires.
WE WILL NOT threaten employees or engage in
surveillance of their activities if they join, support,
or express an interest in the Union.
WE WILL NOT discriminatorily reassign employ-
ees to more onerous work for engaging in union
activities.
WE WILL NOT discourage membership in Local
714, International Union of Operating Engineers,
AFL-CIO, or any labor organization , by dis-
charging employees or otherwise discriminating
in any manner in respect to their tenure of
employment or any term or condition of employ-
ment.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
and enjoyment of rights guaranteed to them by
Section 7 of the National Labor Relations Act.
WE WILL offer Shirley Moore and Abram
Rangel immediate and full 'reinstatement to their
former positions or, if such positions no longer
exist , to substantially equivalent ones, without
prejudice to the seniority and other rights and
privileges enjoyed by them, and make them whole
for any loss of pay they may have suffered by
reason of their discharge , with interest at the rate
of 6 percent per annum.
All our employees are free to become, remain, or
refuse to become or remain , members of said Union
or-any other labor organization.
Fox & JACOBS, INC.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
an original and four amended charges filed on October 31
and December 10, 1974, and January 23, and February 12
and 27, 1975, respectively, by International Union of
Operating Engineers, AFL-CIO, Local 714, herein called
the Union, an original and two amended complaints were
issued on December 19, 1974, February 19, 1975, and
March 25, 1975, respectively, against Fox & Jacobs, Inc.,
herein called the Respondent. The complaints alleged that
Respondent coercively interrogated, threatened, and con-
ducted a surveillance of its employees with respect to their
union activities in violation of Section 8(a)(1) of the Act;
and that it discriminatorily discharged one employee and
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimmatorily reassigned and subsequently discriminato-
rily discharged another employee for such union activities,
in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, herein called the Act.
The Respondent filed an answer denying the above-
described allegations set forth in the complaint.
The hearing in the above matter was held before me in
Dallas, Texas, on April 10 and 11, 1975. Briefs have been
received from counsel for the General Counsel and counsel
for the Respondent, respectively, and have been carefully
considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now , and has been at all times material
herein, a corporation organized under and existing by
virtue of the laws of the State of Texas, maintaining an
office and principal place of business in Dallas, Texas,
where it is engaged in the construction of domestic
housing.
The complaint alleges, the answer admits , and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
administrator, under whose supervision and, their lead
persons are approximately ,250 to 270 employees or
workmen.
In mid-October 1974, approximately 140 to 160 houses
were in some stage of construction at the Plano site alone.
In October 1974 Respondent was starting and completing
four houses a day. In order to keep production updated, a
part of Bill Thompson's duties involves -fairly frequent
inspection of each house in order to assure that all work is
properly done. His inspections involve observing the
houses as he drives by and also by his entering and walking
through each home. In October 1974 the Respondent
experienced a greater number of problems (particularly
with plumbing) in the construction of several homes on the
subject site-which necessitated more frequent visits to the
houses in order to assure that such problems were
corrected.
,During approximately July-September 1974, several
employees proceeded to organize Respondent's employees
and so advised the Respondent of such fact on October 15,
1974. Thus, the organizational activity of these employees
on the construction site of the Respondent constitutes the
facts out of which the alleged unfair labor practices arose.
B. Employees' Union Activities and Supervisor
Thompson's Interrogation and Threats With Respect
Thereto
IT. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Local 714,, International Union of Operating Engineers,
AFL-CIO, herein called the Union, is now, and has been
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, Fox & Jacobs, Inc., is, and has been at all
times material herein, engaged in the construction of
residential single-family homes. This means that a large
number of homes are generally under construction at a
given location and time; and that a mass production
technique is employed whereby the construction of the
same number of homes is completed as is started on a
given day. Thus a large number of homes are under
construction in varying stages of completion at several
jobsites. Consequently, work crews specializing in skilled,
semiskilled , and unskilled areas (carpenters, beck and
construction workers, plumbers, finishing carpenters and
painters, touch-up painters, yardmen, and inside and
outside cleanup crews) move from home to home complet-
ing the tasks of their particular specializations on each
home.
Supervising the specific and complete stages of construc-
tion are the following persons: William (Bill) Thompson,
superintendent of construction, is responsible for the
detailed operation and a completed product, under whom
work: Frank,Parks-carpenter foreman; Kenneth Smith-
supervisor of cleanup crew; David Dixon-paint foreman;
Richard Mallet-supervisor; Karen Haviland-personnel
Employee Jack Moore, husband of employee Shirley
Moore, has been a carpenter with the final crew for the
Respondent since February 1974. He works on crew 1
under the supervision of Kenneth Smith. His wife, Shirley
Moore, has been employed by Respondent since May 1974
as a cleanup lady (cleans windows and the interior of
newly constructed single-family homes) until - she was
terminated in February 1975. Employee Kenneth Dixon
was first employed by the Respondent as a touchup painter
in January 1974, and again on July 15, 1974, until he
voluntarily terminated his employment with Respondent in
or about March 1975. All three employees credibly testified
that they signed a union authorization card sometime in
July, August, or September 1974. Shirley Moore signed her
card in the union -building during a meeting at which
Kenneth Dixon, Jack Moore, Jane Edwards, Abe Rangel,
and Lee Bradshaw were present. At that time the
employees discussed unionizing the Respondent's employ-
ees and took authorization cards to solicit other employees
of the Respondent.
A composite of the credible testimony of Shirley Moore,
her husband, Jack Moore, and Kenneth Dixon established
that between 7:15 and 7:20 a.m. on October 15, 1974, they
approached Construction Superintendent (Supervisor)
William (Bill) Thompson and requested to speak with him
privately; that Supervisor Thompson consented and
permitted them to talk, to him in the field office during
which time they informed him that they were organizing a
union; that Kenneth Dixon told Thompson that they had
been to the Union and had been advised about their rights
as well as the rights of the Respondent; and that they
(Dixon, Shirley, and Jack Moore) wanted to advise him
that -there would be union activity on the jobsite. Shirley
and Jack Moore further testified that Supervisor Thomp-
FOX & JACOBS, INC. 1161
son then asked them did they know what they were doing
and they responded, "Yes"; that he then advised them that
they were making a mistake by forming a union and asked
them if they knew that' if the Union was organized the
Union could come in and replace them by other union
employees, but they advised him that the Union could not
do so without a good reason. Thompson asked them why
they were going union, and that if they did the Union
would just ship somebody else in to do their job who had
seniority in the Union; and that Thompson then asked
them did they know exactly what it would cost them and
they replied, "it will cost us nothing"; and then he told
them "From now on you will be watched" and anybody
who goes union will be replaced or terminated. Dixon, who
was present during this meeting and at the hearing,
acquiesced in the testimonial versions of Shirley and Jack
Moore.
