Frank Black Mechanical Services

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1302 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Black Mechanical Services, Inc. and Harris-
burg and Central Pennsylvania Building and
Construction Trades Council. Cases 4-CA-
12447 and 4-RC-14796
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 September 1982 Administrative Law
Judge John H. West issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, the Charging Party filed exceptions,
and the Respondent filed cross-exceptions and a
supporting brief and a brief in reply.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, t and
conclusions2 and to adopt the recommended Order
as modified. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Frank Black Mechanical Services, Inc.,
Carlisle, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful layoffs and notify the employees in writ-
' Chairman Dotson would find, contrary to the judge, that it is not a
violation of Sec. 8(aXl) of the Act for an employer to request that an
employee attempt to dissuade other employees to vote against the union.
The Respondent has excepted to some of the judge's credibility findings.
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings. We also find totally without merit the Respondent's allega-
tions of bias and prejudice on the part of the judge.
2 In stating that Wright Line, 251 NLRB 1083 (1980), does not apply
here because this is a pretext case, we believe the judge meant to say that
it is unnecessary in cases such as this one to formally apply the analysis
set forth in that decision because "a finding of pretext necessarily means
that the reasons advanced by the employer either did not exist or were
not in fact relied upon, thereby leaving intact the inference of wrongful
motive established by the General Counsel." Limestone Apparel Corp., 255
NLRB 722 (1981). It is clear, however, that the Board's Wright Line anal-
ysis applies to all 8(a)3) and (1) discharge cases regardless of the Board's
ultimate conclusion as to motive. NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
3 We shall require the Respondent to expunge from its records any ref-
erence to the unlawful layoffs of employees Baer, Hench, Reapsome, and
Winters. Sterling Sugars, 261 NLRB 472 (1982).
271 NLRB No. 201
ing that this has been done and that the layoffs will
not be used against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees
about their union activities or sympathies.
WE WILL NOT threaten employees with dis-
charge because of their interest in or activity on
behalf of the Union.
WE WILL NOT threaten to close the plant be-
cause of employees' interest in or activity on behalf
of the Union.
WE WILL NOT coercively interrogate employees
about the union activities or sympathies of their
fellow employees.
WE WILL NOT grant raises or improve the condi-
tions of employment of our employees in order to
dissuade employees from supporting the Union.
WE WILL NOT solicit grievances and imply that
such grievances will be remedied in order to influ-
ence employees against selecting the Union as their
bargaining representative.
WE WILL NOT coercively attempt to induce an
employee to attempt to discourage other employees
from supporting the Union.
WE WILL NOT create an impression among our
employees that their union activities were under
surveillance by informing them that we were
aware of the names of the employees who voted
for the Union.
WE WILL NOT refuse, upon request, to bargain
with the Union as the exclusive collective-bargain-
ing representative of the bargaining unit of our em-
ployees.
WE WILL NOT lay off employees because of their
union activity and to discourage employees' inter-
est and membership in the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL, on request, recognize and bargain
with Harrisburg and Central Pennsylvania Building
and Construction Trades Council as the exclusive
collective-bargaining representative of a majority
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FRANK BLACK MECHANICAL SERVICES
of the employees in a unit appropriate for collec-
tive bargaining with respect to wages, hours, and
other terms and conditions of employment and
will, if an agreement is reached, embody same in a
written, signed contract. The appropriate bargain-
ing unit is:
All plumbers, pipefitters, sheet metal workers,
electricians, operating engineers, asbestos
workers, laborers and service employees em-
ployed by the Employer but excluding all
office clericals, stockroom personnel, salesmen,
estimators, guards and supervisors as defined
in the Act.
WE WILL give backpay with interest to (a)
Charles Baer for the time of his unlawful layoff
from August 6 to December 1981, and (b) Kirk
Hench, Jed Reapsome, and David Winters for the
time of their unlawful layoffs from 28 August to
December 1981.
WE WILL notify each of the above employees
that we have removed from our files any reference
to his layoff and that the layoff will not be used
against him in any way.
FRANK BLACK MECHANICAL SERV-
ICES, INC.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The
charge in Case 4-CA-12447 was filed by Harrisburg and
Central Pennsylvania Building and Construction Trades
Council (Union) on October 1, 1981.1 A complaint was
issued on November 13 alleging that Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(aXl), (3), and (5) of the National Labor Rela-
tions Act (the Act), in that assertedly it interrogated em-
ployees, solicited their complaints and grievances, cre-
ated an impression of surveillance among its employees,
increased the benefits of an employee by granting him a
wage increase, improved the conditions of employment
for one of its employees, threatened to close its facility,
threatened its employees with discharge, discharged four
employees, and refused the Union's request of July 28 for
recognition and collective bargaining with it as the ex-
clusive representative of a specified unit of Respondent's
employees. Respondent filed an answer denying all of
these allegations, except that Respondent admitted that
on or about July 23, Donald Lyons, its vice president,
(I) "made inquiries [of employees] as to the general
nature of the Union activity land sympathies] of fellow
employees; he did not inquire as to the activities [or sym-
pathies] of any specific fellow employee," and (2) he in-
terrogated employees regarding their union activities.2
I All dates are 1981 unless otherwise stated.
2 Respondent, in addition to admitting that Lyons is its vice president,
also admitted that Denver Tuckey is its president and James Herley is a
General Counsel's Exhibit l(e). Respondent also admit-
ted that a specified group of its employees constitute an
appropriate collective-bargaining unit;3 that the Union
did request recognition; and that it has refused to recog-
nize and bargain with the Union.
By order entered March 26, 1982, Case 4-CA-12447
was consolidated with Case 4-RC-14796 which involves
objections filed on October 1 by the Union to conduct
which allegedly affected the results of an election held
on September 24 at Respondent's Carlisle, Pennsylvania
facility. The objections, described more fully infra, in-
volve the same matters alleged in the above-described
complaint.
A hearing on these consolidated cases was held before
me in Lancaster, Pennsylvania, on April 14-16, 1982, and
on May 3, 1982. On the record, including the demeanor
of the witnesses, and after due consideration of the briefs
filed by the General Counsel, the Respondent, and the
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, is a mechani-
cal contractor engaged in the construction business. The
complaint alleges, the Respondent admits, and I find that
at all times material Respondent has been an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
Respondent was organized in 1968 when it was sev-
ered from Frank Black Incorporated. At that time it had
five service employees. By 1979 or 1980 it had between
100 and 120 employees. 4 One of Respondent's employ-
ees, Kirk Hench, spoke with Larry Collins, an employee
of the Union, in the spring of 1980. In conversations
which took place over the next year, the two discussed
what the Union had to offer and the possibility of orga-
nizing Respondent's employees.
In the spring of 1981, Collins met with Hench and
three other of Respondent's employees, Charles Baer,
David Winters, and Jed Reapsome. These four employ-
ees formed an organizing committee and determined
which of Respondent's employees were then invited to
attend the approximately 10 meetings which were held at
the union headquarters in Cumberland, Pennsylvania, be-
ginning in May and continuing over the next few
supervisor who, along with Tuckey and Lyons, are supervisors within
the meaning of the Act.
3 The unit is as follows:
All plumbers, pipefitters, sheetmetal workers, electricians, operating
engineers, asbestos workers, laborers and service employees em-
ployed by Respondent but excluding all office clericals, stockroom
personnel, salesmen, estimators, guards and supervisors as defined in
the Act.
4Respondent was merged with L. B. Sheetmetal in March 1980. At
the time of the merger, Respondent had 75 employees and L. B. Sheet-
metal employed about 35 people. The latter company was separated from
Respondent in May 1981.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months. Each of these four employees attended all or
most of the meetings.5 And each obtained signatures on
between two and four union authorization cards.6
At approximately 11 a.m. on July 24, Lyons came to
the Carlisle Tire and Rubber jobsite and spoke to the job
foreman, Hench, and Winters at the same time. 7 The
conversation lasted 2 hours. All three testified, with little
if any real disagreement, about its content. When Lyons
came to the jobsite he asked the two employees to step
outside. Then, as credibly testified to by Winters:
Don [Lyons] said, I'm not one to beat around the
bush so I'll come right to the point. And he said
that he'd already been to some other jobs so he
knew pretty much what he was talking about and
said that the night before he heard from a fellow
that used to work for the company that a union was
trying to get in and he just wanted to know what
we knew about it.
And I said, "Yeah, I guess you're right, Don."
And he said, "What's the problem? Why aren't you
satisfied with what we give you?" And I said I
can't make it on the money that I get.
Then he asked Kirk how he felt, and Kirk said
that he liked the schooling and the pension plan
that the union had to offer. And Don said, "Well
you'd better look into that schooling because there's
a lot of guys with families that won't want to go to
school at night."
And then he asked if those were our only griev-
ances, and I said that I didn't like his nephew work-
ing scale jobs when there were men with families
and bills that could be working them instead of a
college student there for the summer.
· . And Kirk said that in the past five years that
he's been working for the company he'd be lucky if
he got two weeks scale, and there were some guys
that got scale jobs all the time.
And Don said, well there's scheduling problems
and he really wasn't too pleased that we would be
talking behind his back out in the parking lot or on
the jobsite, wherever, and said that we should have
come to him or Denver and asked to see a union
representative instead of sneaking behind his back
like we were doing.
And I said that I really didn't think we were
sneaking behind his back. And the conversation
went on, and he asked if everybody in the company
was aware of what was going on, and we said yeah.
And then he started to go through a list of the em-
b Baer used his car to transport employees, including Ed Spertzel, to
and from the meetings.
6 Whether employee Larry Tennis received his card from Collins or
Winters does not materially adversely affect Winters' credibility. Winters
testified that while he was pretty sure he obtained Tennis' signature when
he gave an affidavit to the National Labor Relations Board (Board)
agent, in view of Tennis' testimony that he received the card from Col-
lins, Winters was not that sure.
7 Evidence of record other than Lyons' testimony, R. Exh. 6, demon-
strates that this meeting occurred on July 24, and not on July 23, as testi-
fied to by Hench and Winters. This mistake, however, does not material-
ly adversely affect their credibility.
ployees, asked how do the plumbers feel? and I said
about half were interested and about half weren't.
And then he asked how the sheetmetal men felt,
and I said one is for it and one is against it. And
then he asked how the electricians felt. [At that
time Respondent employed an electrician.] and I
said Don, everybody is just really interested in what
the union has to say. We're all there just to hear
what they have to say.
And he said, "Well, you'd better make sure that
everybody is aware of what they're going to be
doing." And a little farther on in the conversation
he came out and asked who the union representa-
tives were, and Kirk told him that nobody was
really, that we were all just looking to see what we
could get from the union.
And he said, somebody must at least make phone
calls to the union. And I said well I guess I'm the
one that talks to them, Don. And he said okay, but
you'd better make sure you're not going to lead
people down the wrong road. And asked what
would happen to the guys just starting out. What
would happen, would they be fired or, and we ex-
plained to them that we weren't sure how that
worked but he thought they were put in a new ap-
prenticeship program and receive schooling and a
percentage of the journeyman's rate.
