Fuqua Homes Missouri, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1973

201 N.L.R.B. 130 (N.L.R.B. 1973)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fuqua Homes Missouri , Inc. and General Drivers,
Warehousemen and Helpers Local Union No. 534,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 17-CA-4914
January 9, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 27, 1972, Administrative Law Judge I Ivar
H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The Union filed cross-
exceptions and a memorandum in support thereof
and in opposition to Respondent's exceptions. The
General Counsel filed a brief in support of the
Decision and suggestions for clarification thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as modified
herein.
1. We agree with the Administrative Law Judge
that the Respondent violated Section 8(a)(1) of the
Act by unlawfully interrogating employees about
their union activities , creating the impression of
engaging in,2 and in fact engaging in, surveillance of
union activity, implementing an invalid no-solicita-
tion rule,3 promising benefits to its employees if they
would refrain from engaging in union activities,
threatening to withdraw benefits from them for
engaging in union activities , promulgating more
onerous rules and regulations concerning tardiness,
absenteeism, and work efficiency, all in an effort to
control union activity and anticipatorily refusing to
bargain collectively.4 We also agree that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by
I The title of "Trial Examiner ' was changed to "Administrative Law
Judge" effective August 19, 1972
2 Although finding that Respondent had unlawfully interrogated
employees concerning their union activities and that Respondent had
created the impression of engaging in surveillance of their union activities,
all in violation of Sec 8(aXl) of the Act, the Administrative Law Judge
inadvertently failed to include these findings in his "Conclusions of Law."
The Decision is hereby amended to include them
3 In sec . II, A, par 7, of his Decision the Administrative Law Judge
found the no-sohcmtatmon rule prohibiting solicitations on "Company time or
premises" to be a violation of Sec . 8(axl) of the Act . Thereafter, in sec. II,
B, par. 5, he inadvertently described the rule as prohibiting solicitation on
"Company time and premises." This inadvertence is hereby corrected
4 In the last sentence of Conclusion of Law 2 of the Decision , the above
unlawfully discharging employees Lendell Decker
and James Davis on November 12, 1971, because of
their union activities and by constructively discharg-
ing employees Larry Stock, because of his union
activities, by assigning him to a more onerous
position on October 20, thereby forcing him to leave
on October 22, 1971.
2. Although Respondent was charged in the
complaint only with violations of Section 8(a)(1) and
(3) of the Act and the General Counsel throughout
the entire hearing disclaimed any intention of
seeking a bargaining order,5 the Administrative Law
Judge, nevertheless, as part of his Recommended
Remedy ordered the Respondent to recognize and to
bargain collectively with the Union in an appropriate
unit of Respondent's employees, excluding clerical
employees and supervisors. Thus, relying on the
Supreme Court's decision in Gissel Packing6 the
Administrative Law Judge concluded that Respon-
dent's violations of Section 8(a)(1) and (3) of the Act,
occurring during the Union's organizational cam-
paign, were so "extensive" and "pervasive" that a
bargaining order was the appropriate remedy "irres-
pective of a card majority" establishing the Union's
representative status. While we agree with the
Administrative Law Judge's characterization of
Respondent's illegal conduct as being extensive and
pervasive, we are of the opinion that a bargaining
order in the circumstances here disclosed is not
warranted.
Thus, we note, that aside from the petition? being
circulated by the employees favoring union repre-
sentation, the record is devoid of any evidence
establishing majority status on the part of the Union.
Moreover, while the petition, apparently relied on by
the Administrative Law Judge, does contain a
number of unauthenticated signatures of named
employees, there is no evidence in the record
establishing that the names appearing on the petition
comprise a majority of the Respondent's employees
in an appropriate unit. Furthermore, even assuming
the validity of the signatures on the petition, in view
of the ambiguous nature of the caption thereon, we
cannot conclude that such petition clearly demon-
strates that the employees by signing, clearly decided
conduct was inadvertently found violative of Sec . 8(a)(1) and (3) of the Act,
which finding is hereby amended to read "Section 8(a)(l)."
5 At the hearing, the Union , as part of its contention that the Board
should issue a bargaining order, acknowledged that it could not establish
majority status.
6 N.LR.B. V. Gissel Packing Co., Inc, 395 U.S. 575.
7 The petition, which the Administrative Law Judge refers to as "the
paper," was introduced as G.C. Exh. 2 and consists of two pages with a
handwritten caption over a listing of signatures on the front of the first
page, it also has signatures on the back but no caption . The second page
contains only two signatures , one of which is crossed out. The caption on
the front of the first page reads : "Be it known that the following are in favor
of and support the inacting of a union for better wages and working
conditions."