Supervisor Thompson admitted the testimonial versions
of Dixon and Jack and Shirley Moore with respect to their
advising him about their efforts to organize the employees,
but he denied that he told them they would be watched or
that they would be fired for engaging in union activity.
Rather , he testified that he explained the way the Union
operated was through a union hall wherein a carpenter
with more seniority -on the job could be brought in and
replace the person with less seniority working on the job.
Finally, he stated he told them that he did not feel that
they needed a union , but if they thought they had to have
one there was nothing he could say. He acknowledged that
they advised him that they were going to solicit the
signatures of other employees because they were organizers
for the Union, but that he did not tell them that if any of
them were caught with union cards they would be fired but
to confine their union activities to nonworking periods. He
also acknowledged that he had observed Kenneth Dixon
wearing a union insignia on his cap.'
C. Surveillance, Work Reassignment, and
Interrogation of Employees About ' Their Union
Activities
Shirley Moore further testified that after the brief
meeting Jack, Moore,. Kenneth Dixon, and she held with
Superintendent Bill Thompson on October 15, 1974, they
immediately went to their worksites and resumed their
respective duties thereto; that shortly after 8 a.m. she
observed Manager Bill Thompson sitting in his black
pickup truck in front of the house that she was cleaning;
that she later saw him and bumped into him at the catering
truck around 10 a.m., and thereafter observed him on
lunch and breaktimes when she was distributing union
cards to some of the girls; and that she actually observed
him off and on throughout that day. On the following days,
October 16, 17, and 18, she said she frequently observed
him in the work vicinity, either driving his pickup truck or
i I credit the testimonial versions of Dixon and Shirley and Jack Moore
because not only did the straightforward manner in which they testified
indicate they were truthful but also because their versions were not
inconsistent in substance nor with the logical consistency of all the evidence
of record I do not credit Supervisor Thompson's uncorroborated testimoni-
al version because I received the distinct impression from the very careful
manner in which he testified that he was not exactly truthful and was trying
to explain his past conversation with these employees in a manner that it
going in and out of the house, next door or within the
immediate work vicinity. Although she had worked for
Respondent only 5 or 6 months before October 15, 1974,
Shirley Moore said she had never 'seen Supervisor
Thompson walking into the houses and parked along the
street of their worksite with the degree of frequency with
which she observed him on the day immediately following
their meeting of October 15, 1974. Her testimony in this
regard is corroborated by her husband, employee, Jack
Moore, who was working a few houses down the street
from Shirley Moore's worksite.
Jack Moore stated that during the lunch period on
October 15, 1974, he, Kenneth Dixon, and Shirley" Moore
sat down and talked about how Bill Thompson was doing
exactly what he had told them, driving up and down the
street and parking in front of the homes in which they were
working, and that Thompson continued- to watch them
throughout the week.
Superintendent and Construction Manager Bill Thomp-
son denied that he sat in his truck across the street from
where Shirley Moore was working and watched her, on
October 15, or on any other day; that if he in fact were in
his truck on that day he did not know that Shirley Moore
was in that house. He acknowledged on cross-examination
that he had a pretty good idea where Shirley Moore and all
the cleanup crews were working; and that he did not recall
bumping into her at the catering truck where 30 or 40
workers are usually congregated-2
Work Reassignment
On October 17, 1974, Supervisor Kenneth Smith called a
meeting of Shirley Moore's crew and advised, them of
certain changes in the composition of the cleaning crews.
At that time, she was transferred from Supervisor David
Dixon's crew to that of Supervisor Kenneth Smith. Under
Smith's supervision, she was thereupon assigned to clean
floors for carpet installation, which involved scraping up
mud work, cement, or mastic putty from the floors. When
she arrived at this assignment she said the yardman who
usually performed this task was surprised and showed her
how to do it, but Supervisor Smith came in and reassigned
the yardman from the-scraping of floors to cleaning the
garages. She said Smith then'said: "I want you to clean the
bath tub, the showers, everything out," and that she said,
"Smitty, I've got to move everything out of these houses,"
and he said, "Yes," and I said, "Okay." Supervisor Smith
left but returned shortly thereafter with a mask (a
respirator type-a' surgical mask) for her to wear over her
face during the cleaning.
Shirley Moore repeatedly testified that the duties she was
instructed by Smith to perform 'were performed by
yardmen and that she had not seen any female employees
of her cleanup crew perform such duties before. Neverthe-
less she performed the assigned duties until about 10:30
would not have been against the interest of the Respondent and violative of
the Act
2 1 credit the corroborated testimony of Shirley Moore with respect to
the unusual frequency with which Thompson was observed in her
immediate worksite because it is consistent with the credited testimony that
he told her they would be watched, and with his well-established interest in
the employees interest in organizing Respondent's employees.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m. when she tried to move a panel of`sheetrock which
knocked her, down causing her to sustain a back injury for
which she was taken to the hospital in an ambulance, She
was thereafter treated and continued under the care'of Dr.
Larkin, who was not ` an orthopedic specialist. She also
submitted to examination by Dr. Sarris , an orthopedic
specialist, for Respondent's employee insurance company
on February 10, 1975. She talked to Dr. Sarris on February
11, 1975, during which time he advised her that he had
found no abnormality. There was conflict between the two
examining physicians with respect to the existence and the
severity of an injury. Consequently, Dr. Larkin prescribed
medication for pain and nerves , muscle relaxatants, and
therapy: , He also -advised that Shirley Moore could not
returnrto work at that time. A week later, upon Shirley
Moore's request , Dr. Larkin released her for restricted
work on February 18, 1975.
On February, 18, 1975, Shirley Moore reported to the
office of Respori,dent and the new supervisor.of crew 1, Mr.
Mallet , and Kenneth Smith , who read Dr .. Larkin's release
letter . They advised her that Respondent had no nonstren-
uous work that she could do but that she could return after
she was approved for work by the Company's, insurance
physician. On the, next, day, February 19, 1975, Shirley
Moore received a letter dated February 18, 1975 (G.C.
Exh. 3) from the , _ Respondent , advising that she was
terminated . At the hearing she testified that she was still
under the care of Dr . Larkin as well as Drs. Baker and
Shull, orthopedic specialists , none of whom had released
her unconditionally for return to work. Jack said he had
never ' observed women cleaning the floors for carpet
installation ; that such cleaning was done by yardmen, and
that - a , blonde-headed yardman was doing the floor
cleaning -on 1 the morning of October 21, 1974, before
Shirley Moore was assigned and injured.