At one point I told him that we weren't looking
to take his job or Denver's job or take the company
over, that we were just looking for a fair wage.
And he said, "Well do you think it's fair for you to
make more money than I do for the job I do?" And
he said, "Would you or Kirk like to take my posi-
tion?" and he said, "Who does the customer call at
night when something goes wrong on a job? They
call me because I'm the supervisor and I have to
take that responsibility, but that's just part of the
job and I accept it."
Then Kirk replied that he really wasn't interested
in taking Don's job or Denver's job or taking over
the company. That we were all just looking for a
fair wage. And Don said, "Well, you don't have to
worry about any hard feelings, because there aren't
any. You guys just go to this meeting on Tuesday
and ask all the questions that you can. Make sure
you know what you're doing."
He [Lyons] was explaining that he felt he was
being left out of our union campaign and we told
him we didn't mean to leave him out personally,
that he was a supervisor and we really didn't think
he'd be interested in what the union had to say.
And he said, "Of course I'm interested in what the
union has to say, but I wasn't even invited to a
meeting."
And Kirk said, "We'd be more than happy to
have you at the meeting next Tuesday evening."
And I said, "that's right, the more votes we have
on our side the better, and Frank and Denver are
more than welcome to come to a meeting any time
they like."
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FRANK BLACK MECHANICAL SERVICES
. . .at one point we were talking about Denver's
taking over the company and about the wages we
were getting paid. And I said, "So you're saying
that when Denver takes over things are going to be
better?" And Don said, "No, I can't promise you
anything like that, but do you think things will be
better if the union comes in?"
And he said, "Like where are we going to get
our work? The only contractors we work with are
non-union."
And Kirk said, "What about right here, Don?
We're the only non-union contractors on the site."
And Don said, "Well, that's pretty much an ex-
ception, and even if we do go union we'll just close
the doors and start again with three servicemen like
we did before."
. . . after the conversation we got in contact
with Larry Collins and he told us it would be a
good idea if we wrote down what went on in the
conversation. And I wrote up a rough draft of what
I could remember of the conversation and then
Kirk and I got together, and Kirk added some
things and we corrected some things, and we came
up with what you see before you. And I gave it to
my wife and she wrote it up so that it was legible.
The Board was supplied with the handwritten summary
of the conversation along with a typewritten copy, typed
by Collins' secretary.
The day before, July 23, Lyons, while at a jobsite of
Respondent in Bethlehem, Pennsylvania, was told by
Spertzel that an attempt was being made to organize Re-
spondent's employees. 8 Lyons testified that the next day
he asked Hench and Winters if there was any truth in
what he heard; that "at the first glance, I seen [sic] some
red faces, some change of experience [sic, the word
should be expression] that I sort of surprised somebody
maybe. But they said yes there is [union] activities"; that
he advised Hench and Winters that they were free to in-
vestigate the Union and "if there's problems let's bring
them back and we can sit around and discuss them and
see what we could or couldn't do"; that he asked if cer-
tain classifications were involved; and that he stated that
Respondent did not work for union contractors which
would mean that Respondent would have no business.
Before leaving on vacation on Friday, July 24, Lyons
told Tuckey that he heard a rumor about an attempt to
organize Respondent's employees and he had spoken to
Hench and Winters and "they verified it." Tuckey re-
sponded, according to Lyons, ["Y]ou're going on vaca-
tion tonight. We'll check it out and see what's happen-
ing." 9
8 According to Lyons, Spertzel told him that one of Respondent's
former employees, Danny Ponnicker, was the one who mentioned the
union activity.
I Tuckey initially testified that Lyons asked him if he knew that the
Union has been trying to organize Respondent's employees, and that he
told Lyons he knew nothing about it. Lyons testified that the he did not
ask Tuckey if he knew about the union activity but rather he told
Tuckey about the union activity. Lyons was sure that Tuckey did not say
he knew nothing about it. Lyons testified that he did not discuss the
As he left Respondent's facility at the end of the work
day on July 24, employee David Helm was told by
Tuckey that there was "a rumor going around about
some of the guys trying to get the Union in .... "
Tuckey asked Helm if he had heard anything. Helm had
not and he said so. Helm went on to explain to Tuckey
that because up until recently he worked in the office,
the employees still considered him as part of manage-
ment and therefore would not confide in him.' 0
Tuckey thought he asked several employees this same
question between July 24 and July 31 when he saw the
Union's request for recognition, but he could only specif-
ically recall asking Helms. Also, he recalled with respect
to the others that he "got no information. Everything
was a surprise to everybody that . . . [he] had talked
to." Tuckey did not recall asking any of the employees
whether they attended any union meetings. Tennis testi-
fied that in the middle of July he walked into Lyons'
office to fill out his timecard and Tuckey said: "There is
a rumor going around about the Union, what do . . .
[you] know." Tennis said the only thing he knew was
that he "was at a meeting once or twice ... ."
On Monday, July 27, Baer, who had been transferred
from Respondent's commercial department to its residen-
tial department, was taken to a job Respondent had at
Dickinson College in Carlisle. Helm, who had previously
worked the job which involved the Media Center build-
ing, had been transferred to another job on the Dickin-
son College campus in the communication and develop-
ment building, and he instructed Baer on what had to be
done on the Media Center job. Baer testified that when
he was given the Media Center job on July 27, Tuckey
told him that later he would work on the third job Re-
spondent had on the Dickinson College campus.
The union meeting Winters referred to in the above-
described conversation with Lyons was apparently held
on Tuesday, July 28, for Helm testified that he attended
union meetings and he signed a card on July 28 which
Collins gave him. By July 28, 19 of Respondent's 31 per-
tinent employees had signed authorization cards.'' In a
union activity with Tuckey on July 23 or on July 24 before he spoke
with Hench and Winters. Also, Lyons testified that although, in his opin-
ion, the company would lose 75 percent of its business if it were union-
ized, he was not that concerned.
"' During this conversation Helm asked Tuckey "how he [Tuckeyl
was making out on buying the company, buying the ten-year lease on the
company." According to Helm, Tuckey replied that "[since the] union
[activity] come up, a big red nag come up and and he's [Tuckeyl sort of
holding on that until he could find out what was going on." Also, ac-
cording to Helm, Tuckey said that, if the Company did go union, it
would lose about 80 percent of its business to which Helm agreed adding
that it might be more than that. Tuckey testified that he thought this con-
versation occurred on either July 27 or July 28, and that Helms said,
"We don't work for union contractors. We get all our work locally.
What would happen to our business if we joined the union?" Helm's testi-
mony was very detailed and he impressed me as being a sincere and
honest individual. His testimony regarding when this conversation oc-
curred and its content is credited fully.
I The parties stipulated to a list of the 31 employees in the unit at that
time. Jt. Exh. I. There were 19 authorization cards received in evidence
herein. G.C. Exhs 3-12, 14-17, 19-21, 24. and 26. All but two of the
cards were signed by July 21. The other two were both signed on July
28. Respondent unsuccessfully objected to the introduction of four of the
cards. Its objections were not reviewed on brief. Evidence was intro-
Continued
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter dated July 28, forwarded to Frank Black, chairman
of the board of Respondent, the Union requested recog-
nition. By petition filed with the Board July 30, the
Union requested to be certified as the representative of
the employees. (Jt. Exh. 2.)
On Friday, July 31, Tuckey, in response to a note left
on his desk, went to Frank Black's office where he was
shown for the first time the letter of the Union request-
ing recognition. Tuckey testified that he was sure this
meeting occurred in the afternoon; that he rarely ever
saw Black in the morning; and that he did not specifical-
ly remember if it was before or after 3:30 p.m., but he
thought it was late in the afternoon because Lyons was
on vacation and he was out doing Lyons' work much of
the day.
Baer testified that on July 31 he:
. . . came into . . . [Lyons'] office to fill out my
time card. Denver asked me, he says, "What's this I
hear about you organizing the boys to go union?" I
replied, "Are you serious?" He says, "Yes." I said,
"Well, where would you hear a thing like that?" He
replied he heard it. I didn't want to make conversa-
tion at this time and I had some paperwork, addi-
tional paperwork, material requisitions to transport
to another office, Jim Herley's office. So I left, de-
livered those papers and came back. Upon return-
ing, I said to Denver, "Well, if this is true what you
heard, what is your feeling on it?"
He was hesitant a little bit about talking and he
did express to me that he didn't think it would
work, the people we worked with, the contractors,
were of non-union status and that, you know, our
customers just didn't want union type working
people. There was very little else said.
At that time Dave Winters and I think it was
Kirk Hench came into the office and I sort of more
or less excused myself and left at that time.
Tuckey, who was present throughout the hearing, was
asked by one of Respondent's counsel if he heard Baer's
testimony regarding the above-described July 31 conver-
sation. Tuckey responded that he had, but when asked
whether he had such a conversation on that date,
Tuckey responded, "Not to my knowledge, I did not. I
don't recall having a conversation with him at that
time." As noted supra, Tuckey was not merely an officer
of Respondent. When the organizing commenced, he
was in the process of attempting to negotiate a long-term
lease of the involved business. Apparently the success or
failure of the organizing drive would affect Tuckey's
plans. Baer impressed me as being a credible witness. His
duced which demonstrates that all save one of the signers read and were
aware of what the cards stated, viz, "I desire to be represented by the
Harrisburg and Central Pennsylvania Building and Construction Trades
Council as my Bargaining Agent in matters of wages, hours, and other
conditions of employment." Timothy Heimbaugh's card was sponsored
by Hench, who gave Heimbaugh the card, and later received the signed
card back from Heimbaugh. Hench did not testify that he saw Heim-
baugh sign or read the card. But Hench recognized the signature from
personal familiarity with it and the signature matches the unquestionably
genuine signature of Heimbaugh on his W-4 form (G.C. Exh. 23). Speit-
zel, among others, did not sign an authorization card.
testimony was detailed and he neither evaded nor
equivocated. On the other hand, Tuckey did not impress
me as being a credible witness. Often his testimony
lacked detail and was evasive or equivocal. He conveyed
the impression that, instead of responding spontaneously
in a candid manner, he would, before responding, weigh
the ramifications of each question with respect to the
Company's position. When he believed the answer might
adversely affect Respondent's position, the response was
given in terms of uncertainty. At one point, as treated
infra, with the help of one of Respondent's attorneys he
set about to impeach his own testimony. Baer's testimony
is credited.
While he was working on the communications and de-
velopment building on the Dickinson College campus the
first week of August, Helm was told by Tuckey that "we
have a job coming up that we're working on that's right
here in Carlisle like I promised you, and I can't give you
too many details on it right now." When Helm was re-
lieved of his supervisory position in January 1981, be-
cause of the decline in the number of employees in his
department, Tuckey assigned him to the residential de-
partment in a field position and told him that he would
be assigned the next big job that came along.