201 NLRB No. 13
FUQUA HOMES MISSOURI, INC.
to choose the Union as their exclusive representative
for purposes of collective bargaining. Additionally,
we note that the record does not establish any
demand by the Union for recognition.
In view of the foregoing, and since, primarily due
to the General Counsel's disclaimer throughout the
hearing of any intent to seek a bargaining remedy,
the issue of the Union's majority status or the desire
of the Respondent's employees in being represented
by the Union was never litigated at any stage of the
proceeding, we find that a bargaining order is not
appropriate, and the Administrative Law Judge's
recommended remedy and order in regard thereto is
not adopted.8 Accordingly, we shall amend his
recommended Order and notice.
3. The Administrative Law Judge 'also granted
the Union's request that it be reimbursed for its
litigation costs and related expenses, stating that he is
"... of the view that the conduct of the Respondent
in this proceeding is not to be distinguished from that
of the Respondent in the Tiidee case ...." We
disagree with this conclusion and find the facts
herein to be substantially different from those in the
Tiidee case.9
The Board in Tiidee granted the union litigation
costs and expenses because of the frivolous litigation
engendered by the Respondent's refusal to bargain
after an election had been conducted pursuant to an
agreement for consent election which resulted in the
union's certification. After the election the respon-
dent filed objections based on certain conduct of the
union which the Regional Director investigated and
overruled. Thereafter, although the consent agree-
ment had provided for final determination of any
such questions by the Regional Director, the respon-
dent refused to bargain with the union, raising broad
objections concerning its right to a hearing on its
postelection objections. Inasmuch as the circum-
stances herein are clearly distinguishable from those
in the Tiidee case and for reasons more fully set forth
in our recent decision in Heck's Inc., 191 NLRB No.
146, we do not adopt the Administrative Law Judge's
recommended remedy in this respect.
Accordingly, we shall amend the recommended
Order and notice to employees by deleting any
reference to reimbursement for litigation costs and
expenses.10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Fuqua Homes Missouri, Inc., Boonville, Missouri, its
131
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order, as herein modified:
1. Delete paragraphs 2(b), (d), (e), and (f) of the
recommended Order of the Administrative Law
Judge and reletter the remaining paragraphs accord-
ingly.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
s See The Loray Corporation, 184 NLRB No 57.
e Tudee Products, Inc., 194 NLRB No. 198.
to In the notice appended to the Administrative Law Judge's Decision
there is no reference to Respondent's unlawful interrogation of employees
regarding their union activities or to Respondent 's creating the impression
of engaging in surveillance of employees ' union activities. We shall,
therefore, amend the notice to conform in these respects to the findings in
the Decision which we are hereby adopting.
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 having found,
after a trial, that we violated Federal law by
terminating the employment of Larry Stock, Lendell
Decker, and James Davis because of their support of
General Drivers, Warehousemen and Helpers, Local
Union No. 534, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, by unlawfully interrogating
employees about their union activities, by creating
the impression of engaging in and in fact engaging in
surveillance of a meeting of employees with repre-
sentatives of said Union, by promulgating an invalid
no-solicitation rule, by promising increased benefits
and bonuses, by threatening to eliminate benefits, by
initiating more onerous rules and regulations con-
cerning tardiness, absenteeism, and work efficiency,
and by anticipatorily refusing to bargain with the
Union:
WE WILL offer Larry Stock, Lendell Decker,
and James Davis immediate reinstatement to
their former positions and compensate them for
the earnings they lost as a result of their
discharge, plus interest at 6 percent per annum.
WE WILL NOT discharge or discriminate against
any employee for supporting the Union.
WE WILL NOT promise increased benefits or
threaten to eliminate benefits.
WE WILL NOT initiate more onerous rules and
regulations concerning tardiness, absenteeism,
and work efficiency, and will rescind such rules
and regulations.
WE WILL NOT, in anticipation of a request to
bargain, refuse to do so.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully interfere with our
employees ' union or concerted activities.
WE WILL NOT interrogate employees regarding
their union activities.
WE WILL NOT create the impression that we are
engaging in surveillance of union activities.
WE WILL NOT engage in surveillance of union
activities.