Betty Smith testified that she has been employed by the
Respondent since February 2, 1974 , to the present time as
a cleaning ' lady;' and that she as well as other cleaning
ladies have cleaned floors in preparation for the installa-
tion of carpet, which is part of their job. She further stated
that they had to scrape^floors ,with a scraper on occasion.
She described the piece of sheetrock Shirley Moore was
attempting to move on October 21 as being 3 by 4 feet in
size.3
Kenneth Dixon testified as follows:
A. On or about October-the middle of October,
1974 I went into a , house and there was some front end
carpenters in there and it was at lunchtime . I went into
the house where they were working and was'discussing
Union cards with them..1 had four people that was-
that had took cards from me and were going to,sign
them . Mr. Parks come in the house and sat down and
was eating his lunch . When he did , three of the guys
give me-two of the guys give me their cards back and
one kept his and the other one signed it and give it
back.
Parks could hear what Dixon said to the employees, and
the Respondent' stipulated that Parks did hear what Dixon
and the employees discussed . The employee who signed a
card and gave it to Dixon in the presence of Parks is no
longer employed by Respondent . The other employees
stopped talking when Parks came in, except one employee
who said,he would keep his card and return it to Dixon at a
later time.
Jane Edwards, employed by the Respondent off and on
for 5 years , having last been employed on September 10,
1973, as a putty girl, 'testified that she signed an
authorization card around August or September 1974; that
in or about the middle of October 1974, her final foreman,
Kenneth Smith , after the lunch period and before break
'time, came to the location where she and coworker, Sonja
were and a conversation ensued as follows:
A. He come in the house and he asked us if the
man was coming back today 'and I asked him what
man, and he said , "The union man." Then , he asked,
Did we know anything about the union," and I told
him, "yes, I knew about the union, my husband was a
union man ," and he said that if we signed a card, it was
like signing our paychecks over to them and the only
reason that they were out there was because they didn't
have anything else to do and that we would be buying
him a new Cadillac.
Karen Haviland, personnel administrator for Respon-
dent, essentially corroborated the testimony 'of Shirley
Moore, with respect to her physical examination and the
reports thereof. She further testified that Linda Baker,' crew
expediter on crew 1 talked with her after she had received
word, from the insurance company's physician, Dr. Sarris,
that Shirley Moore was released to return to work. At a
later time, she received an inquiry from Linda Baker as to
whether Shirley Moore could be terminated and she
advised Baker that she would get back in touch with her,
that she (Haviland) would check on it. By checking on it
she meant that she inquired of the insurance company as to
whether Shirley Moore ' had been advised that she was
released to return to work and was assured by Mr. Lusious
(the insurance representative) who had talked with Mr.
Wright, Shirley's attorney, that Shirley, had been so
advised. Thereupon,. she advised Linda Baker on the next
day that she could proceed with the termination papers on
Shirley Moore since Shirley had not returned to work, and
that she (Haviland) would write a letter confirming the
termination . Karen Haviland denied that she talked with
Supervisors Bill Thompson or Kenneth Smith and stated
that she did not tell Kenneth Smith to try to contact
Shirley Moore to ascertain whether or not she was going to
return to work. Linda Barker, field expeditor confirmed
and corroborated the undisputed testimony of Karen
Haviland, ' and she said that Kenneth Smith said that he
would check and see if Shirley Moore returned to work.
Barbara Phenis, secretary, in personnel for the Respondent,
3 1 credit the corroborated testimony of Shirley Moore to the effect that did not convey to me an impression that she was testifying truthfully In any
floor cleaning for carpet installation ' is performed by yardmen with event, Smith's testimony does not establish that cleaning ladies scraped
exception of one ladyzcrew chief who apparently was designated with her floors for carpeting as a general rule and the evidence is undisputed that
acceptance of,such assignment . I do not credit Betty Smith 's version with Shirley Moore had never been assigned such duty until October 21, 1974, by
respect to this floor cleaning duty because the manner in which she testified supervisor Smith who was opposed to unionization
FOX & JACOBS, INC.
corroborated the testimony of Karen Haviland and that
she (Phenis) typed the letter dictated by Haviland to
Shirley Moore as directed.
Additional Interrogation of Employees by
Thompson and Parks
Jack Moore further testified that about 15 or 20 minutes
before closing time in the afternoon on the same day that
his wife got hurt. Bill Thompson called him and told him
he wanted to talk with him and Kenneth Dixon; that
Thompson then asked them were they sure what they were
doing and they said "Yes, we do." Thompson then asked
them where was J. Z. Woodridge, the union representative
who had been on the job off and on during that day. After
Kenneth Dixon responded to that question the conversa-
tion became a little heated and as Kenneth Dixon walked
away, Bill Thompson said "I guess you know, if we ever
catch you all with one of those union cards, we're going to
fire you, you know." Shortly thereafter Woodridge ap-
peared and Kenneth hollered to Thompson, there he is
right there. Woodridge and Bill Thompson then had a little
conference. Bill Thompson had also told himself and
Kenneth that if they signed a anion card all they were
doing was buying that Black man out there anew Cadillac;
and he proceeded to tell them how the Union wasn't going
to do them any good; and that if they signed the union
card it was just like signing a blank check.
Thereafter the witness (Jack Moore) overheard Kenneth
Smith telling the outside painter Louis that he did not want
him (Louis) to sign any union card; that if he signed a
union card he was simply buying that Black man out there
a new Cadillac, He then proceeded to tell Louis that if he
signed a union card it was just, like signing a blank check.
This was between 2:30 and 3;30 p.m.
Jack Moore testified that in late October 1974, Frank
Parks, believed to be a foreman or assistant supervisor of
the trim crew came to him at his job station and said,
"Jack, tell me something about the Union, I don't know
anything about it" and he told Parks he could not tell him
anything about it during working periods but would be
happy to talk about it during lunch time or after work.
Parks did tell them he (Moore) would not be fired. Moore
denied that Thompson told them on October 15 that there
would be no hard feelings.about the Union.
Jack Moore also testified that in the third conversation
he had with Bill Thompson about the Union, Thompson
told. them that they had a right to have a union and to
think very carefully about it and read very carefully what
the Union gives them. He denied that Thompson men-
tioned. anything about if there was a work stoppage, but
rather, if the employees went union that they could
definitely be replaced by the Company or the Union. He
said at one time they (Thompson) would say we could be
replaced by the Union and, at another time that we would
be replaced by the Company. (This is re: the meeting
Respondent had with employees.)