On Thursday, August 6, Baer was laid off. Tuckey,
the first witness called by the General Counsel, testified
on the first day of the hearing herein that he made the
decision to lay off Baer; that Baer was laid off because
Respondent had no other work for him; and that there
was no other reason for the layoff. Also, Tuckey testified
that he heard a rumor that Baer was involved in the
union campaign "[s]ometime during the campaign. I
don't know the exact date." Tuckey did not think he
heard the rumor about the time Black received the
Union's request for recognition, and he was not sure
whether he heard the rumor about Baer before he was
laid off. But he did hear it before the September 24 elec-
tion. When asked by General Counsel "[i]sn't it possible
that . . . [Baer] was still employed when you heard that
rumor about . . . [him]," Tuckey replied, "I am not
saying it isn't possible, I don't think it was true-that
that is true." Baer's layoff was indefinite vis-a-vis perma-
nent because, according to Tuckey he did not know
whether he was going to need Baer again; whether he
would call him again.
Baer was working on the media center building at the
Dickinson College campus when he was laid off. There
was some work to be done on the job, viz, to set in con-
ductors, before Respondent would have to stop working
and wait for the general contractor to complete the fin-
ishing work before Respondent could hang the fixtures.
Tuckey came to the jobsite on the afternoon of August 6
and, as testified to by Baer:
We went over the job as to its conditions, what
was left to be done and so forth. That is when he
informed me that he had to lay me off because of
lack of work.
I was probably a little bit upset at the time and I
said to him, "Are you sure-is this the reason I am
being laid off? I am not going to be upset if that is
1306
FRANK BLACK MECHANICAL SERVICES
the reason but if it is for some other reason then I
have the right to be upset."
He assured me again that, you know, that it
wasn't that. We talked. I don't know exactly what
we talked about for a few minutes there. He did
bring up the subject that he had received a letter
that we had sent filing for a petition for election.
He brought that up that afternoon.
Like I said I was, you know, I was at loose ends
probably and we just cut the conversation short. He
said I was to come in the next day to turn in the
keys, the paperwork, et cetera.
On the last day of the hearing Tuckey was called by
Respondent's counsel. Regarding the Baer layoff,
Tuckey testified that Baer was temporarily laid off for a
couple of weeks in June and, when he was recalled, he
was assigned a job for the Giant Food Company with
the understanding that Respondent had "no prospects for
the future"; that then Baer was transferred from Re-
spondent's commercial department to its residential de-
partment because of a lack of large jobs of the type Baer
normally handled;' 2 that when Baer was transferred and
given the job as a mechanic (journeyman) on the media
center building he was advised that it was because Re-
spondent had "no prospects for the future"; that when
Baer was laid off Tuckey had no reason to believe Baer
was engaged in union activities; and that Respondent
was pleased with Baer's work performance. On cross-ex-
amination Tuckey testified that the decision to lay off
Baer was pending probably since July when Baer left the
Giant Food Company job and it depended on the
amount of work Respondent had.
With respect to the third job at Dickinson College,
Tuckey testified that neither he nor anyone else in the
Company gave Baer reason to believe that he would be
assigned this job. It was described as an extremely minor
job, involving only a matter of days work and it was a
matter of guessing when "they were going to need
anyone." Richard Hockensmith was assigned the job
early in the week of August 3.13 Tuckey testified that
the job involved some carpentry work and since Hock-
ensmith spent several years in the house-building business
he was, in Tuckey's opinion, better qualified than Baer to
do the job.
On redirect the following exchange occurred between
Tuckey and one of counsel for Respondent:
Q. Let me show you the personnel files for Rich-
ard A. Hockensmith and Charles E. Baer, and ask
you to take a look at the wage rates that they were
being paid. [Pause]
Q. See if there is any difference between the two
gentlemen.
A. Yes there is.
Q. What is the difference?
12 Baer, a working foreman making over $8 an hour, had worked for
Respondent since 1973 (he was laid off in 1974 and returned in 1975) nor-
mally handling jobs in the $50,000 to $200,000 range.
L3 Hockensmith was included on the above-described list of people
employed on July 28. Apparently he did not sign an authorization card
since the General Counsel did not introduce such a card Before working
the third job, he assisted Baer on the media center building job.
A. Mr. Baer was receiving $8.40-are you talking
about now or at the time?
Q. At the time Mr. Baer was laid off.
A. Okay Mr. Baer was receiving $8.40, Mr.
Hockensmith, $7.75. $7.00 prior to his $.75 raise on
August 10th.
Q. Were economics ever a consideration in decid-
ing who or what pariticular person should be laid
off?
MR. BUCHHEIT: Objection, Your Honor. He's al-
ready stated-
JUDGE WEST: Overruled.
THE WITNESS: Well, you know, everything be-
comes a consideration. Economics are generally in-
volved in who does the smaller residential-type
work.
Then on recross the following exchange occurred be-
tween Tuckey and General Counsel:
Q. Is it or is it not your testimony that the rela-
tive pay of Mr. Baer versus Mr. Hockensmith was
the consideration in determining the layoff?.
A. Was it a consideration?
Q. Yes.
A. Not a major consideration.
Q. Was it a consideration?
A. At this time I would have to say no, I don't
think it was.
Originally all three jobs at the Dickinson College
campus were assigned to Helm. They were to be com-
pleted by September I before the new school year. But
since Helm could not complete all three jobs in the in-
volved time frame, other employees had to be assigned
to two of the jobs. While Hockensmith was working the
third job, Helm asked the superintendent of the residen-
tial department, James Herley, for help on the communi-
cations and development building job. Herley turned
Helm down at that time, indicating "that he was going
to have a hard time getting . . . [Hockensmith] to go
over to complete the media center job." While he
worked on the communications and development build-
ing, Helm had different people helping him including Re-
spondent's garage mechanic, Bobby Weitzel. Helm asked
Herley and Tuckey for two plumbers to assist him the
first week of August, before Baer was laid off. Two
plumbers were assigned to assist him the second week of
August. In Helm's opinion, Baer was qualified to do the
involved plumbing work on the communications and de-
velopment building. Also, it was Helm's opinion that,
since he was originally assigned the third job, Baer was
also qualified to handle it.
During the first week in August 1981 Reapsome was
transferred from the Bethlehem Leader Nursing Home
job to the Carlisle Tire and Rubber Company job.
The second week in August Tuckey came to the com-
munications and development building jobsite and, ac-
cording to the testimony of Helm:
[Tuckey] pulled me off to the side and said that
we got the job over here at the Thornwald Nursing
Home and we want, you know, it's going to be for
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you, and it's right out your back door, and we're
going to try to work it so that you can go straight
from your home to the jobsite and back in without
going into the shop which was a lot closer than the
shop was to my place ....
And he said the job was approximately 3900 man
hours long. And I asked him what he had to do
with the job and he said we had the plumbing and
the heating and the ventilation and we have a boiler
to put in.
· . then he [Tuckey] said, you know how the
company feels about the union. Would you talk to
some of the employees and explain our point of
view to them and tell them how we get our jobs
and what our position is on the matter. And I said I
would.
Helm further testified that Tuckey brought up the sub-
ject of the Union. Also, he testified that, while Tuckey
had promised him in January 1981 the next big job,
Tuckey did not, at that time, promise him a job in the
Carlisle area, less than 2 miles from his house. Helm be-
lieved that the assignment constituted a bribe.
Tuckey testified that he believed that Helm was the
first to raise the issue of the Union during this conversa-
tion; that Helm, after asking how the union campaign
was progressing, said something to the effect that "don't
these people understand that we work for nonunion con-
tractors and where would we get enough work to keep
us busy" and Tuckey replied, "[D]on't tell me, tell
others"; and that there was no deal and Helm did not
have to do anything in exchange to get the job. Helm's
testimony is credited. As indicated supra, Tuckey was
not a credible witness. Helm had signed an authorization
card on July 28. For him to make the statement attrib-
uted to him by Tuckey, Helm would have been acting
deceitfully. Helm impressed me as being a candid indi-
vidual.
On August 10 employee Leonard Witmer received a
raise of 75 cents an hour. He had asked for a raise about
4 weeks earlier but was turned down. Initially, Witmer
asked his immediate supervisor, Terrance Smith, who
spoke with Tuckey. Smith recommended to Tuckey that
Witmer not receive a raise until his performance im-
proved. Tuckey went along with the recommendation,
and Smith testified that he told Witmer that "it wasn't
that long a period of time that I felt he wasn't ready yet
for a raise." Also, Smith advised Witmer that he would
have to improve his performance. Witmer again asked
for a raise 3 or 4 weeks later. Smith and Witmer met
with Tuckey. Witmer received the raise. In reply to the
question on cross-examination, "Did . . . Witmer's per-
formance improve?" Smith responded, "With improve
some." On further cross-examination Smith testified that
he did not originally tell Witmer the reason he did not
get his raise was "a long enough period of time hadn't
taken place" and that he did not so testify on direct. M4
14 Witmer received his last raise in January 1981.
When then asked what Witmer did in the 3- or 4-week
period to improve his performance, Smith responded, "I
can't recall." And when asked company policy on the
size of raises, Smith testified that it was not his decision,
and he did not tell Witmer about the raise, "Mr. Tuckey
did." Smith conceded that 75 cents an hour was a large
raise for that period. But he pointed out that although
not specifically broken down, the 75 cents was merit
raise plus a cost-of-living raise for 1981. Smith himself
received a raise of 30 cents an hour about the time
Witmer first asked for the involved raise. Smith did not
receive a cost-of-living increase in 1982.
Witmer testified that when he first asked for the raise
he spoke with Tuckey who told him that he was not get-
ting a raise because he "wasn't there long enough . . .
[he] didn't have a lot of experience"; that Tuckey told
him his work was okay; that in late July or August
Tuckey called him into his office and, with Smith
present, told him that his record had been reviewed and
Tuckey was going to give him the raise; and that the
largest raise he had received in the past was 50 cents an
hour.
Tuckey testified that, when Witmer first asked for the
raise, Smith recommended against it and he agreed; that
Smith then talked to Witmer; that when Witmer again
asked for the raise Witmer asked if he could talk to
Tuckey this time; that he did talk to Witmer then and
told him he would "do some further review and get back
to him in a few days"; that all of the discussions of
Witmer's pay raise took place before Tuckey heard
rumors about union organizing; and that Witmer re-
ceived the pay raise because:
. . . Mr. Witmer had come along and probably
gotten increases quicker by far than the average
person who works there. At this particular time,
when he first asked for the increase, he was work-
ing in the service department. Just about the time
he asked to talk to me about an increase, he trans-
ferred, I think, to the residential department. I'd had
another request about this same time from Rich
Hockensmith in the residential department request-
ing an increase, and at the time, both of them had
not had an increase since January of '81. Both of
the men were going to be working together, both of
them were going to be making the same amount of
money and so we decided that we would give them
an increase. They were given a $.75 increase at that
time, told there would be no cost of living increase
coming up in the future. That, I'm sure, is why with
our declining business, we just couldn't look ahead
to a cost of living increase at the end of the year.
And since they had requested an increase now they
were given $.75 and told that that would be it for
the year.