FUQUA HOMES MISSOURI
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 610, Federal Building, 601
East 12th Street, Kansas City, Missouri 64106,
Telephone 816-374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case was tried
in Columbia, Missouri, on May 16 and 17, 1972. The
complaint was issued on December 30, 1971, on charges
filed on November 15 and amended on December 13 by
General Drivers, Warehousemen, and Helpers Local
Union No. 534, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union. Briefly stated, the
complaint alleged that beginning in October the Respon-
dent unlawfully interrogated the employees about their
union activities, created the impression of engaging in and
did in fact engage in surveillance of union activity,
implemented an invalid no-solicitation rule, threatened
employees with reduction or loss of benefits and with more
onerous working conditions, promised incentive awards,
improvement in holiday pay, and other benefits, trans-
ferred employee Larry Stock to a more onerous position on
October 20 and constructively discharged him on October
25, and on November 12 unlawfully discharged employees
Lendell Decker and James Davis and has since refused to
reinstate them, all in violation of Sections 8(axl) and (3)
and 2(6) and (7) of the Act. In its duly filed answer, the
Respondent admitted jurisdictional allegations of the
complaint but denied having committed any unfair labor
practices.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses and consider-
ation of the briefs filed by counsel for all parties on June
26, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture and distribu-
tion of mobile homes with its principal place of business
located at Boonville , Missouri. Admittedly, it annually
purchases goods and materials valued in excess of $50,000
directly from sources outside the State of Missouri and
annually sells products valued in excess of $50,000 directly
to customers located outside the State of Missouri. Also, it
annually sells products valued in excess of $50,000 to firms
located within the State of Missouri but which in turn
annually sell products valued in excess of $50,000 directly
to customers located outside the State. The Respondent is
a wholly owned subsidiary of Fuqua Industries Inc., of
Atlanta, Georgia, which is also engaged in the manufacture
and distribution of mobile homes with its principal place of
business in Atlanta. The two corporations are affiliated
businesses with the same officers, directors, and operators.
At all times material herein Peter Young, general manager,
and James Suddith, plant superintendent, were supervisors
and agents of the Respondent, within the meaning of
Section 2(11) and (13) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
During the latter part of September the three alleged
discnminatees (Stock, Decker, and Davis) circulated the
following petition among their fellow employees:
Be it known that the following are in favor and
support the enacting of a union for better wages and
working conditions.
The document bears some 21 signatures, including 2 that
were crossed out. Stock then found out which Teamsters
local serviced the Boonville area and a meeting was
arranged with the Union to be held at the Atlasta Motel,
Boonville, at 7:30 p.m. on October 21. During the several
days before this meeting Davis, Decker, and Stock
informed their fellow employees of the date, time, and
place of the meeting.
On October 20, in the afternoon, Plant Superintendent
Suddith told Stock, who weighs approximately 250 pounds,
that he was being transferred to work on the roofs of
trailers. Stock protested the transfer because he had
informed Suddith when first employed that he was afraid
of heights. At the end of the working day on October 21,
Davis, Decker, and Stock were called to a partially
completed office trailer outside the plant and told, in the
presence of Plant Superintendent Suddith and General
Manager Young, that, as counsel for the General Counsel
puts it, "he had had it with them." Young asked them what
each knew about the effort to get the Union into the plant
and each of them denied any knowledge of union activity.
FUQUA HOMES MISSOURI, INC.
Young then informed them that he knew there was to be a
union meeting the following evening and he intended to be
present.
The evening of October 21 a number of Respondent's
employees gathered at the Atlasta Motel and observed
Young and Suddith drive by the Motel parking lot and
then leave. The two of them stopped their car a few feet
from where Stock was standing and looked at him for a
few seconds before departing.
Stock, who weighs some 100 pounds more than the
regular roofers, Dale Purvis and Casey Jones, worked on
the trailer roofs on October 21 and 22. As he crawled
across the trailer roof some 12 feet above ground level, he
broke through the roof on at least one occasion. He never
returned to work again for the Respondent after October
22.
On October 26, the Respondent posted a notice on the
bulletin board to the effect that there would be no
solicitation on company time or premises .' At the time that
this notice was posted and thereafter the Respondent gave
its employees two paid 10-minute work breaks during the
day. About 1 o'clock on October 26, Young summoned the
employees to a meeting at which he stated, among other
things, that the employees may be looking elsewhere for
their Christmas dinners that year. During the previous
Christmas season the Respondent had given each employ-
ee a turkey and $20.