He said that if we went union that we could be replaced,
To get what we wanted we would have to go on strike and
4 I do not credit the testimonial version of, Jack Moore over that of
Supervisor Thompson not only because I was persuaded that he was not
telling the truth and Thompson was, but also because his version is
1163
then, they could just get people to replace us and I told
him, not necessarily because the biggest majority of the
people have respect for union people and theywon't cross
over the picket line.
Supervisor Thompson continued to testify as follows:
A. The only-after we found out our rights and so
forth, the only conversation we had with the semploy-
ees-we had meetings with the departments and what
we did is-after we had consulted our lawyers and so
forth as, to what we should do and shouldn't do, we
decided to have a meeting with the employees and the
meetings went-we called them together and told them,
"OK, we know that there is union activities on the job.
We've got a letter in our office notifying us that there
will be union activity,"•and that we wanted to,tell them
our side of the story and what we thought and we
proceeded to do this, We told them that we could not,
in no way, not to sign that card, that it was against the
law for us to tell them not to do it and that we would do
this, as a friend, as trying to help somebody, to read
that card before you sign it. You know, just like a
contract or anything else you sign, you know, if you-I
phrased it that if you go down to the store and buy a
colored television, you don't sign a blank contract, you
find out how much it is-going to cost you, what it going
to-how long the guarantee is, what it is going to do for
you before you sign up to buy it and I just-I think you
should do the same thing with this card, check into it
and see what it is.
I had heard people that had come to me and told me
that they were walking up and down` the streets with
cards and promising them a two dollar raise if they
would sign the card and I told them, you-know, I said,
"If that's what they are saying, then tell them to put it
in writing before you sign the card." Do yourself a
favor and don't sign it unless you've got it in writing
that he's going to give you a two dollar an hour raise.
Mr. Thompson also denied that,he questioned Kenneth
Dixon, Jack Moore, Shirley Moore, -or any other employ-
ees about their union activity because they told him what
they were doing, and he simply advised them- to confine
their union activities to nonworking periods. He admitted
that he did ask Jack Moore, on or about October 21,
whether the union representative would be in the area of
the worksite, because he wanted to talk with him after he
had learned Respondent's rights and the rights of the
employees. He has worked for the Respondent since about
1962, nearly all of his adult career, and believes Respon-
dent is a^ good employer. He does not know of any prior
effort of the Respondent's employees to organize a union .4
D. Respondent's Discharge of Abe Rangel
Abram B. Rangel, Jr., a Mexican-American who speaks
Spanish was employed by the Respondent from the last
part of May 1974 as an outside painter and trimmer until
January 22, 1975, when he was discharged. He testified
compatible with the logical legal advice Respondent had probably been
given by that date.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he signed a union authorization card around.Septem-
ber 1974 and that he solicited other employees, mostly
Mexican-Americans, to, sign cards; that in or about} the
middle of October 1974, while he and employee Jane
Edwards were working in ' the same house, Foreman
Kenneth Smith came in and asked them did they know
anything about this union bit, and he (Rangel) said "No";
that Smith then said "Well, you know, if you were to sign
one of those cards that it would be like signing-over your
paycheck to `them and the only reason I'm here is because
they've got a lot' of union workers just sitting on the bench
and another thing, you `would be buying him a 'Cadillac,
you would be paying for his'Cadillac."
Supervisor Kenneth Smith denied that he'asked Rangel
about his union activities or that he ever told him if `the
Union came in (Rangel) would be replaced. However, he
acknowledged that Rangel was present when he held a
conversation with employee Jane Edwards, during which
he asked her if she knew about the Union and she saidyes
she did; that he asked her did she know that the Company
had the right, if the Union was brought iii. and a strike was
in progress, that 'the'Company had a right to bring in other
employees to get the job done, and she said, she did not
know that; and that he did' not tell Edwards that if she
talked to-him about the Union the Company would not
take any action or reprisal against her but he denied that
he told her if she or any employee" signed a union card they
would be-fired.
Employee Rangel further testified that around Novem-
ber 1974 Supervisor Kenneth Smith entered a'house in
which he was working and greeted him and proceeded to
talk about the Union by saying, if'he (Rangel) were to' sign
a union card, or the job was to go union, Respondent could
replace him with someone else.5
.Rangel further testified that -David Dixon was his
immediate supervisor and after he (Rangel), became
engaged in union activity, sometime ,after Christmas, he
asked Dixon for a raise and Dixon said: "Why don't you
ask the Union for a raise?"; that in or,about the,first week
in January, 1975, while "twalking houses" with Supervisor
David Dixon, Dixon said to, him: "If you don't stop doing
some of that lunch activity, we are going to get rid of you' ;
that the only activity in which he (Rangel) was engaging
during the lunch-period was union activity., However, he
admitted that he, had not seen Dixon watching him during
lunch periods.
On or about January 21, 1975, while painting the outside
of a house with the use of a ladder to get the high spots,
Dixon came and took his ladder and told him he would
return it later. The ladder was returned that, afternoon but
since he.(Rangel) had only completed one house, Dixon
got angry and asked him what had he been doing, was he
goofing around all A ay, and,he replied you took my ladder.
An argument ensued in which Dixon said "You all dumb
Mexicans are all.ahke, all you want to, do is just loaf
around' and not do, a god damn thing." Rangel said he tried
to explain to Dixon that he had painted the lower spots but
could not get the higher spots without a ladder. On the
s I credit the testimony of Rangel over that of supervisor Kenneth Smith
because I was persuaded by their demeanor that Rangel was telling the
truth and because his version is corroborated by employee Jane Edwards
following,day, January 22, 1975, Rangel said'he was using
the ladder and Dixon asked could,^he borrow the ladder
and he said "No," because he was using it. David.` Dixon
left but returned cursing and told him: "Next time, you
dumb son-of-a-bitch, when I tell you 'to give the ladder to
somebody that you give the ladder." .. "Do what I tell
you to do." He then asked Rangel why didn't he go home
and Rangel said if he were to leave then, he would not
receive pay for" his gas or lunch, but if he (Dixon) wanted
to, he could make him go home; that Kenneth Dixon then
said, "any ways, I'm tired of your shit and your lunch,"
activities, you're fired." Rangel said' the only 'lunch
activities he had was his talking to-,the Mexican-American
people during his lunch period about the Union. David
Dixon 'denied that he, I took the ladder from Rangel on
January 21, 1975, and gave it to his brother, but he said on
January 23, ' 6 ' ne of his 'own painters came to him 'and told
him he needed a ladder to paint the beams' inside the
house, so he told him to `borrow, the ladder Rangel was
using. A few'niinutes later the painter returned and advised
him that he could not get the ladder from Rangel and'
Dixon then went to Rangel; that ' he noticed that' Rangel
was not on the ladder and'he took `it and gave it to Dixon '
and told Rangel to do the lower' work; that Rangel argued
that he could not do the lower work,', that he needed a
ladder and told him that he was tired of this -, "four letter
word -; that he told Dave to hush and just go ahead and
do the lower work on the house but Dave, "don't tell me to
hush, you god damn bastard." David Dixon continued to
testify as follows:
A. I told him then, I said, "Abe, it seems like you're
mad about something;'why-don't you go ahead and g'o
home for the rest of the day and come back' tomorrow,"
and then again, he used this four letter word that began
with an F-you and "I'm not going to do it."