According to Tuckey, it was customary for Respondent
to give a cost-of-living increase each year and he made
the decision to give Witmer the raise in mid-July; "[tlhe
files laid on my desk of a week or so before any action
was taken on it, but I think they were told, I think their
supervisor was told to go ahead and tell them it was
1308
FRANK BLACK MECHANICAL SERVICES
coming." On cross-examination, Tuckey testified that
there was no across-the-board cost of living given in
1981, and that Witmer received a merit increase in
August 1981.
Lyons and Hench attended a weekly progress meeting
on Tuesday, August 25, at the Carlisle Tire and Rubber
Company. Regarding the meeting, the former testified as
follows:
At that meeting, we discussed the problems relat-
ing to what we would be doing next week; what we
had completed in the past week, and how we keep
this project on schedule.
And as we completed this conversation there,
and the gentlemen took the minutes and so forth of
it, he said, after the meeting, we would like to keep
some representative from Frank Black Mechanical
Services, a representative from the electrical con-
tractor; and also the contractor from the riggers, at
that time. We would like to talk to you after the
meeting.
So, at that time, we dispersed-our foremen went
back to work, and we had another meeting in there.
. they told me that due to the lack of work,
they were going to lay approximately 120-some
employees off, that they wanted to terminate our
work as of Friday night [August 28].
And this was a big surprise shock to me.
[Since I did not] . . . know about this particular
subject before that meeting.
After the meeting was over, I went out and got
my men together, and told them the news that we
were just told inside that job would be terminated
as of Friday night, and I was supposed to have ev-
erything as complete, as much as I could into
Friday night, with the manpower situation that I
had.'
It was estimated that Respondent had about 1 month's
work left to do. At the time, Respondent had three em-
ployees on the job, viz, Hench, Winters, and Reapsome.
Lyons left the Carlisle Tire and Rubber project, returned
to Respondent's facility and, according to his testimony,
then informed Tuckey of the situation.
On Friday, August 28, Hench, Winters, and Reapsome
were advised by Tuckey and Lyons that they were laid
off indefinitely because the Carlisle Tire and Rubber job
had been canceled and Respondent had no other work
for them at the time.' As noted supra, Tuckey knew of
i5 The minutes, with a date of August 30 (a Sunday), of the August 25
weekly progress meeting were introduced by Respondent as R. Exh. p. 7.
On p. 2 thereof, under "Additional Comments" it is stated "Contractors
(Aycock and Frank Black) were advised that Carlisle Tire and Rubber
Company would like to terminate their contract as of August 28, 1981."
At the first session of the hearing herein Lyons testified that he was told
at the meeting that Carlisle Tire and Rubber would like to terminate the
contract. At the second session Lyons testified that he was not told at the
meeting that Carlisle Tire and Ruber would like to terminate the contract
but rather that they were terminating the contract.
II Neither of the three was offered another job at a reduced wage.
the union activity of Hench and Winters on July 24.
And, at the first session of the hearing, Tuckey testified
that during the course of the campaign he heard a rumor
that Reapsome was a union supporter and he probably
would have heard the rumor before Reapsome was laid
off. 1 7 But Tuckey testified that the only reason these
three were laid off was the above-described reason
which he gave to them on August 28. As noted above,
Reapsome was transferred from the Bethlehem Leader
Nursing Home job to the Carlisle Tire and Rubber Com-
pany job in the first week in August. According to
Tuckey and Lyons, the transfer occurred so that Re-
spondent could carpool with Hench and Winters. 8
Even though he signed the contract for the job with
Carlisle Tire and Rubber Company, Tuckey testified that
he did not know in advance that Carlisle Tire and
Rubber Company would unilaterally terminate their con-
tract; his first knowledge of that fact came when he re-
ceived a phone call, he believed, from Lyons immediate-
ly after the above-described August 25 meeting at Car-
lisle Tire and Rubber Company.19 Tuckey testified that
he then called representatives of that Company and was
advised that if the contract was not canceled that Com-
pany would have to lay off some of its maintenance
people which it did not want to do.
Neither Hench nor Winters expected to be laid off.
Before August 28, the former had never been laid off in
the almost 5-1/2 years he had worked for Respondent.
In the late winter of 1981 or the early spring when
"things were getting slow" Lyons told Hench that he
need not worry, he would not be laid off. During a slow
day in the summer of 1980 Winters was sent home early.
Lyons told Winters the next day that he "didn't have to
worry too much about being sent home because they
wanted to keep the welders around in case of an emer-
gency welding job that came up." At that time Winters
was not the only full-time welder employed by Respond-
ent. But in August 1981 he was.2 0 Reapsome, on the
other hand, had been laid off by Respondent prior to
August 28. Upon returning in June 1981 from a 6-week
layoff, Reapsome, an apprentice plumber, was sent to the
Bethlehem Leader Nursing Home job at Allentown,
II Tuckey's exact testimony was that he "[plrobably [had knowledge
of the rumor of Reapsome's union activities prior to his layoff] because
that was several weeks later." At the second session of the hearing,
Tuckey testified that he was not aware of the fact that Reapsome was
allegedly involved with the Union at the time of his layoff.
i" The three did carpool since they lived close to each other. Hench
testified that Respondent occasionally made the effort to assign people to
a job based on the location of their residence. And Reapsome testified
that the Carlisle job was closer to his residence than the Bethlehem job
but, while working on the Bethlehem job, he actually came to Respond-
ent's Carlisle facility and then went to the Bethlehem job with the fore-
man.
i9 As noted supra, Lyons testified that he returned to Respondent's fa-
cility and told Tuckey of the meeting.
20 Winters performed tasks other than welding but he estimated that
60 percent of the time he welded. Sporadically, he left the Carlisle Tire
and Rubber job to do welding elsewhere. Tuckey estimated that Winters
welded 80 percent of the time, and that during the period from June 1981
through January 1982 Respondent had enough welding to keep one man
busy for 3 months. During the year prior to Winters' layoff Respondent
utilized nonemployee welders on eight occasions. Subsequent to Winters'
layoff, Respondent's welding was subcontracted and Winters was later
recalled to do some welding.
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennsylvania. Lyons told him that he would be there
only a short time but did not tell him where he would be
sent.
When Hench and Winters began handling heavy pipe
on the Carlisle Tire and Rubber Company job, the
former requested additional help. First Merril Markle,
who was a second mechanic on jobs, was sent to assist
for I week. Then Reapsome was transferred during the
first week of August to the Carlisle Tire & Rubber Com-
pany job, and Markle was transferred to the Bethlehem
Leader Nursing Home job. 21
According to Tuckey it was a
pure, total coincidence that the four individuals in
question who . . . [allegedly were] the four main
union supporters in the campaign were the ones that
were laid off within a month of the filing of the rep-
resentation petition.
He asserted that if Baer, Hench, Winters, and Reapsome
were the four best employees at Respondent that still
would not have saved them from being laid off indefi-
nitely; that only in unusual circumstances would he con-
sider the skill and abilities of the employees before decid-
ing whether to lay them off or someone else in their
place; that in this type of a situation it is absolutely the
luck of the draw as to who stays and who leaves; and
that the involved layoffs were consistent with company
policy.
In part, Respondent's Employee Policy and Benefit
Book (G.C. Exh. 2) reads as follows:
TERMINATIONS
1. Mechanical Services Company desires the courte-
sy of two (2) week notice of voluntary termina-
tions.
2. Layoffs are based upon volume of work on hand.
3. Layoffs are not on a basis of seniority but upon
employee's capability and potential.
4. Layoffs are authorized as a reprimand for careless
mistakes on the part of the employees.
With respect to layoffs, Tuckey testified that in the
year prior to July 1981 he could recall only one employ-
ee who had 2 years' experience who was laid off and not
recalled, namely, a job foreman who had been with Re-
spondent for several years and worked a job after Helm;
that this job foreman (Tuckey could not recall his name)
was laid off because Respondent did not have any need
for him at that time; and that on occasion when he was
dissatisfied with an employee rather than terminate that
employee he would lay off the employee and at the time,
in his own mind, he was sure he would not recall the
employee.
Certain of Respondent's employees also testified re-
garding their understanding of Respondent's policy on
layoffs. Helm, formerly a field superintendent, testified
that it was Respondent's practice to shift employees to
jobs which were finishing up so that when these employ-
ees were laid off they would believe it was because of a
21 Markle was employed by Respondent at the time of the election.
lack of work. The working foreman laid off in the year
prior to July 1981 was specifically identified by Helm
who, in fact, laid the individual off at Tuckey's direction
not because of a lack of work but rather because Tuckey
was not satisfied with the individual's performance. Baer
testified that seldom are employees who have 2 years'
experience laid off. Rather, Respondent usually, accord-
ing to Baer, lays off laborers and apprentices and usually
when the work force is again expanded new people are
hired vis-a-vis recalling those who were laid off. Reap-
some testified that while layoffs frequently occur at Re-
spondent, it was not usual for employees with more than
2 years' experience to be laid off, and usually recalled
since Respondent when it has to expand its work force
generally hires new people.
Respondent employed three or four college students
during the summer of 1981. Tuckey testified that he did
not know if any of them were laid off without checking
his records. Since Tuckey never again spoke to this issue,
it must be assumed that Respondent's records do not
show that any of these summer employees were, in fact,
laid off.
On cross-examination, Tuckey was asked what individ-
uals were laid off from jobs his company completed be-
tween July and October 1981. He responded that he did
not recall and he would not know without checking Re-
spondent's records. Tuckey did testify that most of the
jobs completed during this period were residential jobs
which do not run as long as jobs handled by the com-
mercial department.
On September 24 Witmer had to return from a job to
Respondent's facility since he was the observer for the
Union at the election. At that time Herley, the superin-
tendent of the residential department, was Witmer's su-
pervisor. As credibly testified to by Witmer:
It was about 20 minutes after two, right before I
had to go back to report-to be the observer, and it
was in his office. I was in taking off some material
off of a blueprint, and that's when-well, Jim
[Herley] asked me what I thought about the Union.
I said, "Well, I'm not sure how I think."
And he said, "Well, you must be for it, since you
are going to be the observer for the Union."
And I said, "That wasn't really the case, I was
doing it so the guy with a family wouldn't have to
do it in case the Union would lose; they might lay
him off or something like that."
And I then asked him why they laid the four
men off-referring to Kirk, Dave, Jed and Chuck.
And Jim [Herley] said that they were trouble-
makers and that they were for the Union, and that
they had to get rid them so they wouldn't be
around in another year if there were another elec-
tion. 2 2
22 Apparently this means that, as far as Respondent was concerned, it
was a foregone conclusion that it would win the September 24 election,
and that Respondent was taking that action which it deemed necessary to
assure that it would also win any subsequent election. Herley was the
second witness called by the General Counsel on the first day of the
hearing herein. After laying a foundation, the General Counsel estab-
Continued
1310
FRANK BLACK MECHANICAL SERVICES
On September 24, 29 employees voted. There were 10
who voted for the Union, 15 voted against the Union,
and an additional 4 ballots were challenged. Tuckey tes-
tified that he challenged the ballots of Baer, Hench, Win-
ters, and Reapsome:
Because they were not employed there at that
present time, because the election was held in the
fall of the year which is traditionally our slow-
down period, because we were not in a good eco-
nomic climate and we saw no jobs popping up in
front of us that we were going to be able to bring
people back to work again in the near future.