On October 29, the Respondent posted a notice, signed
by Suddith, and distributed it to employees which set forth
regulations concerning tardiness and absenteeism and
concluded as follows:
For the talkers, the walkers, and wanderers, the job
cutters, the daydreamers, the habitually frequent rest
room attenders, the break and lunch extenders, read
and head (sic) for this is your final warning.
Young held another meeting of employees on November
5, and announced that the employees would receive the
day after Thanksgiving as a holiday and that the employee
of the month would receive $50 and a Fuqua shirt.
Theretofore, employees had never been informed of an
extra holiday or prizes for the employee receiving the
monthly award.
On November 12, Suddith came to Davis and Decker
and gave them their checks, telling them that he had signed
statements from two employees that Davis and Decker had
signed union solicitation cards on company time. Roy
Cassidy was one of the two employees who signed the
statement implicating Davis and Decker. Cassidy testified
that he did not directly tell any official of management
about his conversation with Davis but that he did tell John
Heim, one of the two signers of the statement.
Young called another meeting of employees in the
afternoon of December 3, and announced that the days
before Christmas and New Year's would be paid holidays.
Theretofore, the employees had not been told that these
extra holidays would be given to them. At the same time,
Young stated that he knew there had been a union meeting
the night before and added that if the Union got in he did
1 The text to the notice is not in the record.
2 Moreover, any risk of ambiguity of such a rule must be held against the
133
not have to agree to anything but that all he had to do was
to listen.
B. The Alleged Discriminatory Terminations
As previously stated, the complaint alleged that three
employees were discriminatorily terminated: Larry Stock
on October 25, Lendell Decker and James Davis on
November 12. We will first consider the evidence concern-
ing Stock.
Stock, a young man employed by the Respondent in
May 1970, weighs about 250 pounds. During the early part
of October 1971 Stock distributed a petition which stated
the signers were "in favor of and support the enacting of a
union for better wages and working conditions," and
solicited employees to sign it.
Two days before Stock left the employ of the Respon-
dent he was transferred to work on trailer roofs. Stock had
previously informed Suddith that he was apprehensive
about working heights above ground; however, Suddith
nonetheless effected the transfer. As previously stated, on
at least one occasion while working on the trailer roofs,
Stock fell partially through the roof and, in consequence,
did not return to work after October 22.
On the record, I find little if any justification for the
transfer of Stock to work on trailer roofs. The Respondent
had two roofers, Purvis and Jones, each of whom weighed
in the vicinity of 150 pounds--some 100 pounds less than
Stock. In view of the Respondent's knowledge that Stock
was apprehensive about working above ground, and his
excessive weight, it seems plain to me that the Respondent
was in substantial part motivated in making the transfer by
a desire to make Stock's working conditions so onerous as
to cause him to cease working for the Respondent. In sum,
I am persuaded and find that by transferring Stock to
working on trailer roofs, with the result that he ceased
working for the Respondent, the Respondent constructive-
ly discharged him. Moreover, I find that the motivating
factor in the Respondent's action was that Stock had
engaged in union activity. Consequently, I find that his
ceasing to work for the Respondent constitutes a construc-
tive discharge, for discriminatory reasons, violative of
Section 8(a)(3) and (1) of the Act.
As stated above, the Respondent promulgated a no-
solicitation rule on October 26 which provided that there
would be no solicitation on company time and premises.
However, the Respondent gave employees two 10-minute
work breaks during the day at which time the employees
were on company time but not working time. The
solicitation of authorization cards fall within the area of
oral solicitation and may be prohibited only during
working time. See Stoddard-Quirk, 138 NLRB 165, 619.2
Even if it be assumed that the rule was presumptively valid
on its face, the facts here rebut any such presumption. The
rule was promulgated less than a week after Young and
Suddith had engaged in the surveillance of the first union
organizational meeting and had questioned Davis, Decker,
and Stock concerning their knowledge of the Union's
organizational campaign. The rule was first applied against
promulgator of the rule . N.LR B. v. Miler Charles Co, 341 F.2d 870 (C.A.
2, 1965)
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis and Decker, known adherents of the Union.