I then said, "Abe, don't cuss me," and he also used
the four letter word again. I said, "Abe, either you go
ahead' and do your low, work and go''ahead back to
work and be quiet or Tin going to have to let you go,"
and he said,' "I don't' give a-," four letter word
beginning with F, "fire me." '
I said, "OK, you're fired." '
At that time, Rangel threw his 'brush down, said he
wanted his check and he advised him that he could not
receive his check until Friday-
Rangel admitted an cross-examination that David Dixon,
had on occasion talked to him about being late about 4 or
5 times; that he was absent about 4 or 5 times and on one
of such occasions his wife', had called Respondent and
advised that he would be out sick for 3 days _on 'doctor's
orders. He admitted he received one warning about
lateness (Resp. Exh. 5) dated July 5, 1974, which read:
"This man comes in everyday about 5 to 10 minute's late";
that he then asked Dixon what was the notice 'about
because he did not read it. He said Dixon then said it was
cause you were late and 'if we get a couple more, we're
going,to have to terminate you, and he showed the warning
Moreover,' supervisor Smith's version is against the logical consistency of
the evidence of record.
FOX & JACOBS, INC.
to him and said just sign there; and that he (Rangel) signed
and returned to work. Rangel denied that David Dixon
ever talked to him about his work being unsatisfactory and
he did not remember Dixon telling him in response to his
request for a raise that, if his work improved and he came
to work on time, he (Dixon) would recommend him for a
raise, but he admitted that it is possible that Dixon did say
that. He also stated Dixon never did talk to him about
union activity in the presence of anyone else.
On cross-examination, when Rangel was asked if he used
any four-letter words to Foreman Dixon, he testified as
follows:
Q. It is possible that he said that to you?
A. No, it isn't possible, because I don't remember
him saying something like that to me.
Q. Do you recall replying to him, I don't give a
with that four letter word starting with F, go ahead and
fire me?
A. No.
Q. It is possible that you said that?
A. I didn't say something like that.
Q. Your testimony is that you did not say that?
A. I remember telling him after he told me I was
fired, I told him where to go.
Q. I ask you to refresh your memory and tell us if
you didn't tell him that before you were fired?
A. Not that I remember.
Q. But you don't deny that you did?
A. I might have, I don't remember.
Q. I ask you if you remember then, throwing down
your brush and walking off after you had had your
little-
A. Well, he told me I was fired, what am I suppose
to do, clean the stuff for him? I mean, he threw the
caulking gun and my putty knives on the floor. What
am I suppose to do, clean them off and say, "here, here
they are, clean." I wasn't getting paid from from there
on after I was fired, what should I say that for.
Q. Isn't it a fact, Mr. Rangel, that on that day that
he told you that they needed the ladder elsewhere to
paint high and that you cussed him and he told you to
either paint the shutters or to go home, that you looked
mad and either paint the shutters or go home and come
back tomorrow?
A. I don't remember him painting the shutters-I
mean, telling me to paint the shutters. He just told me
to paint the lower part.
Q. Did you not, at that time, say, starting with the
four letter word-starting with F-you, I'm not going
to do it?
A. 'No, not that I remember. I never did tell him
that that I couldn't do it.
Q. I'ui not saying that you couldn't do it, but that
you said I am not going to do it.
A. Not that I remember.
Q. Is it possible that you told him that?
A. I' might have.
6 1 do not, credit supervisor Dixon's testimony over that of Rangel in this
regard because he did not appear to be telling the truth and his version is
1165
Q. As a matter of fact, you did tell him that, did
you not?
A. Like I said, I might have. I don't remember
whether I did or not.
Q. And didn't he tell you that if you refused to do
the work that I am going to have to let you go; do you
remember that?
A. No.
David Dixon, final supervisor of the interior and exterior
touch-up paint crew, over Shirley Moore and Kenneth
Dixon, testified that as the supervisor of employee Rangel,
he has had problems with Rangel since a month after
Rangel was first hired with respect to late attendance, for
which he warned him on several occasions. He further
stated, that during one period Rangel would not come into
work and would advise him that he was either sick or had
overslept. On Rangel's work performance, David Dixon
stated that Kenneth Smith had told him Rangel dropped
paint on the floor and paneling in the den area of the house
and that he (Dixon) went in and warned Rangel and asked
him to be more careful. Rangel said that he would be more
careful. The explanation for the paint being on the floor
was due to Rangel having been aggravated with another
worker who threw a pail of paint in his hair and he in turn
threw his paint brush at him. In this regard, however,
David Dixon admitted on cross-examination that Rangel
was not the first employee painter who had splattered paint
on the floor or to horse around a bit on the job, although
he explained that he had not experienced an occasion when
that much paint (a half pint) was spilled. But others
including himself had spilled up to a quart or a pint of
paint on floors.
In about August or September 1974, Rangel had asked
him for a raise and he (Dixon) told Rangel that if he could
demonstrate that he could come to work on time, he could
have a raise. Dixon denied he ever told Rangel that if he
wanted a raise he could go talk to the Union about it. He
acknowledged that there was open union activity at the
jobsite on October 15, 1974, and that other supervisors
advised him of their knowledge of such activity.6
David Dixon further testified' that he had in- his
possession records of time and attendance for employee
Abe Rangel dating back from ` September 1974. That
records of his time and attendance prior to that date was
missing from a drawer where he kept them. Records
presently in his possession show that Rangel was late on
September 17, October 18 and October 21, November 18
and ^ 19, December 2, 9, and December 19, 1974, and
January 22, 1975, which was the date on which he
terminated Rangel. With respect to absences, his record
shows that Rangel was absent on September 9,120, 24, 28,
and September 30, and November 5, 6, 8, 9, 12, 13, and 23,
1974, and the first of six of 1975.
David Dixon had introduced into evidence Respondent's
Exhibit 5, dated' July 17, 1974_, which is a warning notice
which says: "This man comes in late every day about 5 to
15 minutes." Dixon further testified that he gave this notice
to Rangel and explained that it was a disciplinary' action
inconsistent with his own knowledge and conduct with respect to the union
activity of the employees.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report where there is normally a warning 1, 2, 3, and 5.
