Frey Mechanical Contractors

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 348 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frey Mechanical Contractors, Inc. and Plumbers
Local Union #68, United Association of Jour-
neymen and Apprentices of Plumbing and Pipe-
fitting Industry of the United States and
Canada, AFL-CIO. Cases 23-CA-9084, 23-
CA-9102, 23-CA-9110, and 23-CA-9133
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 4 November 1983 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed a brief in support
of the administrative law judge's recommended de-
cision and order, and the Charging Party filed an
answering brief in opposition to the Respondent's
exceptions.
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,2
and conclusions 3 and to adopt the recommended
Order as modified.4
' The Respondent's motion that the Board remand this case for rehear-
ing so that the Respondent may present additional evidence as to the
business purpose of the camera used to photograph the uncoupled pipe
involved in Olson's discharge is hereby denied. The Respondent had
ample opportunity to present evidence on this issue at the hearing and in
fact elicited such testimony from all but one of its witnesses. Additional
evidence on this point would not change the outcome of this case.
We agree with the Respondent that the record shows that the camera
was purchased on 27 September 1982 rather than the day after the elec-
tion, as found by the judge. Our correction of this finding does not affect
the result we reach.
I The Respondent has excepted to some of the judge's credibility find-
ings. 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 correct the judge's apparently inadvertent error in finding that
Daniel was discharged on 16 November 1982. The preponderance of evi-
dence, including R. Exh. 8, establishes that Daniel was discharged on 12
November, although he was not informed of this until 16 November.
3 In agreeing with the judge that the Respondent had knowledge of its
discharged employees' union activity and sympathies we do not rely on
the judge's citation and discussion of Wright Plastic Products, 247 NLRB
635 (1980).
4 We amend that portion of the judge's proposed remedy wherein the
Respondent is required to offer immediate and full reinstatement to the
six discriminatees. The record indicates neither when the Respondent's
Holiday Inn project actually terminated, nor what the Respondent's
hiring or transfer practice was with regard to subsequent projects. It is
therefore uncertain whether these employees would have been terminated
in the normal course of business sometime after their discharge. Accord-
ingly, if in compliance proceedings it is determined that the employees
would have been transferred to another of the Respondent's worksites on
completion of the Holiday Inn project, the Respondent shall offer them
immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and
270 NLRB No. 63
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Frey Mechanical Contractors, Inc.,
Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraphs 2(a)
and (b).
"(a) In the event the Respondent's operations at
the Holiday Inn project are still in progress or in
the event that Kurt Coppock, Donald Olson, Ken-
neth Slicker, William Bruce, Charles Hunsucker, or
Stanford Daniel would have been transferred to an-
other project upon its completion, offer them im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges and make
them whole for any loss of pay that they may have
suffered by reason of the discrimination against
them in the manner and to the extent set forth in
'The Remedy' section of the administrative law
judge's decision. If the above-named employees
would have been terminated in the normal course
of business, the Respondent shall make them whole
for any loss of pay they may have suffered by
reason of their discharges and assure them of their
future eligibility for employment by the Respond-
ent in the manner set forth in footnote 4 of this De-
cision and Order.
"(b) Post at its place of business in Houston,
Texas, and if it is still continuing to do work at its
Holiday Inn jobsite, to also post there, copies of
the attached notice marked 'Appendix.' Copies of
the notice, on forms provided by the Regional Di-
rector for Region 23, after being signed by the Re-
spondent's authorized representative, shall be
privileges, and make them whole for any loss of earnings in the manner
set forth in "The Remedy" section of the judge's decision.
In the event the Respondent establishes that the employees would have
been terminated in the normal course of business, the Respondent need
not offer them reinstatement but shall make them whole for any loss of
earnings they have suffered by reason of the discrimination against them
from the date of their discharges to the date they would have been termi-
nated normally. The Respondent shall also send letters to them stating
that, notwithstanding their discharges, they will be considered eligible for
employment on a nondiscriminatory basis at any of the Respondent's
future projects, should they choose to apply for employment. See Al
Monzo Construction Co., 198 NLRB 1212, 1219 (1972), cited in Brown &
Lambrecht Earth Movers, 267 NLRB 186 (1983); State Wide Painting &
Decorating Co., 174 NLRB 5 (1969).
We also find merit in the Respondent's exception to that portion of the
judge's proposed remedy requiring posting of a notice at its El Paso,
Texas office. We shall order the Respondent to post copies of the notice
at its Houston offices and at the Holiday Inn if the project is continuing,
and to mail copies of the notice to all persons employed by it at the Holi-
day Inn project, using their current mailing addresses as approved by the
Regional Director for Region 23.
348
FREY MECHANICAL CONTRACTORS
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material. In addition, Re-
spondent shall mail copies of that notice to all per-
sons employed by it on its Holiday Inn job, using
their current mailing addresses as approved by the
Regional Director for Region 23."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraph.
"(c) Expunge from its files any reference to the
unlawful discharge of the above-stated employees
and notify them, in writing, that this has been done
and that evidence of this unlawful conduct will not
be used as a basis for future personnel actions
against them."