According to Tuckey these four men were on indefinite
layoff. 23
The morning after the election Lyons spoke to Gary
Nenninger in Lyons' office. The latter testified that
Lyons asked him why he voted for the Union, what the
Union offered as far as wages, if Nenninger was going
into the Union as an insulator or a sheet metal mechanic,
and what the major problem was. Nenninger told Lyons
that he voted for the Union, that he was interested in
sheet metal, and that the major problem was wages.
Before this conversation Nenninger had not told anyone
in Respondent's management how he voted.
Similarly, Tennis had not told anyone in management
how he voted before Lyons interrogated him on Septem-
ber 25. Tennis testified that the morning after the elec-
tion he was in Lyons' office and Lyons asked him why
he voted for the Union. Tennis responded better wages
and benefits.
Regarding the day after the election, Helm testified:
I got into the compound there about twenty min-
utes after 6:00 in the morning, and I got the compa-
ny truck and gassed it up and I went inside to fill
out the gas report-
In Don Lyons' office. And while I was filling it
out Don Lyons came over and closed the door and
walked over behind his desk and was standing, and
he said I know you voted for the union, now I want
to know why.
lished that, after the election, Herley told Witmer that he should consider
getting another job, and he suggested the name of an employer. This was
all the General Counsel sought to establish on direct. Counsel for Re-
spondent during cross-examination asked Herley whether he, using the
language of the complaint, on "or about September 24, which I believe
was the day of the election, interrogated an employee concerning said
employee's union sympathies." Herley responded, "No." The above-de-
scribed testimony of Witmer was given on the third day of the hearing
herein. Respondent did not subsequently call Herley as its own witness to
specifically deny what Witmer testified Herley said about the four laid-
off employees. To the extent Herley denied this conversation, his testimo-
ny is not credited. In my opinion, Herley was intentionally vague and
equivocal. On the other hand, Witmer was forthright. Witmer's testimony
is fully credited.
i3 As explained by Tuckey, a man is on indefinite layoff when the
company does not really know whether it would need him again; wheth-
er it would recall him. Tuckey further testified that since he "did not get
a job by the time the election was [held] and did not have a job lined up
at that time for them, they were still on indefinite."
I said, you don't know how I voted for the
union, nobody does. I said if you and Frank got
that impression from the time that you and he went
down to talk with Larry and me down at the air-
port, that was not intended. I didn't say anything
because I didn't want anybody to get an impression
one way or the other.
And Don said, well most of the votes came from
this department. What were some of the promises
the union made? What did they have to offer?
And I said they offered a pretty good pension
plan, Blue Cross-Blue Shield, which we already
have, and there was another benefit there that I
can't remember right off the top of my head.
He said, well you know the pension plan is paid
by you. And I said no I didn't really dig into that
that deep. And he said, well, we want to get to the
bottom of this. What were some of the other prom-
ises they made? And I said Don, they didn't prom-
ise us anything that wasn't in their contracts. I said
we would have our holidays off without pay. We
would be paying for our own vacation and we'd
probably lose our uniforms.
I said I'll admit I went to some of the union
meetings. In order for me to make a fair vote I have
to know both sides of the story and so I had to go
to the meetings in order to hear the union's side of
the story. I said nobody knows how I voted.
And he said, well, we know the names of some
of the people that voted for the union. Ed and Gary
and John so forth, and we really want to get to the
bottom of this. And I said well what really bothers
me was that at the union meetings the company had
a representative there that ran back and told the
company everything that the union said. I said that
was pretty low. I didn't think the company would
do a thing like that.
Don said there were finks on both sides. He said
after every company meeting, we know who he is
and which phone he used, would call the union and
tell them everything that was said. I said, well I
didn't know about that.
And he said the union really doesn't want you,
they want the company. They could care less about
you. They want the business that the company has
to offer to keep their men busy. And he said even
my job is on the line. And that was basically the
end of the conversation.
Lyons testified, with respect to the three conversations
described above, that he did ask Nenninger what the
Union had to offer in benefits, wages, etc. that Respond-
ent does not; that he initiated the conversation with Nen-
ninger; that he did not ask Nenninger how he voted; that
he asked Tennis what the Union had to offer the Re-
spondent could not; that he did not ask Tennis why he
voted for the Union; that he did speak with Helm; that
he closed the door to his office and asked Helm what
were the selling points of the Union; that he did not tell
Helm he knew how Helm voted nor that most of votes
came from his department; that no employees reported
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him about what was occurring in the union campaign
and he never asked anyone if they attended a union
meeting or to keep him informed about union meetings;
and that one of Respondent's attorneys had told manage-
ment there could be another election in a year.
Nenninger, Tennis, and Helm impressed me as being
credible witnesses. Lyons suspected that certain individ-
uals voted for the Union and by telling them that he
knew who voted for the Union he was able to get two of
the three above-described employees to admit that they
did indeed vote for the Union. Lyons' methods as well as
his manner were deceitful. To the extent that Lyons' tes-
timony conflicts with the testimony of these three em-
ployees, it is not credited.
Witmer was also approached by management the day
after the election. He credibly testified that on Septem-
ber 25:
I was at the Fry Communications job in Mechan-
icsburg. It was the job I was doing, and Jim
[Herley] came down in the morning sometime
around ten o'clock, approximately and we were
talking about the job, and another job that I was
going, on, and I asked Jim what was going to
happen now, and it was pretty tense.
I am sure he knew what I was talking about.
And he said that they were going to get rid of
me, and I asked him why, and he said-again, he
said that it was obvious that I was for the Union,
since I was the observer, and he said that they had
a list of the 10 other men that voted yes and that in
due time they would be gone also.
I told him that it wasn't fair, and he said, well,
the company had to look out for themselves, that
they couldn't afford to have them around in case
there was another election.
Jim said he didn't want to get rid of me because
he needed me in the Department, but he said, you
know, the final decision wasn't his. 24
As noted supra, Herley was called as a witness before
Witmer testified. And he was not called by Respondent
subsequent to Witmer's testimony. Accordingly, Herley
did not specifically respond to Witmer's testimony.
When examined by Respondent's counsel during the first
day of the hearing, Herley did deny certain allegations in
the complaint, viz, that on September 25 at the Fry
Communications jobsite he threatened an employee with
discharge because of the employee's union activity; and
that he created an impression of surveillance among em-
ployees, that their union activities were under surveil-
lance by informing an employee that Respondent was
aware of names of the employees who voted for the
24 Witmer testified that Herley said that somebody told Mr. Black to
get rid of those who voted for the Union.
Tuckey testified that the Company did not have a list of those who
voted for the Union; and that neither he nor any member of management
made any attempt to find out who voted for the Union. When asked if he
even drew columns on his copy of a list of those who are eligible to vote
to indicate who he thought supported the Union ruckey replied: "I don't
know. If I did I did it at home. I didn't do it any place clse."
Union. 25 Herley was not a credible witness and his deni-
als cannot be credited.
As noted above, on October I the Union filed charges
in Case 4-CA-12447, and objections to the elections.2 6
During the first week in October, Lyons advised Helm
that Respondent was hiring a laborer, Barron Meyers,
from the unemployment office. Tuckey testified that
Meyers was a laborer hired on a temporary basis at $3.50
an hour to do excavation work at the Thornwald Nurs-
ing Home job; and that he did not recall one of the four
employees laid off to do this work because it was compa-
ny policy not to go "to someone who was making me-
chanic's rate or a higher rate and saying I'll give you a
job if you work for $3.50 an hour."
On October 8 Witmer was working at the J. C.
Penney Building in Carlisle. He gave the following cred-
ible testimony regarding a conversation he had with
Herley at this jobsite on the date specified:
And I was upstairs working in a bathroom I was
roughing in, and Jim [Herley] came up and I don't
recall exactly how the conversation got started, but
he said that he had a job-or a friend that had a
company that was looking for help, and he gave me
a piece of paper with the name of it on, and I asked
him why I'd be interested in that, and he said be-
cause Mr. Black was putting pressure on him to get
rid of me, and, you know, again, I said that it
wasn't right.
And he said, well, he didn't want to but Mr.
Black was the boss, and that it was his final deci-
sion. 27
l. i'ar. 10(c) of the complaint, which alleges that Herley, at the Fry
Communications jobsite, threatened Respondent's employees with dis-
charge because of their union activity, was not specifically denied by
Herley.
21 Originally the objections alleged the following:
I The Employer engaged in and made material misrepresentation
which created and resulted in a coercive and improper atmosphere
which interfered with the requisite laboratory conditions for the con-
duct of a free and fair election.
2. Interrogated employees regarding their Union sympathies.
3. The Employer by its supervisors or agents promised benefits if
the employees would go along with the Company by voting no.
4 Created the impression of surveillance of Union activities.
5 Created the impression that it was aware of the employees who
had signed authorization cards.
6 Threatened employees with reprisals if they supported the
Union.
7. Laid off or discharged the leading Union adherents because of
the Union activity.
8. Granted wage increases to the employees.
9. Threatened employees that the Company would close the estab-
lishment if the Union won the election.
10. By these and other acts and conduct the Employer prevented
and interfered with the conduct of a free and fair election.
As noted in the Report on Objections to Election and Notice of Hearing
in Case 4-RC-14796 (G.C. Exh. l(k)), in the course of the investigation
on these objections, Petitioner withdrew Objections 1, 4, 5, 6, 9, and 10.
27 The piece of paper, which was introduced (G.C. Exh. 27), contains
the name of a company, the name of an individual and two telephone
numbers. Witmer also testified that Herley said that "somebody told Mr.
Black to get rid of the yes votes." Herley denied that portion of the in-
volved complaint which alleges that at the site and on the date specified
above he threatened an employee with discharge because of the employ-
ee's union activity. According to Herley's testimony, he gave Witmer the
Continued
1312
FRANK BLACK MECHANICAL SERVICES
In October or November 1981 Supervisor Terry Smith
took over a job formerly handled by Galen Brenneman
on the Dickinson College campus. Respondent had to
take the latter off the job because "the people at Dickin-
son College called . . . [Respondent] and complained be-
cause the man . . . [Respondent] had up there [Brenne-
man] was sitting in his truck reading books and taking a
nap every now and then [and Respondent was informed]
[t]hat if.. . [it] wanted to continue to do work for . . .
[the College, Respondent] would have to remove [the
employee]." Brenneman was then sent to work at the
Bethlehem jobsite.
As noted supra, the complaint was issued in Case 4-
CA-12447 on November 13. A few weeks later Re-
spondent's counsel sent, by certified mail, the following
letter, as to Baer, Hench, Winters, and Reapsome:
We were informed by Frank Black Mechanical
Services, Inc. that you had been laid off from your
job due to lack of work. At that time of layoff
during the latter part of this summer there was no
expectation of recall due to poor economic condi-
tions and a lack of new projects.
There are now a few job openings in the Compa-
ny for mechanics. This fact is due to the recent ob-
taining of some new projects. We are writing you as
an authorized representative of Frank Black Me-
chanical Services, Inc. to inform you of this recall
back to work with the Company effective Novem-
ber 30, 1981.
You would be reinstated with the same wage rate
and benefit package as you had at the time of your
layoff. If you are interested in resuming work with
the Company please contact Frank Black Mechani-
cal Services, Inc. within two weeks of the receipt of
this letter and advise the Company of your inten-
tions. If the Company does not hear from you
within this time, it will conclude that you are not
interested in resuming your work with Frank Black
Mechanical Services, Inc.
You have already been contacted by telephone
by the Company concerning this offer of reinstate-
ment. Should you not wish to return, please notify
the Company immediately as it will need to hire
other mechanics. [Emphasis added.]2 8
When first called by the General Counsel, Tuckey tes-
tified that between July 28 and December 1 Respondent
hired five employees, either at minimum wage or from a
name of the other employer because, in Herley's opinion, Witmer was
dissatisfied with his job. On cross-examination beginning, as pertinent,
with the question, "[A]re you personally aware of any employee who
was threatened, coerced or intimidated by the company at any time,"
asked by one of the employer's attorneys, the following testimony was
eventually elicited from employee Timothy Richwine: Herley told him
that "since Mr. Witmer voted for the union or will vote-I am not sure, I
don't remember wrhen it was-he should be looking for another job."
Herley did not subsequently testify and consequently he did not specifi-
cally deny this exchange. Herley was not a credible witness. Witmer's
testimony about what Herley said on October 8 is credited.
28 Tuckey testified that the men were not called back because of new
work but rather because additional help was required on existing jobs.
Lyons also testified that he was not aware of any new projects. and that
Respondent did not normally send certified recall letters.
public training program, to work on a low-budget hous-
ing project in Carlisle; that it hired only one person who
was not a laborer or trainee, viz, Russel Cristy at $5 an
hour to do the gas piping on this project: and that he
could not recall Respondent hiring anyone else during
this period. Later in the hearing. Respondent called
Tuckey as its witness. On cross-examination by the Gen-
eral Counsel Tuckey then testified that between the end
of September and November 23 Respondent hired eight
named individuals and paid them under $4.75 an hour;
that Cristy was paid $5.50 an hour; and that Respondent
hired specified individuals on specified dates to perform
specified tasks at specified salaries, respectively, as fol-
lows:
David Lynch, Sept. 28, plumber, $7 an hour
Hebert Winger, Nov. 3, plumber, $15.93 an hour 2 9
Galen Brown, Oct. 5, mechanic, $5.25 an hour
William Barker, July 13, plumber, $5.5030
Winters returned to work at Respondent's on Decem-
ber 14 and spent most of the time welding. He was sub-
sequently told that he was being laid off again on Janu-
ary 27, 1982, by Lyons. Regarding the conversation he
had with Lyons about the January 27, 1982 layoff, Win-
ters credibly testified as follows:
Don [Lyons] was saying that they didn't have
any more work for me. And I said, well I know
there's work at Dave Helm's job. You mean I can't
go up there and solder pipe or run sheetmetal or
anything? And he explained that those jobs were al-
ready filled and said that you guys want to be
union, we're going to treat you like you are union.
And then I asked if my layoff was because I was
involved in the union, and Don said no, that if we
just, if we wanted to be union they were going to
treat us like we were union and that's as far as he
explained it.3 1
Respondent introduced evidence (R. Exhs. 9, 10, I l(a),
and I (b)) which collectively shows that there was a re-
duction in the number of field personnel in 1981 begin-
ning in January when Respondent had 62, vis-a-vis 70 in
December 1980 and as many as 81 in August 1980, and
reaching a low of 32 in September 1981. The number in-
creased to 44 by December 1981. The exhibits also show
that Respondent's sales declined in every month of 1981
vis-a-vis the corresponding months of 1980, except for
April and July 1981.
29 The $15.93 was a "scale" job. In other words., the job was a public
works project and the wage rate was determined by the State of Pennsyl-
vania. Winger was laid off on December II for lack of work but he re-
sumed working for Respondent as a laborer at $1 1 98 an hour at the same
scale job.
so Baker, a resident of Bethlehem, and possibly Lynch were hired to
work on Respondent's Bethlehem Leader job.
s3 Winters prepared an account of this conversation and later submit-
ted it to the Board Lyons testified that he did not make any statement to
Winters on January 27. 1982, to the effect that "if you guys want to be
union we are going to treat you like it." Lyons was not a credible wit-
ness. Winters was.
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. DISCUSSION AND CONCLUSIONS
Respondent, as discussed infra, committed a number of
unfair labor practices within the meaning of the Act,
which practices undermined the majority achieved by
the Union, vitiated the above-described election, and pre-
cluded the possibility of a fair election. Consequently, it
is my opinion that this is an appropriate case for a bar-
gaining order.
Collectively the complaint alleges over 25 violations of
Section 8(a)(1) and (3) of the Act. It is alleged that Sec-
tion 8(a)(1) was violated when Lyons conversed for 2
hours with Hench and Winters at the Carlisle Tire and
Rubber Company job on July 2432 in that Lyons asked
the two employees about their union activities and the
union activities and sympathies of their fellow employ-
ees, solicited complaints and grievances thereby implied-
ly promising increased benefits and improved terms and
conditions of employment, and threatened that Respond-
ent would close its doors if a union was selected. As
noted above, in its answer to the complaint, Respondent
admits that Lyons interrogated Hench and Winters about
their union activities. But with respect to the union ac-
tivities and sympathies of fellow employees, Respondent
admits only that Lyons "made inquiries as to the general
nature of the union activity [and sympathies] of fellow
employees . . . [Lyons] did not inquire as to the activi-
ties [or sympathies] of any specific fellow employee."
(G.C. Exh. l(e).) The General Counsel argues that
Lyons' "general" questions about union sympathies
among classifications of Respondent's employees were in
reality very specific questioning as to who was in favor
of the Union in that at that time Respondent employed
two sheetmetal workers and one electrician; 33 that
Lyons admitted that he unlawfully solicited grievances;
that the credible evidence of record demonstrates that
Lyons threatened to close Respondent's facility and start
over with three employees; and that even Lyons' own
testimony shows that his prediction of a loss of business
was a thinly veiled plant closure statement that was not
based on any objective facts explained to employees.
In asking who supported the union by job description,
Lyons was asking Hench and Winters about the union
sympathies of at least one specific fellow employee, viz,
the election. In view of Lyons' subsequent conduct of
September 25, and in view of other credible evidence of
record, Respondent wanted to know specifically who
was supporting the Union. Lyons asked the question in
such a way that he could obtain specific information. He
did not ask simply if most of the employees supported
the Union. Rather, he asked by job descriptions so that if
Hench and Winters said yes when he asked about the
32 The complaint states on or about July 23.
'3 The General Counsel also submits, on brief, that at that time Re-
spondent also employed only one welder. In view of the fact that Win-
ters was the one full-time welder and since Winters had already conceded
his union sympathy earlier in this conversation, there was no apparent
need to, and Lyons apparently would not, have to inquire as to how the
welder felt about the Union. Lyons testified, however, that he asked if
the "welders" were involved. Although Winters was the only full-time
welder, Respondent did have other employees who welded but not on a
full-time basis. One of them, Speitzel, was the individual who told Lyons
about the organizing attempt.
electrician he would know who it was and if they said
yes about the sheetmetal workers he would know specifi-
cally who they were. Possibly, he expected Hench and
Winters to name the individuals in the job descriptions
but when they did not he did not press them on this. In-
stead of asking a general question, Lyons asked a ques-
tion which encouraged a specific response and in at least
one case, the electrician, left no alternative but to give a
specific response. Lyons was not simply attempting to
gauge union support. In persisting in finding out who
was the union representative among Respondent's em-
ployees, and in view of his failure to limit his questioning
on this subject to Hench and Winters, Lyons, albeit he
did not specifically name other employees, was in fact
asking which employee, including employees other than
Winters and Hench, was the union representative. In
other words, Lyons was asking a question which may or
may not have involved the union activities of Hench's
and Winters' fellow employees.
Unlike the situations in K & K Gourmet Meats, 245
NLRB 1331 (1979), enfd. in part 640 F.2d 460 (3d Cir.
1981), and Visador Co., 245 NLRB 508 (1979), Lyons did
not merely indicate that he would be willing to listen to
the employees' problems. After establishing that there
was an organizing drive, Lyons asked Hench and Win-
ters, "aren't you satisfied with what we give you?"
When he was told that Winters wanted more money and
Hench was interested in the Union's schooling and pen-
sion plan, Lyons asked if there were other grievances.
Respondent did not show that it had a past practice of
soliciting employee grievances or complaints. The equita-
ble distribution of scale jobs was said by Lyons to be a
scheduling problem. Impliedly, therefore, this was some-
thing management could correct. This was a meeting of
two employees with a management official, Lyons, at
which "gripes" were aired. As such it falls into the cate-
gory of conduct found to be unlawful in Reliance Electric
Co., 191 NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir.
1972).
Lyons' statement that Respondent would close its
doors if it was unionized was another violation of the
Act for this prediction was not based, and Hench and
Winters were not advised that it was based, on objective
facts which conveyed Lyons' belief as to demonstrable
probable consequences beyond Respondent's control
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). As al-
leged and as set forth above, Respondent violated Sec-
tion 8(a)(1) of the Act during this interrogation of Hench
and Winters by Lyons.3 4
As alleged in the complaint and, as Tuckey admitted,
he asked Helm on July 24 if he had heard anything about
the attempt of some of the employees to bring a union in.
Tuckey's use of the work "rumor" was meaningless.
Lyons had already verified with Hench and Winters that
a4 Lyons' statement to Hench and Winters that they did not have to
worry about any hard feelings and that they should go to the union meet-
ing must be viewed in the light (a) of Lyons' statement that he was not
pleased that Hench and Winers had been "sneaking behind his back," and
(b) of Lyons' persistence in finding out which of Respondent's employees
was the union representative. When viewed in this light Lyons' statement
was not really an assurance that no reprisals would be taken if they sup-
ported the Union.
1314
FRANK BLACK MECHANICAL SERVICES
indeed an organizing drive was under way. And Tuckey
had been informed of this. By posing the same question
to Tennis, which elicited an admission that the latter had
attended one or two union meetings, Tuckey again vio-
lated Section 8(a)(1) of the Act.
One day after the Union filed its petition for certifica-
tion and on the same day that Tuckey was shown the
Union's request for recognition based on a card majority,
Tuckey interrogated Baer about the latter's attempt to
organize "the boys to go Union." Tuckey managed to
get Baer to state "[w]ell, if this is true . . . what is your
feeling on it." This interrogation violated Section 8(a)(1)
of the Act.
Baer was laid off 6 days later. Hench, Winters, and
Reapsome were laid off 3 weeks after that. The com-
plaint alleges that these employees were discharged be-
cause of their union activity. Tuckey testified that the
four were laid off indefinitely due to a lack of work, and
it was a "pure, total coincidence" that these four were
the ones who were laid off "within a month of the filing
of the representation petition." The General Counsel
points out that Supervisor Herley admitted to Witmer on
September 24 that Respondent had gotten rid of these
four employees because they were troublemakers, they
were for the Union, and Respondent needed to protect
itself. Aside from this admission, the General Counsel as-
serts, the evidence establishes that the true motivation
for the layoffs was these employees' union activity in
that (1) Lyons acknowledged to Helm in September that
Respondent was receiving information on the employees'
union activities from an employee; (2) Respondent virtu-
ally never terminates employees that it is dissatisfied
with, but rather typically lays them off; (3) these four
layoffs were not consistent with company policy as es-
tablished in Respondent's personnel manual; (4) Tuckey's
testimony that, even if these four were the Company's
best employees, they would have been laid off is incredi-
ble and inconsistent with any reasonable business prac-
tice; (5) these four employees all worked at least 2 years
for Respondent and at that time Respondent seldom laid
off employees with this much seniority. [Of the four only
Baer had previously been indefinitely laid off (in 1974),
and this apparently was over some misunderstanding]; (6)
while there may have been some decrease in the amount
of work Respondent did in the summer of 1981 vis-a-vis
other recent years, the decrease was not nearly as dra-
matic as Respondent's exhibits depict, in view of the fact
that the exhibits did not reflect the severance of L. B.
Sheet Metal from Respondent in the spring of 1981-a
fact brought out on cross-examination; (7) even assuming
arguendo that the sudden loss of the Carlisle Tire and
Rubber Company job necessitated a brief temporary
layoff of Hench, Winters, and Reapsome until work as-
signments could be restructured, its Serves as absolutely
no explanation for why the three were indefinitely laid
off with no expectation of recall; and (8) the alleged
need to lay off these employees is directly rebutted by
the fact that Respondent hired three new employees into
high paid skilled positions during the involved period.
The Union makes some of these same arguments, and
contends that because Respondent's layoffs were typical-
ly permanent it stands to reason that Respondent would
carefully select those to be released since any other
course would be simply a slow form of economic sui-
cide. Additionally, the Union asserts that "the numerous
other violations of the Act . . . all support, circumstan-
tially, the existence of a committed effort by Respondent
to repel the Union challenge .... " (Union's Br. pp. 24
and 25.) Citing Wright Line, 251 NLRB 1083 (1980). Re-
spondent argues that it has demonstrated that there was a
legitimate business reason for these layoffs and the Gen-
eral Counsel has failed to meet his burden of showing
that the discharges were discriminatory.
Wright Line, supra, is not applicable here. The business
justifications cited by Respondent are nothing but pre-
texts. Viewed in isolation, the business decline and the
unilateral termination may have justified some layoffs.
But the persuasiveness of Respondent's contention is un-
dermined by prior and subsequent events, i.e., Respond-
ent's coercive interrogation of three of the four who
were laid off, Tuckey's knowing before the layoff that
the four supported the Union,3 5 the fact that Respondent
did hire additional personnel after these four were laid
off, apparently Respondent had other work to which
these four could have been assigned, the fact that even
though accused of misconduct Brenneman was sent to
the Bethlehem jobsite after these four were laid off and
before they were recalled in December 1981, and the
recall letters which gave a false reason for the recall.
Additionally, as pointed out by the General Counsel and
the Union, when one takes into consideration what
would be not only good but, indeed, reasonable business
practices for a company of this size, there is no explana-
tion for Respondent's conduct except for the union activ-
ity of the four employees. And, if this is not sufficient,
there remains Herley's undenied admission that these
four employees were gotten rid of because they were
"troublemakers." Finally, if there were sufficient business
justification at the time of the layoffs one must wonder
why Respondent and its attorney believed it was neces-
sary to suggest an inoperative post hoc rationalization at
the trial itself for the layoff of Baer. All things consid-
ered, the layoffs of Baer, Hench, Winters, and Reapsome
were in violation of Section 8(a)(l) and (3) of the Act.
The complaint alleges that in mid-August 1981, Re-
spondent violated the Act when it improved Helm's con-
ditions of employment by assigning him to a job near his
residence and by allowing him to report directly to the
jobsite, rather than reporting to Respondent's facility,
and, at the same time, requested Helm to attempt to dis-
courage other employees from supporting the Union. On
brief, the General Counsel argues that the clear implica-
tion was that Helm was receiving a favor and in return
he should speak negatively to other employees about the
Union. Citing Triana Industries, 245 NLRB 1258, 1263
as As noted supra, Baer's testimony that Tuckey asked him about his
union activities is credited. Tuckey's incredible testimony about whether
he knew Reapsome supported the Union before the layoff, when consid-
ered in the light of Lyons' concession that Respondent had a "fink,"
leads me to conclude that Tuckey did indeed know Reapsome supported
the Union before Reapsome was laid off. Additionally the fact that the
involved unit was small supports an inference of Respondent's knowledge
of Reapsome's union organizing activity. A to Z Portion Meats. 238
NLRB 643 (1978).
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1979), the General Counsel contends that where, as
here, an employer promises improved working condi-
tions in the context of a discussion in which the employ-
er asks the employee to dissuade others from supporting
the union, there can be little question but that the im-
provement was motivated by the union campaign and is
in violation of the Act. The Union, on brief, argues:
Helm correctly understood the sudden job assign-
ment as a quid pro quo; in return for the favorable
working conditions he was to talk to the rank and
file against the Union [Tr. 287]. Thus, Respondent
attempted to infringe not only on his freedom of
choice but on that of the remaining employees as
well. 36 [Emphasis added.]
Respondent contends that it has fully negated any pre-
sumption of illegality in that Helm's job assignment was
decided on long before the union election and it was in
complete and full accord with well-established company
policy to, whenever possible, assign employees to jobs
near their homes. While the job assignment alone might
not have been a violation of the Act, Tuckey's simultane-
ous request that Helm attempt to dissuade others from
supporting the Union, which was an attempt to coerce
Helm, made the assignment a violation of Section 8(a)(1)
and (3) of the Act. Although an employer may lawfully
ask employees to vote against a union, it is a violation of
Section 8(a)(1) for the employer to make the same re-
quest of other employees. Federal Stainless Sink Div. of
Unarco, 197 NLRB 489, 500 (1972). Respondent's at-
tempted coercion violated Section 8(a)(1) of the Act.
Paragraph 11 of the complaint alleges that Witmer's
August 10 raise violates the Act. On brief, the General
Counsel contends that Tuckey decided to reverse his re-
cently taken position and give Witmer the raise after
Lyons was informed during his July 24 interrogation of
Hench and Winters that wages were one of the major
"gripes." Assertedly, this is why Witmer received the
raise of 75 cents more an hour, a sum which Respondent
apparently had not previously given to any other em-
ployee. It is argued by the General Counsel that there is
no credible explanation for either the timing or the
amount of the raise. Tuckey's assertions to the contrary
are described by the General Counsel as being nothing
more than self-serving and unconvincing. The Union
argues that the raise was unlawful because its purpose
was reasonably calculated to have the effect of influenc-
ing the employee's freedom of choice. It is Respondent's
position, on brief, that "with the exception of the timing
of the effect of the actual increase, all discussions and de-
cisions with respect to the raise were prior to mid-July,
1981." Respondent's brief page 22. In other words, Re-
spondent contends that not only was the raise in con-
formance with company policy but that "the decision to
grant Witmer's increase . . . [was made] prior to the
company receiving actual notice of the union's demand
for recognition." Id. In view of Respondent's union
animus, the fact that it failed to demonstrate that a raise
"' Union's Br. p. 26. Helm did not believe that he had to speak nega-
tively about the Union to obtain the job near his residence. But, as indi-
cated above, he did believe the job was a "bribe."
of this size had previously been granted to any employ-
ee, Smith's inability to recall how Witmer improved his
performance within a few weeks subsequent to being
originally turned down, and the fact that no credible evi-
dence of record demonstrates that Witmer was advised
prior to July 24 that he had received the raise, it must be
concluded that the raise was granted for the purpose of
undermining union support, and, therefore, was in viola-
tion of Section 8(a)(3) of the Act.
It is alleged in the complaint that on the day of the
election, September 24, Respondent, through Herley, un-
lawfully interrogated Witmer concerning his union sym-
pathies. The General Counsel contends, on brief, that Su-
pervisor Herley's questioning of Witmer about what he
thought of the Union and Herley's statement "well you
must be for it, since you are going to be the observer for
the Union" constitute interrogation in violation of Sec-
tion 8(a)(1) of the Act. Respondent disagrees, arguing on
brief that if, in fact, the conversation took place, it was
general and innocuous, nothing more than idle chatter or
small talk between friends. The questioning occurred
during the business day, in a supervisor's office, just
before the election. Witmer's credited testimony that,
during the conversation, he explained to Herley that he
was going to be the observer so that a family man would
not have to run the risk of being laid off in retaliation,
and that Herley stated that the four above-described lay-
offs occurred because these employees were troublemak-
ers and supported the Union belie Respondent's asser-
tion. The questioning constituted interrogation in viola-
tion of Section 8(a)(l) of the Act.
Respondent committed a number of serious unfair
labor practices from the time the Union obtained a ma-
jority, requested recognition, and filed its petition on
July 30 requesting certification, up to the time of the
election.3 7 As noted supra, the Union filed objections to
the election citing acts of Respondent found above to be
unfair labor practices. It follows, therefore, that the ob-
jections have been established. Respondent's preelection
8(a)(1) and (3) violations of the Act substantially inter-
fered with the laboratory conditions under which elec-
tions for a collective-bargaining representative must be
conducted. In view of the fact that Respondent's acts
interfered with the employees' freedom of choice, the
election conducted in Case 4-RC-14796 on September
24 must be set aside.
Respondent's unfair labor practices did not stop with
the election for, the morning after, Respondent's vice
president Lyons, as alleged in the complaint, unlawfully
interrogated Nenninger and Tennis about their union
sympathies. When he asked them why they had voted
for the Union, neither had previously told management
how they voted. That same morning, Lyons told Helm
that Respondent knew Helm voted for the Union and it
37 While the July 1981 interrogations of Hench, Winters, Helm, and
Tennis occurred before recognition was requested and the petition was
filed, these violations occurred after a majority was obtained, and in any
event may be considered for their cumulative effect in determining
whether to set the election aside. United Oil Mfg. Co. v. NLRB, 672 F.2d
1208, 1212 (3d Cir. 1982), and NLRB v. Permanent Label Corp., 657 F.2d
512, 519 (3d Cir. 1981).
1316
FRANK BLACK MECHANICAL SERVICES
wanted know why. As alleged in the complaint, during
this exchange Lyons unlawfully interrogated Helm about
his union sympathies, and about the union activities of
Respondent's employees. Also, Lyons unlawfully created
an impression of surveillance by advising Helm that Re-
spondent was aware of the names of the employees who
voted for the Union.
Additionally, on the day after the election, Supervisor
Herley, as alleged in the complaint, unlawfully threat-
ened Witmer with discharge for his union activities, un-
lawfully created an impression of surveillance by telling
Witmer that Respondent had a list of the other men who
voted for the Union, and unlawfully threatened that the
men on the list would be discharged. Someone had told
Black to get rid of those who voted for the Union and
Herley told Witmer that Respondent had to look out for
itself, it could not afford to have prounion employees
around in case there was another election. Thirteen days
later Herley, as alleged in the complaint, unlawfully
threatened Witmer with discharge because of his union
activities when Herley gave Witmer the name of another
employer and informed Witmer that Black was putting
pressure on Herley to get rid of Witmer.
So, even subsequent to the election, Respondent vio-
lated Section 8(a)(1) of the Act with four of its employ-
ees in the manner described above. Its purpose was to
identify the remaining union supporters and, as indicated
by Herley, get rid of them before the next election, if
there was one. Subsequent unfair labor practices can be
considered in determining whether to impose a bargain-
ing order. Hedstrom Co. v. NLRB, 629 F.2d 305, 311 (3d
Cir. 1980).
Respondent admits the allegations in the complaint
that about July 28 the Union requested recognition and
Respondent refused to grant it. On brief, the General
Counsel contends that Respondent has violated Section
8(a)(5) of the Act in that Respondent refused to recog-
nize a union which had obtained signed authorization
cards from a majority of its employees in an appropriate
unit, and then embarked on a course of conduct designed
to undermine the Union's majority status and make a fair
election impossible. It is argued by the General Counsel
that the circumstances surrounding Respondent's unfair
labor practices indicate that they were likely to have
both a severe and long-term impact on unit employees;
that the fact that the president and vice president of the
Company, along with Herley, participated, indicates that
the violations were part of a general campaign to destroy
employee support for the Union; and that the unfair
labor practices involved include a number of those con-
sidered most serious by the Board, i.e., a threat to close,
the discharging of employees for their union activity,
and the unlawful solicitation of grievances and the con-
ferral of benefits.
The Union argues, on brief, that out of 30 eligible
voters, Respondent's conduct affected at least 9 employ-
ees, viz, Baer, Hench, Winters, and Reapsome, who were
discharged; Witmer, who was threatened with discharge;
Helm, who was both bribed and threatened; Nenninger
and Tennis, who were explicitly accused of being union
voters; and Richwine, who was unequivocally informed
that Respondent would retaliate against an employee by
discharging him for his union support. The Union also
argues that the central figures in Respondent's unlawful
conduct were two chief officers in the management hier-
archy, its president and prospective owner, and its vice
president. It contends the employer's conduct created a
psychological impact on all of the employees that is un-
likely to dissipate because Respondent's violations did
not cease with its victory in the election. Instead, Re-
spondent placed employees on notice that it knew who
the union supporters were, and they would not be
around if there was another election. Under the circum-
stances, the Union contends, the traditional remedies em-
ployed by the Board would not erase the effects of Re-
spondent's conduct and a subsequent, fair election would
be impossible. Instead, the Union argues that employee
sentiment evidenced in the authorization cards should be
given effect, and a bargaining order should be issued.
Respondent, on brief, argues that its acts, even if
wrongful, did not affect a significant percentage of its
employees, the effects of the acts can be dissipated by
the imposition of traditional Board remedies, and no
wrongful act was "taken" by a senior company official
during the "critical period."
The Supreme Court in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), affirmed the Board's authority to
issue a bargaining order where a union majority is estab-
lished by cards and the nature and extent of the employ-
er's unfair labor practices render unlikely a free choice
by the employees in a Board election (referred to as a
Gissel II order).
Respondent's violations were widespread. Their con-
tinuation, even after the election, was a statement by the
Company of its position with respect to any possible sub-
sequent election. The Respondent expected to win the
September 24 election and, by unlawful means, it did. By
its postelection conduct, Respondent was placing em-
ployees in this small unit on notice that those who sup-
ported the Union, including union election observer
Witmer, would not be around anymore. Respondent was
demonstrating that its proclivity to exceed the limits of
the law would continue as long as it believed that it was
being threatened with unionization. Its president and vice
president committed a number of unfair labor practices
before the election and its vice president continued his
unlawful conduct after the election in his attempt to un-
lawfully identify the union supporters. Additionally,
union observer Witmer was put on notice that the owner
of the Company was going to get rid of those who voted
for the Union and this was the reason Witmer was being
threatened with discharge. As pointed out by the Union,
a significant number of eligible voters were directly af-
fected by Respondent's unlawful conduct. Also, in a unit
as small as the one at hand, undoubtedly most, if not all,
of the employees were aware of Respondent's above-de-
scribed conduct. It is my opinion that, in the situation at
hand, merely ordering Respondent to refrain from future
violations would not erase the effects of Respondent's
unlawful acts from the memories of its employees. Based
on what I observed and heard at the hearing, it is my
opinion that not only is the possibility of a fair rerun
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election slight, it is almost, if not in fact, nonexistent.
NLRB v. Permanent Label Corp., supra.
By refusing to recognize and bargain with the Union,
as requested and instead engaging in the course of un-
lawful conduct which undermined the Union's majority
status and prevented the holding of a fair election, Re-
spondent violated Section 8(a)(5) of the Act. Trading
Port, Inc., 219 NLRB 298 (1975). Its bargaining obliga-
tion arose on July 28, 1981, the date of the Union's
demand, inasmuch as the Union by then had achieved
majority status and Respondent commenced its clear
course of unlawful conduct even before that date.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the following conduct Respondent
committed unfair labor practices contrary to the provi-
sions of Section 8(a)(l) of the Act:
(a) On more than one occasion, interrogating employ-
ees about their union activities and sympathies.
(b) On more than one occasion, interrogating employ-
ees about the union activities of Respondent's employees.
(c) Requesting an employee to attempt to discourage
other employees from supporting the Union.
(d) Soliciting employee complaints and grievances and
thereby impliedly promising its employees increased ben-
efits and improved terms and conditions of employment.
(e) Threatening employees that Respondent would
close its doors if the employees selected the Union as
their collective-bargaining agent.
(f) Interrogating employees regarding the union sym-
pathies of their fellow employees.
(g) On more than one occasion, creating an impression
of surveillance among Respondent's employees that their
union activities were under surveillance by informing
employees that Respondent was aware of the names of
the employees who voted for the Union.
(h) On more than one occasion, threatening an em-
ployee with discharge because of his union activities.
(i) Threatening its employees with discharge because
of their union activities.
4. By engaging in the following conduct Respondent
committed unfair labor practices contrary to the provi-
sions of Section 8(a)(l) and (3) of the Act:
(a) Increasing the benefits of its employee Leonard
Witmer by granting him a wage increase to discourage
interest in and support of the Union.
(b) Improving the conditions of employment for its
employee David Helm by assigning him a job near his
residence while, at the same time, asking him to dissuade
his fellow employees from supporting the Union.
(c) Laying off Charles Baer on August 6, 1981, and
Kirk Hench, Jed Reapsome, and Davis Winters on
August 28, 1981, because of their union activity and to
discourage employees' interest and membership in the
Union.
5. By refusing to recognize and bargain with the
Union as representative of a majority of the employees as
requested on July 28, 1981, but instead engaging in the
commission of those preelection practices described
above, Respondent undermined the majority in the unit
of employees that the Union represented, and made im-
possible the holding of a fair representation election. Re-
spondent's refusal to bargain and embarking upon this
course of misconduct constituted an unfair labor practice
in violation of Section 8(a)(5) of the Act.
6. The described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
7. Respondent's preelection unfair labor practices nulli-
fied the results of the September 24, 1981 representation
election, and these unfair labor practices cannot be cor-
rected by conventional remedies, including a rerun elec-
tion, in view of the fact that, in the situation at hand, it is
not possible to have a fair rerun election. Accordingly, it
is appropriate and necessary that Respondent be ordered
to bargain with the Union as of July 28, 1981, when the
Union attained a majority and requested the Respondent
to recognize it.
THE REMEDY
Having found that Respondent has engaged in a
number of unfair labor practices and that the objection
to the election should be sustained, I shall recommend
that Respondent be ordered to cease and desist from
committing these unfair labor practices and take certain
affirmative action designed to effectuate the policies of
the Act.
It will be recommended that Respondent give backpay
to Charles Baer, Kirk Hench, Jed Reapsome, and Davis
Winters for their unlawful layoffs which commenced on
above-specified dates in August 1981, and continued until
they were recalled in December 1981, said backpay to be
computed on the basis set forth in F W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977).38
It shall also be recommended that Respondent recog-
nize and bargain with the Union on request and embody
any understanding reached into a signed agreement.
In view of the degree and pervasiveness of the unfair
labor practices, a broad cease-and-desist order shall be
recommended precluding Respondent from "in any
manner" interfering with, coercing, or restraining em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3 9
ORDER
The Respondent, Frank Black Mechanical Services, of
Carlisle, Pennsylvania, its officers, agents, successors, and
assigns, shall
38 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
39 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1318
FRANK BLACK MECHANICAL SERVICES
1. Cease and desist from
(a) Coercively interrogating employees about their
union activities and sympathies.
(b) Coercively interrogating employees about the
union activities and sympathies of their fellow employ-
ees.
(c) Coercively attempting to induce an employee to at-
tempt to discourage other employees from supporting
the Union.
(d) Soliciting employee complaints and greivances and
thereby impliedly promising its employees increased ben-
efits and improved terms and conditions of employment.
(e) Threatening employees that Respondent would
close its doors if the employees selected the Union as
their collective-bargaining agent.
(f) Creating an impression of surveillance among Re-
spondent's employees that their union activities were
under surveillance by informing employees that Re-
spondent was aware of the names of the employees who
voted for the Union.
(g) Threatening its employees with discharge because
of their union activity.
(h) Granting raises or improving the conditions of em-
ployment of its employees to dissuade them from sup-
porting the Union.
(i) Laying off employees because of their union activi-
ty and to discourage employees' interest and membership
in the Union.
(j) Refusing, on request, to bargain with the Union as
the exclusive bargaining representative of the unit of Re-
spondent's employees described in footnote 3 of the deci-
sion.
(k) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act.40
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Harrisburg
and Central Pennsylvania Building and Construction
40 Respondent's unfair labor practices in this matter are so egregious
and demonstrate such proclivity to violate the Act that broad injunctive
relief is appropriate. See Hickmorr Foods, 242 NLRB 1357 (1979).
Trades Council as the exclusive collective-bargaining
representative of all employees in the above-described
unit with respect to wages, hours, and other terms and
conditions of employment and, if agreement is reached,
embody such agreement in a written signed contract.
(b) Make employee Charles Baer whole, in the manner
set forth in the section of the decision entitled "The
Remedy," for any loss incurred as a result of his unlaw-
ful layoff from August 6, 1981, to his recall in December
1981, and in the same manner make employees Kirk
Hench, Jed Reapsome, and Davis Winters whole for the
loss of earnings incurred by each as a result of their un-
lawful layoffs from August 28, 1981, to the time they
were recalled in December 1981.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Carlisle, Pennsylvania, facility copies of the
attached notice marked "Appendix." 4 ' Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the election conducted in
Case 4-RC-14796 be set aside.
4 t If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1319