Subsequent to this notice there was a time when he started
to terminate Rangel on November 12, 1974, for having
missed a total of 1 week when he had no way of contacting
him to find out why he was absent. He had decided to
terminate him for absenteeism and had filled out the
termination form and presented it to Bill Thompson but
they decided to hold off until they received a reply from
their notice to the main office; and that they were finally
advised to suspend terminating Rangel on account of 'the
union -activity. Thereafter, he gave Rangel another written
warning, Respondent's Exhibit 6 dated November 12,
1974, which he completed on November 12 and was going'
to have Rangel sign when he reported to work but Rangel
did not report for work on' November 12. When Rangel
reported to work on November 14 he presented him with
the warning and he updated his notice by inserting
November 15, 1974. The notice indicates Rangel was
absent` November 6, 8, 9, and 12, 1974. Dixon testified that
Rangel was also absent on November 13, 1974.
Analysis and Conclusions
A determination of the validity of the allegations with
which the Respondent is charged and the corresponding
defenses asserted by it in response thereto, depends largely
upon a determination of the veracity of the several
witnesses, whose testimony is highly conflicting. While it is
difficult in some instances to resolve such vexing questions
of fact to which only the parties alone bear witness, I am
compelled to consider the relationship of each witness to
the party on whose behalf he testified, the readily
responsive , nonselective, nonexaggerating, consistent, and
straightforward manner in which he testified, as well as the
reasonableness of efforts made by the parties to bring
essential witnesses and appropriate documentary evidence ,
before the court; and finally, how such testimony or other
evidence relates to the logical consistency of all the
evidence of record and the sequence of events as they
transpired.
The evidence of record is uncontroverted that the
Respondent, through its Chief Supervisor William (Bill)
Thompson, received knowledge on October 15, 1974, that
its employees were engaged in union activity. The evidence
is also clear that during the meeting in which Thompson
was advised by the employees of their union activity, he
proceeded to, ask them such questions as why they were
going union,' did they know exactly what it would cost
them, and then went on to state that if they unionized the
Union, would, just replace them with other employees with
greater seniority; and that he thought they were making a
big mistake by going union. While the aforedescribed
questions and statements may not ipso facto constitute
coercive interrogation in violation of Section 8(a)(1) of the
Act, when they are read in conjunction with the remainder
of supervisor Thompson's statements during that meeting,
they take on a coercive and restraining character . In this
regard , the credible evidence of record shows, and I so
find, that Supervisor Thompson then told the employees
(Kenneth Dixon, Shirley and Jack Moore) that from then
on they would be watched, and that if they were caught
with union cards they would be fired on the spot. The latter
statements can hardly be construed as carrying any import
other than that of a threat to put the employees under
surveillance of the Respondent, and to discharge them for
engaging in employee rights protected by Section 7 of the
Act.
Although Supervisor Thompson testified that his threat
to discipline the employees for engaging in union activity
was confined to working periods, I do not credit his
testimony as having been made with such specificity.
Consequently, when Supervisor Thompson's earlier ques-
tions of the employees about their union activity are
considered in conjunction with his statements and admoni-
tion that they would be watched, and discharged if caught
with union cards, the evidence is more than sufficient to
demonstrate that Thompson 's interrogation was coercive
and restraining, and violative of Section 8(a)(1) of the Act,
in accordance with Hennepin Broadcasting Associates, Inc.,
215 NLRB No. 32 (1974), and Sylacauga Garment
Company, 210 NLRB 501 (1974), cited by counsel for the
General Counsel.
The foregoing credible evidence described under topic C,
supra, clearly shows that the frequency of Supervisor
Thompson's presence in the work vicinity of Shirley Moore
and her crew was substantially increased following her
meeting with him on October 15, 1974. While such a
concentrated frequency of Thompson's presence near the
worksite of Shirley Moore might appear- to have been
purely legitimate or coincidental , when it is considered that
he was just recently apprised of her and other employees'
union activity, to which he replied that you will be
watched, it becomes difficult if not impossible to conceive
of his conduct as legitimate or coincidental. This is
especially true when it is noted that Thompson had other
subordinate supervisors who could have been .acting in that
vicinity in his behalf as is often done.
Moreover, when Thompson's well-established keen
curiosity in the union interests and activities of Respon-
dent employees are considered along with the increased
frequency of his presence near the worksite of one of the
principle employees (Shirley Moore) who advised him of
such activity, the conclusion is inevitable, and I so find,
that Supervisor Thompson was carrying out his admoni-
tion that Shirley Moore would be watched . Such surveil-
lance by Thompson was conducted in an effort to detect
union activity on her part and was therefore an interfer-
ence with , restraint upon, and coercion against employee
Shirley Moore in the exercise of rights protected by Section
7 of the Act. Although Supervisor Thompson in his
testimony made an effort to justify the frequency of his
presence near the worksite of Shirley Moore, I do not
credit his testimony in this regard because it is inconsistent
with his questions and statements during the meeting on
October 15, 1974; because the frequency, of his presence
increased immediately following that meeting on October
15, 1974 ; and because Supervisor Thompson in his own
testimony expressly or impliedly admitted that he did not
learn the rights of employees and the rights of Respondent
until contact had been made with Respondent or its lawyer
several days thereafter. In all probability, if Thompson had
known that such conduct were violative of the employees
protected rights, he might not ' have resorted to such
FOX & JACOBS, INC. 1167
conduct. See J.C. Penney Co., Inc., 209 NLRB 313 (1974).
Although Kenneth Dixon did not clearly corroborate the
testimony of Shirley and Jack Moore about Thompson's
remarks during the October 15 meeting , I particularly note
that he did not contradict it either , which appears
understandable , since he is the brother of David Dixon, the
brother of Shirley Moore, brother-in-law of Jack Moore,
and is still employed by Respondent.
In view of the well-established surveillance of Shirley
Moore by Supervisor Thompson - on October 15, 1974, and
thereafter , it is reasonably inferred that the undisputed
evidence that Frank Parks ' entry into the same house and
room during a lunch period with the employees and
observed and overheard Kenneth Dixon conducting a
union solicitation campaign , was but an extension of the
surveillance by supervisory personnel (Thompson and
Parks). This conclusion and finding is compelling when it
is observed that Parks' conduct was consonant with the
Respondent's curiosity in the activity of its employees as
expressed by Thompson , and by the fact that Parks made
no effort to absent himself from the room when he learned
that the employees were engaged in union activity.