3. 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate our employees con-
cerning their and other employees' support for the
Union.
WE WILL NOT threaten employees with dis-
charge if they choose the Union to represent them.
WE WILL NOT discourage membership in Plumb-
ers Local Union #68, United Association of Jour-
neymen and Apprentices of Plumbing and Pipefit-
ting Industry of the United States and Canada,
AFL-CIO, or any other labor organization, by dis-
criminating against our employees in regard to
their hire or tenure of employment or any other
terms or conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you under the Act.
WE WILL offer to Kurt Coppock, Donald Olson,
Kenneth Slicker, William Bruce, Charles Hun-
sucker, and Stanford Daniel immediate and full re-
instatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions,
without loss of seniority or other rights and privi-
leges, if we have not completed operations at the
Holiday Inn jobsite or if they would have been
transferred to another job upon its completion or
otherwise. WE WILL assure the above-named em-
ployees that they are eligible for future employ-
ment by us.
WE WILL expunge from our files any references
to the unlawful discharges of the above-stated em-
ployees and notify them, in writing, that this has
been done and that evidence of this unlawful con-
duct will not be used as a basis for future personnel
actions against them.
FREY MECHANICAL CONTRACTORS,
INC.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Based on charges filed on October 4, 12, 13, 19, and 26,
and November 18, 1982, by Plumbers Local Union #68,
United Association of Journeymen and Apprentices of
Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO (the Union), the Regional Direc-
tor issued his second amended consolidated complaint on
March 14, 1983, alleging that Frey Mechanical Contrac-
tors, Inc. (the Respondent) by its actions before and after
a union election and by its discipline and discharge of
employees Kurt Coppock, Donald Olson, Kenneth Slick-
er, William Bruce, Glen Boatwright, Charles Hunsucker,
and Stanford Daniel has violated Section 8(a)(1) and (3)
of the Act. The case was heard before me on May 4 and
5, 1983, in Houston, Texas. Briefs were received from all
parties.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in plumbing and heating
contracting, with its principal place of business in El
Paso, Texas. In its answer the Respondent admits that it
is an employer within the meaning of the Act and that it
is engaged in a requisite amount of interstate commerce
and I find that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
Plumbers Local Union #68, United Association of
Journeymen and Apprentices of Plumbing and Pipefit-
ting Industry of the United States and Canada, AFL-
CIO, is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a plumbing and heating contractor
doing business in and around El Paso, Texas. It had been
doing business in the Houston area for 14 months prior
to this hearing and had been working on one job located
at the Holiday Inn, 2222 West Loop South. The prefabri-
cation work for the job began in March 1982, with the
jobsite work beginning in June 1982. The Respondent
employed Kurt Coppock, Donald Olson, Kenneth Slick-
er, William Bruce, Glenn Boatwright, Charles Hun-
sucker, and Stanford Daniel as plumbers and plumbers
helpers at this jobsite. Olson and Coppock were hired in
March as journeymen plumbers. Olson was the first
plumber hired by the Respondent for the project. Olson,
Coppock, and about six or seven other plumbers and
plumbers helpers first worked at the Respondent's shops,
about 15 miles from the jobsite, preparing materials for
the job until June when the Respondent shifted the main
portion of its operations to its jobsite and its plumbers
and plumbers helpers moved to that location.
Slicker and Bruce were hired in August as journeymen
plumbers and worked only at the actual jobsite. In July
and August the Respondent hired Boatwright, Hun-
sucker, and Daniel as plumbers helpers.
In late July and early August the Union conducted an
organizational campaign among the plumbers and plumb-
ers helpers employed by the Respondent at its Holiday
Inn jobsite. Olson and Coppock were activists in this
campaign and were responsible for passing out union au-
thorization cards to fellow employees. Together they ob-
tained approximately 10 or 11 signed authorization cards
and on August 27, 1982, the Union filed a petition for a
representation election with the Board. The Respondent
received a copy of the petition on August 30, 1982.
On Thursday, September 23, at 7 a.m., an election was
held. The names of 18 eligible voters appeared on the
"Excelsior" list and 17 of these employees voted. The
Union received nine votes and the Respondent received
six votes. Two of the Respondent's supervisors Michael
Callan and Louis Pierce voted challenged ballots which
were not counted and were not determinative of the re-
sults of the election. Donald Olson acted as the Union's
observer at the election.
At the time of receiving the petition for representation
election, the Employer began, with advice of legal coun-
sel, to conduct an election campaign prior to the election
of September 23. During this campaign, various speeches
were delivered to the employees and various handouts
were given to the employees.
After the election, the Union was certified by the
Board as the bargaining representative for the employees
of the Respondent at the Holiday Inn jobsite. The Union
and the Respondent became involved in negotiations in
the fall of 1982 and such negotiations were ongoing at
the time of the hearing.
B. Allegations Relating to Statements and Alleged
Interrogations of Employees During the Respondent's
Antiunion Campaign
1. Alleged statements by Supervisor Michael Callan
Kurt Coppock and Don Olson passed out authoriza-
tion cards during the Union's campaign and Coppock
also signed a union authorization card himself on August
26. Coppock testified that on August 23 the Respond-
ent's supervisor Michael Callan asked him if anyone from
the Union had been on the jobsite talking with Coppock
or "anyone else." Coppock responded, "no." Callan then
told Coppock that "if the Union had been down there,
there would be trouble." Coppock testified that Callan
also stated, "if the Union was to come on to that job, we
would more than likely be looking for jobs elsewhere."
In his testimony Callan admitted asking Coppock, as well
as all other employees, if anybody had been on the job-
site connected with the Union asking about union activi-
ties. However, his testimony is that he told Coppock that
if the Union came on the job that he would start looking
for another job himself. He further testified that he ex-
plained to Coppock that what he meant by this statement
was that he did not intend to work for a union company.
Richard Baker testified that he was hired by the Re-
spondent as a plumber's helper in June and that he
signed a union authorization card on August 26. Baker
also testified that about September I Callan came up to
him in the basement asking if he had "been talking to
any members of the Union," or if he had been contacted
by any union at all. Baker responded, "no."
Kenneth Slicker testified that he was hired by the Re-
spondent on August 27 as a plumber and that he signed a
union authorization card on August 31. Slicker testified
that on September 1, Callan asked if he had "been ap-
proached by the Union?" Slicker responded, "no."
William Bruce testified that he was hired by the Re-
spondent as a journeyman plumber about August 23, and
that he had signed an authorization card on August 26.
Bruce testified that on September I Callan came to him
and, "wanted to know did I hear anything about the
Union . . . did I overhear anybody talking about bring-
ing the Union on to the job," and "he wanted to know
what did I think about the Union." Bruce testified he re-
sponded that he thought the Union was "mostly good."
Callan testified that he engaged in these interrogations
"on his own without the knowledge of anyone else,"
presumably other members of management. Accordingly,
though the Respondent was being advised by counsel on
how to conduct an antiunion campaign, it must be con-
cluded that at least at the time of the interrogations by
Callan, he had not been so advised. He further testified
that at the time of the interrogations all he knew about
the campaign was from a flyer he had received upon re-
turning from vacation. Based on the demeanor of the
witnesses presented by the General Counsel in this
regard, as well as that of witness Callan, and on the mu-
350
FREY MECHANICAL CONTRACTORS
tually corroborative testimony of the witnesses for the
General Counsel, I credit the testimony of employees
Coppock, Baker, Slicker, and Bruce in the instances in
which it conflicts with that of Callan.
2. Alleged statements by Supervisor Unrein
Employee Slicker testified that before he was hired on
August 27 the Respondent's job supervisor Fred Unrein
asked him at a job interview how he felt about the Union
or if he had "ever had any dealings with the Union."
Slicker told Unrein that he was "indifferent about it."
Slicker also testified that he signed the union authoriza-
tion card on August 31, and that on the same day Unrein
asked Slicker if he had been approached by the Union.
Slicker responded, "no." Based on Slicker's demeanor
and no direct denial by Unrein of this testimony, I credit
Slicker's testimony.
Unrein admitted that on August 25 he asked most of
the men on the jobsite if "somebody from the Union had
consulted them on job time?" On this point the witness
further testified, "I asked if there was a Union represent-
ative who had come down to talk to them. I wanted to
know if there was a man on the job from the Union." In
response to further questioning inquiring if that was all
he said to the employees, Unrein replied, "sure." In re-
sponse to his inquiry, Unrein stated that employee Rich-
ard Baker replied, "I know something about it, but I'm
not going to say anything." Unrein also admitted that he
asked employee Bill Bruce how he felt about the Union
and received a reply to the effect that Bruce used to be a
member of the Union "about 5 years previous to that,"
but he got hungry so he had to get on the street and get
a job.
Unrein further testified that his interrogations of em-
ployees was to determine if a union representative was
on the jobsite during working time as he was concerned
about the disruption of work. However, this reason for
the interrogation was not implicit in the questioning nor
was it communicated to the employees.
3. Alleged statements by Supervisor Bill Littleton
After receiving notice of the representation petition
and arriving at a consent stipulation as to scope, location,
and site of the election and unit, the Company launched
into its preelection campaign. Bill Littleton, the Compa-
ny's Houston manager, was individually responsible for
delivering campaign speeches prepared by the Compa-
ny's attorney prior to the election. These campaign
speeches were drafted with the purpose of informing and
convincing the involved employees to vote against the
Union at the upcoming election. With respect to the
campaign, employee Coppock testified that about a week
before the election he was working in the basement with
employees Baker, Daniel, and Pierce when Littleton ap-
proached the group and passed around some antiunion
propaganda. Coppock testified that Littleton told these
employees that "if the Union were to come in, we would
be out on the streets with the rest of the deadbeats."
Daniel corroborated Coppock's testimony stating that
before the election Littleton came up to him, Coppock,
and Baker in the basement and gave them sheets of paper
describing "bad things about the Union, their expenses
and things like that," and asked the employees in the
group if they were going Union or not. Daniel respond-
ed that he was not sure. He testified that Littleton also
told this group that the Respondent was not "going to
tolerate anybody on the job that was going union."
Baker testified that he was working in the basement ap-
proximately a week before the election with Daniel and
Coppock when Littleton approached the group and gave
a "talking." Littleton then stated to Baker, "I want to
know how you feel about the Union?" Baker testified
that he shook his head no, then Littleton responded,
"Good, I want to talk to you all about this paper here,
you know, about the union guys."
Coppock testified that on the Tuesday before the elec-
tion he attended a safety meeting conducted by Littleton
with all the other employees on the jobsite. According
to Coppock, Littleton stated at this meeting that "Frey
Mechanical did not need a union," and that if there were
a union the employees would no longer be able to talk
with Littleton or Unrein. Coppock also testified that
Littleton stated that:
[H]e knew that there was probably some union
cards signed, that there was union infiltration-that
he hoped there wasn't-that he would find out who
they were, that the union people had been coming
down to apply for work and that . .. . Frey Me-
chanical did not need them people ... he asked us
to vote "no," he said he was probably saying some
things that he shouldn't be.
Olson also attended a preelection safety meeting and
testified about it as follows:
And then he (Littleton] . . . said, anybody who
would vote Union would be fired and he said I
want you to know that anybody who votes Union
will be fired. If I knew the instigator who was
behind all this, I would fire him right now. He also
said, you know, he said we have been getting a lot
of job applicants and I know the Union is sending
them in. We don't really need deadbeats . . . at
Frey Mechanical. We don't need any of these dead-
beats down here; they should be out on the street
pounding the bricks like the others.
After this meeting, Olson testified that Littleton came
up to him and asked him how he was going to vote.
Olson also testified that he had attended a preelection
safety meeting and heard Littleton say that "he knew
that there were union instigators on the job," and "if he
knew who they were he would fire them and throw
them off the job ... and if we wanted to join the Union
we could join the rest of the deadeats out on the bricks."
Employee Bruce was also present at a preelection
safety meeting and testified that Littleton read from a
statement saying that:
Frey did not want the Union on the job . . . and if
there was anybody working for Frey that felt they
wanted to work for the Union they ought to go out
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and find a job at a union shop and . . . even if the
Union won the election, Frey did not have to bar-
gain with anybody.
Bruce also testified that Littleton said "he wished he
knew who these instigators were on the job so he could
go ahead and fire them. If they wanted to picket they
would be outside the fence picketing with the rest of
those deadbeats out there." Littleton also admitted that
he said to Donald Olson on September 23, after learning
that Olson was the union observer, "he had fed him and
his family for 6 months and Olson was the one that had
brought in the Union."
Baker testified that immediately after Littleton saw
Olson at the polls on the morning of the election, he saw
Littleton walk up to Unrein and put his hand on Unrein's
shoulder. Baker said he then saw Littleton point at Olson
and say, "There's that son-of-a-bitch that started all the
trouble." Slicker testified similarly.
Littleton admitted stating to a group of employees on
September 20 that if the Union won the election the
"employees would possibly be out with the other dead-
beats." Littleton testified on this point that he was "re-
ferring to the strike that was called by the Union," and
he had been reading from a prepared speech when he
made this statement.
Littleton admitted that he told a Board agent during
an investigation of this case that on the day of the elec-
tion he commented to Unrein about Olson and stated,
"there is the instigator of the whole matter right there."
Littleton also admitted that he told a Board agent that he
may have diverted from the speech on September 20 and
made other comments. He also admitted asking employee
Olson, on September 22, how he was going to vote at
the Board election the next day. Littleton denied all the
statements except the ones he specifically admitted or
clarified.
Based on the demeanor and testimony of the witnesses,
primarily of Manager Littleton, I credit the testimony of
the witnesses presented by the General Counsel with
regard to Littleton's statements during the campaign. For
reasons stated at a later point in this decision with re-
spect to the discussion of a camera purchased by the
Company about the time of the election and testimony of
Littleton and with respect to work rules being explained
to employees at the time of their employment, I do not
find Littleton's testimony to be as credible as those of the
witnesses presented by the General Counsel.
There is no question that the record supports the con-
clusion that the Respondent harbored union animus. This
animus was made clear to the employees by the interro-
gation of all of them by Supervisors Callan and Unrein
and in the speeches and statements made to groups of
employees and individual employees as set out above by
Unrein and Littleton. Although the speeches given by
Littleton with their references to consequences of strikes,
what can happen during the course of bargaining and ne-
gotiations and references as to who would still be the
boss even if the Union was voted in, may be lawful. I
find that the interrogations by Callan and Unrein to be
coercive and a violation of Section 8(aXl) of the Act.
I find that Littleton's questioning of Olson in regard to
his union sympathies, statements to employees that he
knew that there were union instigators on the job and
that he would fire them if he knew who they were and
later pointing out Olson in the hearing of other employ-
ees as the instigator of the union activity likewise to be
threatening and coercive and in violation of Section
8(a)(l) of the Act.
C. Discharge and Discipline of Employees Following
the Election
At the election 17 employees voted, 9 voted for the
Union, while 6 voted against it and 2 supervisors voted
challenged ballots. Of the nine employees shown to be in
support of the Union, seven were discharged within 2
months after the election. The General Counsel contends
that these discharges were all motivated by the Respond-
ent's union animus and were clearly an attempt to rid
itself of union adherents. The reasons advanced by the
Respondent for the employees' termination are urged by
the General Counsel to be merely pretextual. The con-
trolling Board decision on burden of proof in this pro-
ceesing is Wright Line, 251 NLRB 150 (1980). In Wright
Line, the Board established the following causation test
on all cases alleging violations of Section 8(a)(l) and (3)
turning on employer motivation. It requires that the
General Counsel make a prima facie showing sufficient
to support the inference that protected conduct was a
motivating factor in the employer's decision. Once this is
established, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of protected conduct.
Looking first at the burden of the General Counsel, I
find that the record overwhelmingly establishes that the
Respondent harbored union animus. The various state-
ments made by the Respondent's supervisors, discussed
in the previous section of this decision, likewise, make it
clear that the Respondent desired to rid itself of those
employees who were supporters of the Union. I find it
significant that in the several months prior to the elec-
tion, the Respondent had not seen fit to terminate any
but one of its employees. The one employee terminated
prior to the election was terminated within a few days of
the election. Shortly after the election, the Respondent
began terminating employees on a regular basis, all of
whom happened to be union supporters. Based on the
timing of the discharges and the Respondent's union
animus, I agree with the General Counsel that he has
made a prima facie showing that the discharges of Cop-
pock, Olson, Slicker, Bruce, Hunsucker, and Daniel con-
stitute a violation of the Act. I also find that the General
Counsel has met his burden of proof showing that the
Respondent had knowledge of these individuals union
activities. In Wright Plastic Products, 247 NLRB 635
(1980), the Board held, through adoption of the adminis-
trative law judge's decision, the signing of union authori-
zation cards was a sufficient act to infer knowledge of
union activity to a respondent and that the lack of specif-
ic evidence of the Respondent's knowledge of individual
employees and the difference in union activity between
individual employees is immaterial when it is the general
352
FREY MECHANICAL CONTRACTORS
desire of the respondent to frustrate and dissipate em-
ployees' support of the union. I find that to be the case
in this proceeding.
However, the General Counsel presented further evi-
dence of the Respondent's knowledge. All of the individ-
uals charged testified that they signed union authoriza-
tion cards. As Olson was the union election observer, the
Respondent was certainly aware of his support of the
Union. Slicker, Bruce, Boatwright, and Daniel all testi-
fied that they wore union stickers on their hats beginning
about a week after the election. Supervisor Callan admit-
ted that he had noticed some of the employees wearing
such stickers. Employee Coppock was discharged before
the practice of wearing stickers began, but was a close
associate of election observer Olson. Coppock also
helped in passing out union authorization cards. Hun-
sucker displayed a union sticker on his truck and fre-
quently rode to work and ate lunch with Boatwright and
Daniel who did wear union stickers. As found before,
Bruce was questioned before the election by Littleton
and in response to a question as to what his feelings were
about the Union, stated that it was "mostly good." It is
also significant that none of the six employees who voted
against the Union were disciplined or terminated after
the election. It should be noted that the Respondent,
through the actions of its supervisor and general manag-
er, conducted an interrogation of the employees before
the election and had a fair opportunity to draw conclu-
sions as to its employees support or lack thereof for the
Union, if by nothing else observing the demeanor of the
employees while interrogating them. Therefore, for the
reasons stated, I find that the Respondent had knowledge
of the protected activity of the involved discharged em-
ployees.
The Respondent asserts that it had legitimate business
reasons for discharging each of the involved employees.
I find that these reasons are pretextual. Prior to the
union election, the Respondent had no written rules gov-
erning behavior of its employees. However, within a
week or two after the election such written rules were
distributed to the employees and formed a basis for the
discharge of some of them. The Respondent's general
manager Littleton testified that he had started work on
these rules some months before the election, an assertion,
which based on his demeanor during his testimony con-
cerning this, I discredit. One of the discharged employ-
ees, Olson, was terminated for "sabotage" of a water
pipe he installed on the jobsite. The Respondent intro-
duced photographs of the broken pipe at the hearing. In
this regard, the Respondent's manager Littleton testified
that the camera with which the picture was taken was
purchased in August for replacement of one which had
been provided by a previous supervisor. However, at my
request, the sales slip for the purchase of the camera was
produced and showed that the camera was purchased the
day after the union election. At the time the photograph
of the water pipe was taken, Boatwright testified that he
was present and saw Unrein take the photograph and
heard Foreman Pierce say that the camera had been
bought just for this reason. Based on all the testimony
surrounding the purchasing use of the camera, I find that
it was purchased just as another tool, like the rules, to
help the Respondent rid itself of those employees who
supported the Union.
As further evidence of the Respondent's intention to
get rid of union adherents, Supervisor Unrein began
keeping a daily diary of employees' activities after the
election. The diary was later used to support the dis-
charge of some of the involved employees.
It is clear to me from all the evidence that the Re-
spondent began immediately after the election to find
and document any reason it could to discharge those em-
ployees supporting the Union. It is in this context that
the reasons given by the Respondent for the discharge of
these employees must be viewed.
1. The discharge of Kurt Coppock
The Respondent's reason for the discharge of employ-
ee Coppock was incompetent workmanship on the job.
Unrein testified that he terminated Coppock for his fail-
ure to properly secure anchors which were holding a 12-
inch cast iron pipe. Unrein was informed by Coppock's
fellow employees, Baker and Shultz, that Coppock was
the employee who had set the faulty anchor. Coppock
admitted to having set the anchor and at that point
Unrein terminated him. At the time of Coppock's termi-
nation, Unrein also told him he was being fired for "poor
work attitude." Two days after Coppock's termination
employee Baker testified that an anchor he put in had
fallen out and that Supervisor Pierce, who had seen
Baker putting the anchor back in, told Baker, "Richard,
you're going to have to do better than that." Baker re-
plied, "What are you all going to do, you going to fire
me too?" In response, Pierce said, "No, Kurt did not get
fired for the anchor falling out. It was his attitude. He
had a bad attitude." At the hearing and in further sup-
port of its reasons for firing Coppock, the Respondent
advanced some other examples of what it considered
poor workmanship on the part of Coppock, all of which
occurred prior to the election. I find it significant that
these other instances, which appear to be just as serious
as the anchor incident, did not result in any warning to
Coppock and certainly not in his termination. I find that
the reasons advanced by the Respondent for the dis-
charge of Coppock are pretextual and its real motive was
to eliminate a union adherent.
2. The discipline and discharge of Donald Olson
Employee Olson was given a written warning on Oc-
tober 6, 1982, for talking with other employees about
their wage rates. Olson admitted that he had engaged in
such conduct on several occasions both before and after
the election, but had not, beforehand, been warned not
to engage in such conduct. Supervisor Unrein testified
that various employees including Rick Lee had come to
him complaining that Olson was questioning them about
their wages. Unrein also testified that although there was
no written policy he and Littleton for many years had
always operated under the policy that, "you just don't
stir up trouble by asking people what they make and
how much they make and trying to stir something up."
Littleton testified that when he hired Olson he informed
him that his wage rate was his business and nobody
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
else's. However, at another point in the record, Littleton
admitted that he had never told Olson that he would be
disciplined or receive warnings if he discussed wage
rates with other employees. Littleton also testified that it
is not standard company procedure to issue written
warnings to employees but that the written warning was
issued to Olson after Littleton was advised by counsel to
issue such a warning for documentation.
At the hearing, Olson complained of an instance short-
ly thereafter where he was required to work on a scaf-
fold without a helper. However, the General Counsel
did not urge this point on brief and it is considered
waived.
On October 8, Olson was transferred from the Holiday
Inn jobsite to the Respondent's prefabrication shop. The
Respondent's personnel testified that the assignment of
Olson to the shop was a temporary assignment estimated
to last approximately a week. Olson's complaint about
being transferred centers around the location of the shop
in Houston. Because of distance he would have difficulty
making a evening bible study in which he participated.
On this point, I would find it difficult to determine
whether or not the transfer constituted harassment or
was in fact just a temporary assignment because on Oc-
tober 13 Olson was accused of sabotaging the job by fail-
ing to glue a pipe joint properly and was fired 2 days
later. Olson did install the pipe about a week before it
broke and it is Olson's testimony that he primed and
glued all the joints on the pipe properly. He also testified
that water pressure had been on the line for 4 or 5 days
before its breaking. He further testified that he had been
instructed by the foreman to install the pipe using the
wire hangers, which Robert Robertson of the Union's
apprentice school testified would make the pipe unstable
and easily broken.
In any event, as noted by the Respondent on brief,
considerable testimony was offered as to the cause of the
pipe breaking. Further, as noted on brief, the cause of
the break is not known conclusively. What is unusual to
me about this situation is the fact that Olson, one of the
first employees hired on the jobsite, would be terminated
for something which actually did not cause any damage
to the jobsite and for which the cause is so open for ar-
gument. At the hearing, the Respondent produced four
more instances of alleged poor workmanship for which
the Respondent stated that Olson had been reprimanded.
However, there are no written warnings that were given
to Olson with respect to these instances nor was he in-
formed that he was subject to termination for the in-
stances. Olson denied that he had been reprimanded for
these instances. In all of the circumstances, having
weighed all the evidence and reviewed the record, and
upon the demeanor of the witnesses testifying about the
circumstances surrounding Olson's discharge, I find that
the real motive for discharging Olson was his union ac-
tivity and not poor workmanship as alleged by the Re-
spondent.
3. The discharge of William Bruce and Kenneth
Slicker
The Respondent's personnel testified that Bruce and
Slicker were terminated for excessive absenteeism and/or
tardiness without an excuse. The Respondent pointed out
that employees were expected to work a total of 40
hours per week. During the 8 weeks of his employment
with Frey, Slicker worked a total of 40 hours in only 2
of those weeks. On the workweek ending October 1,
Slicker worked a total of 9 hours. Supervisor Unrein tes-
tified that during the above-stated week Slicker was out
sick and that his father had called in for him on Septem-
ber 29 to say that his son was out sick. He testified that
he did not hear anything else from Slicker until October
i, when Slicker called in to have another man from the
crew to bring his check to him. When questioned as to
why he had not called in, Slicker stated that he was
sorry, that he had, "relied on other people to call in for
him." Unrein, at that point warned him that the next
time he was late or tardy he was going to be terminated.
In the next week, the week ending October 8, Slicker
worked 40 hours. On the week ending October 15, on
that Monday, Slicker worked 8 hours. On October 12, a
Tuesday, he came in 10 minutes late, and Unrein told
him he was going to let him go for his constant tardi-
ness.
At another point in the testimony, Unrein pointed out
that the Company does not make any notations of tardi-
ness unless it is in excess of 15 minutes. Employees may
be docked for tardiness in excess of 15 minutes. It is
Slicker's testimony that he was only 5 minutes late on
October 12. Slicker had never received any written
warnings for being late and based on the testimony, pri-
marily of Unrein, with respect to Respondent's practice
with other employees, I find that Slicker's termination
for being 5 or 10 minutes late on October 12 was again
just another pretext for the Respondent's real motive.
The Respondent also asserts that it terminated employ-
ee Bruce for tardiness. The Respondent showed that
Bruce had been 15 to 20 minutes late on October 12, 10
to 30 minutes late on October 13, and perhaps 30 minutes
late on October 22, the date of his termination and also
the date in which Unrein documented in his diary that
Bruce was 40 minutes late. On the day previous, Unrein
warned Bruce that if he was late again he would fire him
and he did. The General Counsel, on brief, notes that an-
other employee, Richard Pierce not a union supporter,
often came in late for work. The timecards show that he
was often absent from the job as well and was not dis-
charged until early November 1982. Pierce though was
rehired in December 1982. Based on the Respondent's
practice with other employees, I find the reason given
for Bruce's discharge to be pretextual.
4. The discharge of Charles Hunsucker and Bill
Boatwright
Employees Hunsucker and Boatwright were allegedly
terminated by the Respondent for their refusal to do as-
signed work. Hunsucker was assigned to work on a jack-
hammer in the basement of the Holiday Inn jobsite. He
was terminated on October 5, 1982, when he refused to
work on the jackhammer further. Fellow employee Stan-
ford Daniel had been working on the jackhammer job
with Hunsucker until he hurt his back on approximately
October 1, and was off for a period of time. On October
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FREY MECHANICAL CONTRACTORS
5 Hunsucker's back started hurting and he complained to
Pierce and Unrein and asked for relief. Unrein informed
Hunsucker that if he could not run the jackhammer any-
more he was fired.
Unrein testified that Hunsucker had told him that his
back was not really hurting but rather just stiff and sore
from operating the jackhammer. After Hunsucker was
discharged, he went to a doctor, received a doctor's re-
lease, and returned to Unrein and asked if he could
return to work. Unrein refused to allow Hunsucker to
return. I find the Respondent's reason for Hunsucker's
discharge to be pretextual as it had already relieved em-
ployee Daniel from the jackhammer duty for injury.
Boatwright was terminated for refusing to work as a
helper with the welder. Boatwright testified that he in-
formed Callan and Unrein that he was not learning
plumbing work and he wanted to learn plumbing work
rather than stand around and do nothing with a welder.
He testified that before the election he had been per-
forming plumber's helpers' tasks for Slicker. About 3 or
4 days after the election he was assigned to work with a
welder. He was not told how long he would be working
with the welder and also testified that the welder had
previously been working without any assistance. Unrein
testified that upon being asked by Boatwright to be
moved to another position he had explained to Boat-
wright that the only work he had available for a helper
was to work with the welder. He further stated that if
Boatwright did not want to do the work he could quit
whereupon Boatwright stated that he would not quit and
Unrein terminated him. Boatwright testified that had he
been willing to work as the welder's helper he would
have been able to continue his employment. There is no
showing that Boatwright's transfer from plumber's
helper to welder's helper was motivated by the Respond-
ent's union animus other than its timing. The work as a
welder's helper was evidently no more difficult or oner-
ous than that work which Boatwright had performed
previously and evidently there was no differential in
wages. Under the circumstances, I cannot find the trans-
fer of Boatwright to constitute a constructive discharge
and I find that Boatwright effectively quit his employ-
ment. Consequently, I also find that no violation of the
Act was committed by the Respondent's actions regard-
ing Boatwright.
5. The discharge of Stanford Daniel
Daniel was allegedly terminated for his failure to call
in when he was unable to come to work. As noted
above, Daniel's back was injured on October 1, while
operating a jackhammer. After visiting a doctor, he re-
turned to the job on October 5, and informed Unrein
that he had a doctor's release until October 11. Unrein
told him that he needed to call in and let the Company
know how he was doing. On October 12, Daniel called
in to say that his doctor had not yet released him and
Unrein again asked him to let the Company know what
progress he was making. From October 12 until Novem-
ber 1, when Daniel reported back, he called in to check
with Unrein on a regular basis. On November 1 he came
back to work and was injured the later part of the week
on November 6, and had to go home early complaining
of his back. On November 8 Daniel called in and stated
that he was unable to come as he had been to a doctor
and was given some medication which made him
groggy. He also stated that he was going to take a
plumbing test for school. Unrein advised him to keep in
touch. From November 8 to 16, Unrein did not hear
from Daniel. On November 16 he showed up at the job
and was asked by Unrein why he had not reported.
Daniel stated, "all the phones were out." At that point
Unrein terminated him. Daniel testified that he was not
aware of, nor had he received, any company rules on ab-
senteeism or calling in procedures other than the copy of
rules and regulations in the record as General Counsel
Exhibit 9. Reference to this list does not state any proce-
dure for calling in or penalities for failure not to do so.
On November 8 when Daniel called in informing Unrein
that he could not come in because of the medication that
he was taking, Unrein told him to "keep in touch."
Unrein stated that he did not tell him how often to call
in. Unrein's journal entry for November 16, reads as fol-
lows: "Stan Daniel was here this morning and I fired
him for not calling us of his absence. He said the phones
were out of order so he couldn't call. Ha! Ha!" Unrein's
journal for November 15, the day before Daniel's firing,
points out that the jobsite shut down at 8:30 a.m.
In line with my earlier findings, I find that Daniel was
terminated because of the Respondent's union animus
and not for the reason stated. The Company has no writ-
ten call-in rule and Daniel was not warned of the conse-
quences of not calling in nor how often he should call in
to avoid problems. I find that the reason given by the
Respondent for the termination of Daniel was merely a
pretext.
IV. CONCLUSIONS
A. The 8(a) (1) Violations
In view of the findings above, I find that the Respond-
ent has violated Section 8(a)(1) of the Act by the con-
duct of Supervisors Callan, Unrein, and Littleton by co-
ercively interrogating employees concerning their and
other employees' support of the Union and by threaten-
ing its employees with discharge in the event of a union
victory in the election.
B. The 8(a)(3) Violations
I have found above that the Respondent discharged
seven employees, all but two of its employees who voted
in favor of the Union in the Board election, within 8
weeks after the date of the union election and after the
Respondent had expressed animosity and hostility to the
Union in the form of violations of Section 8(a)(l) of the
Act. As I have found above, the reasons advanced by
the Respondent for these discharges are pretextual. I
therefore conclude that the Respondent discharged six
employees for its animosity and hostility to the employ-
ees' union activities. For the reasons set forth above, I
have also found and conclude that the Respondent had
knowledge of these employees' activities and its termina-
tion of them was motivated by its desire to discourage
union membership and activity broadly, in violation of
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) and (3) of the Act. I have also found that
the discharge of employee Boatwright does not consti-
tute a violation of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer 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 coercively interrogating its employees concern-
ing union activities and by threatening its employees
with discharge if they chose to be represented by a
union, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) of the Act.
4. By discharging Kurt Coppock, Donald Olson, Ken-
neth Slicker, William Bruce, Charles Hunsucker, and
Stanford Daniel, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) of the Act.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that the Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act and
to post an appropriate notice to its employees. It also
having been found that the Respondent discharged em-
ployee Kurt Coppock on September 27, 1982; Donald
Olson on October 15, 1982; Kenneth Slicker on October
12, 1982; William Bruce on November 22, 1982; Charles
Hunsucker on October 3, 1982; and Stanford Daniel on
November 16, 1982, I shall recommend that the Re-
spondent be required to offer all of them full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges and to make all of them whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them. Any backpay found to be due
shall be computed in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest thereon computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).' the Respond-
ent shall expunge from its personnel files and other
records any reference to the discharges of these employ-
ees and notify them in writing that this has been done
and that the evidence of these unlawful discharges will
not be used as a basis for future personnel actions against
them.
On the basis of the entire record, the findings of fact,
and conclusions of law, I issue the following recom-
mended2
' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
2 If no exceptions are filed as provided in 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
ORDER
The Respondent, Frey Mechanical Contractors, Inc.,
El Paso, Texas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their and other employees support for the Union.
(b) Threatening employees with discharge if they
choose the Union to represent them.
(c) Discharging employees or otherwise discriminating
against them in any manner with respect to their tenure
of employment or any term or condition of employment
because they engaged in activities on behalf of the Union
or any other labor organization.
(d) In any other like or related manner interfering
with, restraining, or coercing its employees in the exer-
cise of their rights to self-organization, to join or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Kurt Coppock, Donald Olson, Kenneth
Slicker, William Bruce, Charles Hunsucker, and Stanford
Daniel immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions without prejudice to their se-
niority or other rights and privileges and to make them
whole for any loss of earnings in the manner set forth in
the section entitled "The Remedy."
(b) Post at its place of business in El Paso, Texas, and
if it is still continuing to do work at its jobsite in Hous-
ton, Texas, to also post there, copies of the attached
notice marked "Appendix. " s Copies of the attached
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive 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 said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days of this Order as to what steps the Respondent has
taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
s 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."
356