Moreover, other types of solicitation were permitted during
working time . In addition, the Respondent engaged in a
pattern of conduct which was clearly hostile to the
Teamsters organizational efforts ; these included interroga-
tion, surveillance, promise of benefits, threats to withdraw
benefits, and anticipatory refusal to bargain . Such actions
were clearly violative of Section 8(a)(l) of the Act and I
can come to no other conclusion than that the terminations
of Davis, Decker, and Stock were plainly violative of
Section 8(a)(3) and (1) of the Act. The Respondent knew,
through reports from Foreman Jerry Reuter and employee
John Hein (the son of Respondent's accountant), that Hein
signed the complaint against Davis and Decker only after
Suddith had first ascertained that Hein did not want the
Union in the plant. Hein came up to Decker and Davis
almost daily in the plant and engaged them in discussions
about the Union. Hein had daily talks with his father about
what went on out at the plant. I think it is fair to infer that
Hein was encouraged by his father to engage Davis and
Decker in conversations about the Union. With respect to
Cassidy, Davis and Decker admitted having solicited
Cassidy to sign an authorization card, but Decker did so in
the parking lot before work about 4 days before Davis and
Decker were terminated. Davis solicited Cassidy to sign a
card in downtown Boonville, after working hours. Al-
though Cassidy signed the complaint against Davis and
Decker, he clearly stated that he had had no conversations
with anyone from Respondent's management about Davis'
union solicitation of him, and he did not testify that he had
been solicited by Decker. In sum, I conclude that the
termination of Davis and Decker was pursuant to the
unlawful no-solicitation rule and was therefore violative of
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By constructively discharging Larry Stock on Octo-
ber 22, 1971, and by terminating Lendell Decker and
James Davis on November 12, 1971, because of their
support of the Union, the Respondent engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) of the Act.
2. By engaging in surveillance of a meeting of its
employees with union representatives, by promulgating an
invalid no-solicitation rule, by promising increased benefits
and bonuses, by threatening to eliminate benefits, by
initiating more onerous rules and regulations concerning
tardiness, absenteeism , and work efficiency, and by
anticipatorily refusing to bargain, the Respondent violated
Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and to take
certain affirmative action.
The Respondent having constructively discharged Larry
Stock and discriminatorily terminated Lendell Decker and
James Davis, I find it necessary that the Respondent be
ordered to offer them full reinstatement with backpay
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, from the date of the terminations to the date
reinstatement is offered.
At the hearing and in his brief counsel for the Union
requested that the usual remedies for violations here found
be made but, in addition, he stated that in his view those
customary remedies are inadequate. Indeed , counsel states
that to maintain that after Respondent's course of conduct
"employees can still make a free determination is absolute
folly," and that by the time the case has progressed
through the Board and the courts "the Union's strength
will have been depleted, its members will have been
thoroughly disillusioned with principles of collective
bargaining, and turnover will have taken its toll ." In view
of these considerations , counsel for the Union requests that
the Respondent be ordered to bargain with the Union,
basing this proposal upon the Supreme Court's decision in
N.LR.B. v. Gissel Packing Co., 395 U.S. 575. Counsel, in
support of his proposal, points to the language in that case
that when an employer's violations of 8(a)(1) and (3)
"committed during the representation campaign were so
extensive and pervasive . . . a bargaining order was the
only available Board remedy irrespective of a card
majority." Counsel asserts that the Respondent's conduct
`'certainly falls into this category and . . . is far more
extensive and pervasive than that discussed by the Court in
Gissel. "
Union counsel further requests that the Union be
reimbursed for its costs and legal expenses , resting this
request upon Tiidee Products, Inc., 194 NLRB No. 198, and
196 NLRB No. 27, and United Steelworkers of America v.
Butler Manufacturing Company, 439 F.2d 1110 (C.A. 8,
1971). The Union further requests that in backpay
computations there be included both "current and realistic
interest rates and cost of living increases ," pointing out
that 8 years have passed since the Board ordered that
backpay be computed at 6-percent interest. Counsel
further request that the Union be given "the first
opportunity to provide a replacement for any discriminatee
who declines reinstatement," asserting that "a remedy
which provides no deterrent for future violation and which
allows an employer to profit from his own wrong doings, is
woefully insufficient." He further requests that notices be
mailed to each employee and that the Union should be
afforded the opportunity to address employees on compa-
ny time and property. Finally, the Union requests that
Lendell Decker should be reimbursed for the financial
losses he suffered because, by reason of his discharge, he
lost his hospitalization insurance.
With respect to the Union's request that it be reimbursed
for its litigation costs and related expenses , the Board in
Ex-Cell-O Corporation, 185 NLRB No. 20, enfd. sub nom.
International Union United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW v.