On October 17, 1974, only 2 days after the employees'
meeting with supervisor Thompson on October 15, 1974,
supervisor Kenneth Smith called a meeting of Shirley
Moore's crew during which time he transferred her from
the supervision of David Dixon to that of himself (Kenneth
Smith). Shortly thereafter (October 21, 1974), Kenneth
Smith assigned Shirley Moore to clean floors for carpet
installation, which function involves scraping up mud
work, cement or mastic puddy from floors. The evidence
shows that this was the first time Shirley-Moore had ever
been assigned to such task and that the evidence failed to
show that any of the other female members on-her cleaning
crew were ever assigned to such task , but rather , that such
task was usually performed by yardmen . Although the
evidence shows that Respondent had one lady who was
head of a crew who 'cleaned for carpet installation, it does
show that she was not initially or subsequently employed
in such capacity with her consent. In the absence of more
explicit evidence as to how thatparticular lady received the
assignment of cleaning floors, it may be reasonably
inferred from the evidence of record that she either initially
or subsequently accepted such assignment. Since top
supervisor of Respondent , Thompson, had knowledge of
Shirley Moore 's union activity , Respondent had knowledge
of her union activity and therefore, Kenneth Smith, an
acknowledged supervisor whose own union animus is
established on the record, infra, had knowledge of her
activity . Thus; it is obvious that Smith 's precipitous
reassignment of Moore to a more onerous job task was
obviously a discriminatory reprisal against her for- her
union activity in violation of the Act. See U.S. 'Plastics
Corporation, 213 NLRB 323 (1974); Florida Drum Compa-
ny, 213 NLRB 604 (1974), and Felsa Knitting Mills, Inc.,
208 NLRB 504 (1974), cited by counsel for the General
Counsel.
On the same day, October 21 , 1974, that Shirley Moore
assumed her reassignment work of cleaning and' scraping
floors for carpeting, she sustained a back injury for which
her private physician prescribed medication -and therapy
and restricted her work' activity. Although she was
examined by a company insurance physician who reported
he found no abnormality , Shirley Moore remained on
medication, therapy and is under the care of private
physicians . By her request , one of her private physicians
released her against his better judgment to perform limited
or light work on February 18, 1975. Thereupon Shirley
Moore reported to work on February 18, 1975, during
which time supervisors Mallet and Kenneth Smith ' read the
medical release of her physician , and advised her that
Respondent had no nonstrenuous work that she could
perform and instructed her to return after she was
approved for full -time work by the Company 's insurance
physician. On the following day, February 19, 1975, Shirley
Moore was notified by letter from the Respondent dated
February 18, 1975, that she was terminated from its
employment.
Although there is some conflict in the medical reports of
Shirley Moore's private physician and, the physician of
Respondent 's insurance company with respect to the
existence or seventy of an injury , the Respondent elected
to, ignore the complaints of Shirley Moore and the opinion
of her private physician and precipitously terminated her
employment on, the very day that she reported for light
work . As counsel for the General Counsel points out, while
Dr. Sarris for the Company's insurance company, indicated
that he found no abnormality, he did state under his
impression that Shirley Moore suffered from subjective
discomfort of lumbosacral pain and pain in the posterior
iliac crest . He further stated as follows: "In my opinion I
feel that this lady can return back to her regular work."
It is obvious that Respondent ignored Dr. Sarris'
impression that Shirley Moore had subjective discomfort of
lumbosacral pain , totally ignored the report of her private
physician , Dr. Larkin, as well as her symptomatic
complaints described as subjective pain by Dr. Sarris.
Under these circumstances it is reasonably inferred that
the - Respondent in discharging 'Shirley Moore upon
conflicting and inconclusive medical reports that she was
capable of performing full-time and strenuous work,
without offering to ' allow her to perform her-lighter and
prior work - activities , it `was further carrying out its
discrimination against her by discharging her for her union
activities , in violation of Section 8(a)(1) and (3) of the Act.
The only work for ' which she was considered to'perform
was apparently the more strenuous work to which she had
been discriminatorily assigned on October 21, 1974. Nor
did Respondent contact her or try to inquire about her
intent and capacity to return to work before it precipi-
tously terminated her employment . Hence Respondent's
contention that she was discharged because she refused or
failed to return to work which she was capable of
performing at the time was pretextual. I
It is further established by the evidence of record that the
conversation Supervisor Thompson held with employee
Jack Moore and Kenneth Dixon as to whether they were
sure about what they were doing about organizing the
Union, his inquiry as to where was the Union representa-
tive, followed by his wanting that : "I guess you know, if we
ever catch you all with one of those cards, we're going to
fire you, you know," clearly constituted threatening and
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercive interrogation by supervisor Thompson in viola-
tion of Section 8(a)(-1) of the Act.
With respect to the conversation Supervisor Thompson
held with its employees during which time he told them
they had a right to have a union; that they should secure as
much .information about the Union as they can because it
could be like signing a blank check, I credit the testimonial
version of Supervisor Thompson over that of employee
Jack Moore because I believe -whatever discrepancy exists
between their respective versions, is due to a misunder-
standing rather than any intentional falsification. In this
regard, I do not find Thompson's remarks to the employees
in any way violative of the Act.
It, is well established by the evidence under topic D,
supra, that David Dixon is a, supervisor as are Bill
Thompson, Kenneth Smith, Frank Parks, and Richard
Mallet; that all of the aforedescribed supervisory personnel
had knowledge of the employees union activity on and
subsequent, to October 15,,.1974; that specifically, when
Rangel asked David Dixon for a raise around December
1974, Dixon referred him to talk to the Union about it.
With reference to Rangel's attendance and timeliness in
reporting, to work, it is particularly noted that the
Respondent did not have available records for time and
attendance of employee Rangel prior to September 1974,
and that the records which itdid have showed that Rangel
was absent on September 9, 20, 24, 28, and 30, 1974, and
late on September 17, 1974. The record does not show that
Rangel , was late on another occasion until I month later,
on October 18, 1974. The record does not show the reason
for his absence during September 9 through 30,- 1974.
However, the Respondent's records are well. documented
with respect to time and attendance on and subsequent to
October 17, 1974. With Respondent not having presented
records for time and attendance prior to September, 1974, it
would appear that a diligent effort was made to document
the time and attendance records of Rangel and possibly
other employees subsequent to his or their union activity.
Respondent's records of time and attendance show that
during the period September 1974 through January 22,,
1975, when Range( was terminated, that Rangel was absent
or late on a considerable number of occasions, Respon-
dent's records also, show that Rangel was given a written
warning about lateness on July 17, 1974, and a similar
warning for absenteeism in November 1974, The record
does not show that he was given any other written
warnings about time and attendance. While Rangers,
record might very well constitute justifiable cause ,for his
discharge, the question presented by the pleadings and the
evidence ,, in the instant proceeding is whether Rangel's
discharge by the Respondent was based substantially or
totally upon his argument ,with Supervisor Davis and his
time and attendance record, or totally or substantially
upon his union activity of which the Respondent had
knowledge.
In view of the Respondent's diligent recordation of time
and attendance between September 1974 and January 22,
1975, the fact that Rangel was not discharged for such time
and attendance record, the fact that supervisor Dixon
referred Rangel to the Union for a raise in December of
1974, that the first week in January and on January 22,
1975, supervisor Davis warned him about and expressed
being tired with his (Rangel) lunch time (union) activity;
and the altercation about a ladder between Dixon and
Rangel-on January 20 and21, 1975, 1 am persuaded-by- the
total evidence of record, that Respondent's discharge of
Rangel was at-least substantially, if not totally, motivated
by Rangel's union activity. The Respondent's complaint-
about Rangel spilling paint on the floor and the recent
ultimate significance attributed to his time and attendance
record is merely a pretext to-justify Rangel's discharge.
When the entire antiunion climate so well demonstrated by
Supervisors.Thompson, Smith, Parks, Mallet, and Dixon is
taken into consideration, the conclusion is inevitable that
such acts of reprisal as the reassignment of Shirley Moore
to more onerous work, followed by her discharge under
questionable medical circumstances, without consultation
with her, the surveillance of known,union organizers on
and subsequent to October 15, 1974, by Chief Supervisor
Thompson, the coercive interrogations by several of
Respondent's supervisory personnel, Kenneth Smith,
Frank Parks, Richard Mallet, and David Dixon, it is
obvious that Rangel, who too was known to have been
engaged in union activity, was no exception for reprisal
and therefore, was discriminatorily discharged in violation
of Section 8(a)(3) and (1) of the Act. The record clearly
shows that, but for the altercation between Rangel and
David Dixon on January 21 and 22, Rangel would not
have been discharged on January 22, 1975, as Respondent
now contends.
Moreover, although Rangel's testimony on cross-exami-
nation cited ' by counsel for the Respondent;. tends, to
indicate some selectivity, confusion, and uncertainty with
reference to what Rangel said to Davis and what Davis
said to Rangel during their altercation on January 21 and
22, 1975, I do not deem such testimony sufficiently relevant
or discredible to overcome the antiunion motivation for
Rangel's discharge by Davis, because the evidence clearly
shows that the very altercation between them and the
ultimate, discharge of Rangel was precipitated by Davis'
antiunion feeling about Rangel's lunchtime (union) activi-
ties with the Mexican-American employees. Consequently,
when the evidence of record is carefully scrutinized, it is
readily discernible that the,substantial motivating cause of
Rangel's discharge was not his uncomplimentary time and
attendance record for which he could have been justifiably
discharged' at a prior time, nor for the alleged insubordina-
tion arising out of an,altercation motivated by the union
animus of his immediate supervisor, Kenneth Davis, as a
result of Rangers lunchtime (union) activities. with the
Mexican-American employees, of which Davis had knowl-
edge and to which he most recently made several
references. This is so because it is especially noted that-
Respondent does not contend or show that Rangel was late
on January 21 or 22 in violation of prior warnings which
had heretofore been condoned by Respondent. '
Finally, after carefully reviewing the evidence from every
dimension most favorable to the Respondent, I am
persuaded that neither the discharge of Shirley Moore nor
that of Abram Rangel was significantly disassociated from
their union activity, of which the Respondent had full
knowledge. Although the General Counsel did not produce
FOX & JACOBS, INC. 1169
other employee witnesses who engaged in union activity,
the evidence of record does not demonstrate that the
Respondent had comparable knowledge of the union
activities of any significant number of its other unidentified
employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained , and coerced employees Shirley Moore, Jack
Moore , Kenneth Dixon, Abram Rangel , and/or its
employees in the exercise of their Section 7 protected
rights, in violation of Section 8(a)(1) of the Act; that it
made a discriminatory work assignment to Shirley Moore
on October 21, 1974, and that it discriminatorily dis-
charged Shirley Moore and Abram Rangel in violation of
Section 8(a)(3) and (1) of the Act, the recommended Order
will provide that Respondent offer Shirley Moore and
Abram Rangel reinstatement to their jobs, and make them
whole for loss of earnings if any, within the meaning and in
accord with the Board's decision in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 ( 1962). Except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with , restraining and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
CONCLUSIONS OF LAW
1. Fox and Jacobs, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 714, International Union of Operating Engi-
neers, AFL-CIO, is and has been at all times material
herein, a labor organization within the meaning of the Act.
3. By coercively interrogating Jack Moore, Shirley
Moore, Kenneth Dixon, Abram Rangel, and other employ-
ees about their union interests or affiliation, Respondent
violated Section 8(a)(1) of the Act.
4. , By threatening employees Jack Moore, Shirley
Moore, and Kenneth Dixon with surveillance of their
union activities, Respondent violated Section 8(a)(1) of the
Act.
5. By discriminatorily reassigning Shirley Moore to
more onerous work for engaging in union activities the
Respondent violated Section 8(a)(3) and (1) of the Act.
6. By discriminating in regard to tenure of employment
of Shirley Moore and Abram Rangel, thereby discouraging
membership in the Union or other labor organization,
Respondent has engaged in unfair labor practices con-
demned by Section 8(a)(3) and (1) of the Act.
7. 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:
ORDER?
Respondent, Fox and Jacobs, Inc., Dallas, Texas, its
officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their past and
current union interests or affiliation.
(b) Threatening its employees with surveillance of their
union activities or actually carrying out such threat:
(c) Discriminatorily reassigning an employee to more
onerous work for her union activities.
(d) Discriminating in regard to tenure of employment of
employees, thereby discouraging membership in the Union
or labor organizations.
(e) 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 necessary to
effectuate the policies of the Act:
(a) Offer Shirley Moore and Abram Rangel immediate
and full reinstatement to their former position, or, if such
position no longer exists, to a substantially equivalent
position without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any loss of
pay suffered by reason of the discrimination against them
with interest at the rate of 6 percent, in the manner
described in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
7 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 herem 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.
1170' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at Respondent's plant at Dallas, Texas, copies of
the attached notice marked "Appendix."'8 Copies of said
notice, on- forms provided by` the Regional Director for
Region 16, after being duly signed by Respondent's
representatives, shall be posted by it immediately- upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable'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 for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT Is FURThER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
8 In the event the Board's Order is enforced by a Judgment of the' United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board" shall read "Posted Pursuant to a