N.LR.B., 449 F.2d 1046, 1058 (C.A.D.C.), stated its
conclusion to be that Congress did not give the Board
FUQUA HOMES MISSOURI, INC.
extraordinary authority to grant the compensatory mone-
tary remedy requested by the union concerned in that case.
However , the court of appeals disagreed with this view of
the scope of the Board's statutory remedial power and
remanded the cases to the Board for further proceedings
not inconsistent with the court 's opinion . In Tiidee, the
Board stated that it "adheres to the views expressed in Ex-
Cell-O, but nonetheless stated that `inasmuch as it has
accepted the remand , it considers itself bound by the
Court's opinion as the law of the case .' " While I
sympathize with the Union 's request that current and
realistic interest rates and cost-of-living increases be
included in the determination of the interest to be awarded
on backpay, I consider myself bound by the Board's
current practice of awarding 6-percent interest . In my view,
the Board rather than a Trial Examiner should determine
whether more than 6-percent interest should be awarded.
As to reimbursement for costs and related expenses the
Board in Tiidee did award such to the union there involved.
The Board there granted the request that the union be
reimbursed "for certain litigation costs and expenses,"
stating that it would effectuate the policies of the Act and
serve the public interest "to order Respondent to reimburse
the Board and the Union for their expenses incurred in the
investigation , preparation , presentation, and conduct of
these cases, including the following costs and expenses
incurred in both the Board and Court proceedings:
reasonable counsel fees , salaries , witness fees , transcript
and record costs , printing costs , travel expenses and per
diem , and other reasonable costs and expenses ." I am of
the view that the conduct of the Respondent in this
proceeding is not to be distinguished from that of the
Respondent in the Tiidee case, and, therefore , I conclude
that the order should provide for reimbursement of
litigation costs and expenses.
With respect to the request that the Respondent be
ordered to bargain with the Union , I note that a majority
of the employees signed the paper favoring selecting a
union . In my opinion , the pattern of misconduct clearly
established in this case comes within the terms of the
Supreme Court 's decision in Gissel, and, accordingly, I
shall direct that the Respondent bargain collectively with
the Union. In addition I conclude that in addition to
posting notices on bulletin boards each unit employee
should be mailed a copy of the notice at his home address.
As to reimbursement of Decker for the financial losses he
suffered because he lost his hospitalization insurance, I
think it only fair that this should be done , and my order
will so provide . I do not , however, believe that the Union
should be given the "first opportunity to provide a
replacement for any discriminatee who declines reinstate-
ment" or that the Union be afforded an opportunity to
address the employees on company time and property.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case , and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended: 3
3 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and recommended Order herein shall, as
ORDER
135
Respondent , Fuqua Homes Missouri , Inc., Boonville,
Missouri , its officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting General Drivers, Warehousemen
and Helpers, Local Union No . 534, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , or any other union.
(b) Coercively interrogating or threatening any employee
concerning union support or union activities, engaging in
or giving the impression of engaging in surveillance of
union or concerted activity of its employees , promising
benefits to its employees if they would refrain from
engaging in union activity or threatening to withdraw
benefits from them for engaging in such activity , promul-
gating more onerous rules and regulations concerning
tardiness , absenteeism , and work efficiency , promulgating
or enforcing an unlawful no-solicitation rule, or in
anticipation of a demand for collective bargaining stating
that it would not bargain collectively.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Larry Stock, Lendell Decker, and James
Davis immediate and full reinstatement to their former
jobs or, if such jobs no longer exist, to substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges , and make them whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify the said employees , if presently serving in the
Armed Forces of the United States, of the right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records , timecards,
personnel records and reports , and all other records
necessary to determine the amount of backpay due.
(d) Upon request, bargain collectively with the above-
named Union as the exclusive representative of its
employees , excluding clerical employees and supervisors
within the meaning of the Act, who constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
(e) Mail a signed copy of the attached notice marked
"Appendix" to each of its employees immediately upon
receipt thereof from the Regional Director for Region 17.
(f) Pay to the Board and the Union the costs and
expenses incurred by them in the investigation , prepara-
tion, presentation, and conduct of this case before the
National Labor Relations Board and the courts , such costs
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions, and order, and all objections
thereto shall be deemed waived for all purposes.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be determined at the compliance stage of this proceed-
ing.
(g) Post at its premises in Boonville , Missouri , copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 17, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
4 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of a United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notice is not altered , defaced , or covered by any
other material.
(h) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.5
S In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read-
"Notify the Regional Director for Region 17, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith."