Garney Morris, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 101 (N.L.R.B. 1993)

101
313 NLRB No. 9
GARNEY MORRIS, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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. The Respondent also asserts
in effect that the judge’s rulings, findings, and credibility determina-
tions are the results of bias. After a careful examination of the entire
record we are satisfied that this allegation is without merit.
The General Counsel moved to strike as unsupported in the record
portions of the Respondent’s brief in support of its exceptions that
refer to employee Harrison’s alleged tardiness. In view of our deci-
sion here adopting the judge’s finding that Harrison’s discharge was
unlawful, we find it unnecessary to pass on the General Counsel’s
motion.
We correct the following errors of the judge, which do not affect
our decision. In conjunction with his finding that employee Raffa
was unlawfully discharged, the judge erroneously stated that Raffa
and employee Aldrich had attempted to call in when Aldrich’s car
broke down but the telephone at the jobsite was out of order. Testi-
mony reflected instead that the telephone near the site of the break-
down was out of order. The remark made by Supervisor Stevenson
that, as soon as the ‘‘union shit’’ blows over, prounion employees
would be ‘‘taken care of’’ was made to employee Schooley and not
to Aldrich, as the judge erroneously states at one point in his deci-
sion. Contrary to several statements by the judge, the parties agreed
as to the validity of 31 authorization cards and submitted 10 dis-
puted cards to the FBI. Finally, although the judge described the ap-
propriate bargaining unit as including electricians, counsel for the the
General Counsel stated at hearing without controversion that elec-
tricians are also known as mechanics.
The General Counsel excepts to the judge’s suggestion that em-
ployee Quinn performed the Pre-Mix job before performing the
lower Makefield job. It is unclear from the record in which order
Quinn performed the jobs, but we conclude that this has no effect
on his finding, which we adopt, that Quinn was unlawfully dis-
charged. The General Counsel also excepts to the judge’s failure to
specify the dates the Respondent unlawfully laid off employee
Hughes. Contrary to the General Counsel, the judge, at fn. 16 does
set forth the time periods during which Hughes was laid off, and
these periods differ slightly from the dates set forth in the General
Counsel’s brief in support of his exceptions. We will leave to com-
pliance the resolution of these minor discrepancies.
2 Regarding the conduct found unlawful designated (u) and (v), al-
though it was not alleged in the complaint that Supervisor Stevenson
made these statements, as the judge found and we reverse, it was
alleged that Supervisor Schlack made these statements. Thus, the
General Counsel, in his answering brief, requests the Board to find
the conduct engaged in by Schlack to be unlawful. We decline to
do so because Schlack, at the hearing, denied making the statements
at issue and the judge failed to discredit his denial.
Garney Morris, Inc. and International Brotherhood
of Electrical Workers, Local 269. Cases 4–CA–
18570, 4–CA–18863, 4–CA–19241, 4–CA–19487,
4–CA–19904, 4–CA–20210–2, and 4–CA–20309
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 12, 1992, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions as modified and to
adopt the recommended Order as modified and set
forth in full below.
1. The General Counsel submits that the judge erred
in finding certain unfair labor practices that were in
fact not alleged by the General Counsel. We agree.
Therefore we reverse the judge’s decision regarding his
findings of independent violations of Section 8(a)(1) of
the Act set forth in section C,2 of his decision and
designated (a), (e), (h), (m), (n), (u), (v), (w), and (y).2
For the same reason, we reverse the judge’s finding at
section 4,e of his decision that employee Hughes’ lay-
offs subsequent to June 1990 violated Section 8(a)(4)
of the Act. In connection with his finding of the inde-
pendent violation of Section 8(a)(1) designated (y), the
judge found that Leadman Prendergast and the other
leadmen were statutory supervisors. This finding of su-
pervisory status was not based on any complaint alle-
gation and is directly contrary to record evidence.
Thus, we reverse it.
Additionally, we find it unnecessary to pass on the
judge’s findings that the Respondent engaged in cer-
tain threats and promises of benefits in violation of
Section 8(a)(1) set forth in section C,2 of his decision
and designated (p), (r), and (s) because these findings
would be cumulative and in light of the Respondent’s
witnesses’ denials of the conduct alleged and the
judge’s failure to make credibility resolutions nec-
essary to the finding of the the violations. We further
do not adopt the judge’s finding at section C,2 des-
ignated (aa) that the Respondent threatened to engage
in protracted litigation to defeat an organizing drive in
violation of Section 8(a)(1) in light of the judge’s fail-
ure to discredit the Respondent’s witness’ denial of the
conduct alleged, and we will modify the judge’s rem-
edy accordingly.
2. The judge determined that the Respondent vio-
lated Section 8(a)(2) of the Act by establishing an em-
ployee committee. In this regard, the judge credited the
testimony of the Respondent’s former project manager
that the committee was formed at the suggestion of the
Respondent’s president for the purpose of presenting
grievances and suggestions directly to him rather than
resorting to an outside bargaining agent. The Respond-
ent excepts to this finding and refers to the Board’s re-
cent decision in Electromation, Inc., 309 NLRB 990
(1992). We find nothing in that decision to cast doubt
on the correctness of the judge’s finding, which we
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although the judge found that the Respondent violated Sec.
8(a)(2), his Conclusions of Law inadvertently failed to include such
a finding. Thus we modify his conclusions consistent with that find-
ing to include as Conclusion of Law 9 that ‘‘By forming, dominating
and assisting the Outside Employee Committee, the Respondent vio-
lated Sec. 8(a)(2) of the Act’’ and to renumber the subsequent con-
clusion accordingly.
4 Member Devaney specifically concludes, consistent with his posi-
tion in Electromation, supra, that the Respondent usurped the Sec.
7 rights of its employees to choose their own bargaining representa-
tive, and therefore violated Sec. 8(a)(2).
Member Raudabaugh finds, under the test set forth in his concur-
ring opinion in Electromation, that the Respondent violated Sec.
8(a)(2). The Respondent completely dictated the structure of the
committee and controlled its operations, the employees could reason-
ably view the committee as a substitute for collective bargaining
through traditional union representation, the employees were never
given assurances of their right to choose collective bargaining
through traditional union representation and the Respondent’s actions
vis-a-vis the committee were motivated by antiunion animus.
adopt.3 As found by the judge, the committee was
dominated and assisted by the Respondent’s president
from its inception during the Union’s organizing drive
for the express purpose of giving the employees an al-
ternative to unionization with respect to discussing
terms and conditions of employment. The judge’s find-
ing of a violation of Section 8(a)(2) is thus consistent
with Electromation.4
3. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging or
otherwise discriminating against various employees.
The Respondent excepts to these findings and the Gen-
eral Counsel cross-excepts to, inter alia, the judge’s
failure to include a Wright Line analysis in his reason-
ing. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). We adopt
the judge’s findings. In doing so, we note that, al-
though the judge did not explicitly analyze the dis-
charges and other discrimination with reference to
Wright Line, his findings are consistent with that deci-
sion. In each instance, the judge essentially found a
prima facie case of discriminatory conduct and consid-
ered and rejected as invalid each of the Respondent’s
proffered defenses to the allegations that its actions
were unlawful. Also see Limestone Apparel Corp., 255
NLRB 722 (1981).
4. We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to recog-
nize and bargain with the Union as the exclusive col-
lective-bargaining representative of the Respondent’s
employees in the unit set forth in the judge’s decision
as of January 1990, when the Union made a demand
for recognition and bargaining. The Respondent con-
tends that it had no duty to bargain with the Union or,
alternatively, that any duty it had to bargain with the
Union was extinguished, under the terms of an infor-
mal settlement agreement. Contrary to the Respondent,
we do not find that the purported informal settlement
agreement signed by the Respondent and counsel for
the General Counsel in May 1991 precludes the Board
from finding that the Respondent was under an obliga-
tion to bargain. As the judge noted, that agreement was
never approved by the Regional Director or anyone
else authorized to approve settlements.
Further, we note that any doubt the Respondent
might have had about the status of that agreement was
clearly resolved on August 27, 1991. On that date, the
Region sent a letter to the Respondent confirming a
telephone conversation in which the Respondent had
been notified that an investigation of charges filed after
the Respondent had signed the agreement could cause
the Regional Director to withhold approval of the set-
tlement agreement. Under these circumstances, we
conclude that the Respondent’s reliance on the pur-
ported settlement agreement is misplaced. Compare
NLRB v. Sav-On Drugs, 728 F.2d 1254, 1256–1257
(9th Cir. 1984), in which the court discussed the gen-
eral proposition that a party acts at its peril if it pro-
ceeds on the basis of a decision which is not final and
concluded that the prevailing party in a Board proceed-
ing could not reasonably rely on a lower level agency
decision where it had notice that the Board had granted
the opposing party’s request for review.
5. To remedy the unlawful discharges and layoffs he
had found, the judge recommended that the Respond-
ent be ordered, inter alia, to offer discriminatees Raffa,
Aldrich, Goulet, Hughes, and Quinn reinstatement. The
General Counsel excepts to this portion of the judge’s
recommended Order except with respect to Quinn,
pointing out that as to all the discriminatees except
Quinn, the record reflects that the Respondent had pre-
viously offered reinstatement to these individuals and
that the General Counsel did not seek such a remedy.
Thus, we will modify the Order to delete the reinstate-
ment remedy regarding these individuals.
The judge also recommended granting a Gissel bar-
gaining order in this case to remedy the Respondent’s
unfair labor practices. NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). The judge noted, ‘‘It is hard to
imagine any conduct on the part of an employer which
could more thoroughly decimate an organizing drive
and more surely render a Board election meaningless.’’
The Respondent excepts to the imposition of such an
order under the particular facts presented, and the Gen-
eral Counsel contends that the judge failed to fully
support his recommended imposition of that remedy.
We agree that the judge’s recommended bargaining
order is necessary and appropriate for the following
reasons.
In Gissel, supra, the Court stated that in determining
whether a bargaining order remedy is warranted, the
Board may properly consider the extensiveness of the
unfair labor practices in terms of their continuing ef-
fect on election conditions and the likelihood of their
recurrence in the future to determine if the conduct has
103GARNEY MORRIS, INC.
a tendency to undermine majority strength and impede
the use of traditional remedies. 395 U.S. at 614–615.
After learning of the existence of union activity among
its employees, the Respondent almost immediately, and
systematically, embarked on a widespread antiunion
campaign designed to discourage union support. The
record reveals a large number and variety of unfair
labor practices affecting a large number of employees,
including repeated ‘‘hallmark’’ violations such as
widespread threats of plant closure and job loss, and
actual, unlawful layoffs and discharges of union sup-
porters. Such violations are likely to have a long-term
coercive impact and are among the most flagrant forms
of interference with employees’ Section 7 rights. See
DTR Industries, 311 NLRB 833, 836 (1993), citing
Eddyleon Chocolate Co., 301 NLRB 887, 891 (1991).
Many of these serious unfair labor practices, signifi-
cantly including a physical assault on a
discriminatorily laid-off employee, were carried out by
the Respondent’s owner and president. The participa-
tion of a high-level manager in unlawful conduct exac-
erbates the natural fear of employees that they would
lose employment if they persisted in their union activi-
ties. DTR, supra; Koons Ford of Annapolis, 282 NLRB
506, 508 (1986). Thus, we conclude that these viola-
tions, which threaten the very livelihood of employees,
are likely to have a lasting impact not easily eradicated
by the mere passage of time or the Board’s usual rem-
edies.
We also note that the Respondent’s unfair labor
practices began, as noted above, almost immediately
after it learned of the unionization effort and continued
unabated over a long period of time. Moreover, the
Respondent’s unlawful activities continued even after
it agreed to enter into the purported informal settle-
ment agreement it raises here as a defense to the impo-
sition of the bargaining order. Significantly, in this re-
gard, when the Respondent discovered in connection
with its negotiations for the informal settlement agree-
ment that an employee had signed an authorization
card, it took discriminatory action against him. Thus,
the Respondent’s entire course of conduct reveals con-
tinued hostility toward employee rights and thus evi-
dences a strong likelihood of a recurrence of unlawful
conduct in the event of another organizing effort. Cf.
Eddyleon Chocolate Co., supra, where the Board found
the likelihood of recurring unlawful conduct to be
great where the respondent revealed continuing hos-
tility in its postelection misconduct.
We accordingly find that the possibility of erasing
the lingering effects of the Respondent’s unfair labor
practices is slight and that the employees’ representa-
tional desires expressed through authorization cards
would, on balance, be better protected by a bargaining
order than by traditional remedies.
ORDER
The National Labor Relations Board orders that the
Respondent, Garney Morris, Inc., Levittown, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities and forcing them to disclose ei-
ther verbally, in writing, or by a showing of hands,
their union sympathy or lack of union sympathy.
(b) Creating in the minds of employees the impres-
sion that their union activities are a matter of company
surveillance.
(c) Threatening employees with layoff, discharge, or
plant closure because of their union activities.
(d) Telling an employee that he has been discharged
because of his union activities.
(e) Promising and granting increases in compensa-
tion in order to persuade employees to abandon their
support for the Union.
(f) Soliciting employees to withdraw their support
from the Union.
(g) Assaulting employees because of their union ac-
tivities.
(h) Discouraging membership in or activities on be-
half of International Brotherhood of Electrical Work-
ers, Local 269, or any other labor organization, by
changing disciplinary forms and procedures, by dis-
charging or laying off employees, or by otherwise dis-
criminating against them in their hire or tenure.
(i) Discharging or otherwise discriminating against
employees because they have filed charges or given
testimony under the Act or because charges have been
filed under the Act on their behalf.
(j) Assisting or dominating any labor organization.
(k) Refusing to recognize and bargain collectively in
good faith with International Brotherhood of Electrical
Workers, Local 269, as the exclusive collective-bar-
gaining representative of all the Respondent’s full-time
and regular part-time electricians/mechanics, appren-
tices, and helpers employed at its Levittown, Pennsyl-
vania shop, exclusive of office clerical employees,
guards, and supervisors as defined in the Act.
(l) Unilaterally changing wages, hours, or terms and
conditions of employment of any bargaining unit em-
ployee.
(m) By any other means or in any other manner
interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Disestablish and cease giving recognition or as-
sistance to the Outside Employees Committee and no-
tify its employees that it has done so.
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Offer Jerome Quinn immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make Jerome Quinn, Keith
Raffa, Stephen Aldrich, Bruce Goulet, and John
Hughes whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of
the decision.
(c) Remove from its files any reference to the un-
lawful discharges or unlawful discipline and notify the
employees in writing that this has been done and that
the discharges, layoffs, and discipline will not be used
against them in any way.
(d) Recognize and, on request, bargain collectively
in good faith with International Brotherhood of Elec-
trical Workers, Local 269, as the exclusive collective-
bargaining representative of all full-time and regular
part-time electricians/mechanics, apprentices, and help-
ers employed at the Respondent’s Levittown, Pennsyl-
vania shop, exclusive of office clerical employees,
guards, and supervisors as defined in the Act.
(e) Rescind the order discontinuing payments to its
401(k) fund and the order discontinuing gasoline pay-
ments.
(f) Resume making payments to its 401(k) fund and
reimbursing employees for gasoline and toll payments,
to make whole its employees for its failure to make
gasoline and toll payments from the date such pay-
ments were discontinued until the date on which such
payments have been resumed, and make whole its
401(k) fund for any and all losses of payments which
have occurred since such payments were discontinued,
with interest.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at the Respondent’s Levittown, Pennsyl-
vania shop copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees con-
cerning their union activities. WE WILL NOT force em-
ployees to disclose either verbally, in writing, or by a
showing of hands, their union sympathy or lack of
union sympathy.
WE WILL NOT create in the minds of employees the
impression that their union activities are a matter of
company surveillance.
WE WILL NOT threaten employees with layoff, dis-
charge, or plant closure because of their union activi-
ties.
WE WILL NOT tell employees that they have been
discharged because of their union activities.
WE WILL NOT promise or grant increases in com-
pensation in order to persuade employees to abandon
their support for the Union.
WE WILL NOT solicit employees to withdraw their
support from the Union.
WE WILL NOT assault employees because of their
union activities.
WE WILL NOT discourage membership in or activi-
ties on behalf of International Brotherhood of Elec-
trical Workers, Local 269, or any other labor organiza-
tion, by changing disciplinary forms or procedures, by
discharging or laying off employees, or otherwise dis-
criminating against them in their hire or tenure.
WE WILL NOT discharge or otherwise discriminate
against employees because they have filed charges or
given testimony under the Act or because charges have
been filed under the Act on their behalf.
WE WILL NOT assist or dominate any labor organiza-
tion.
WE WILL NOT refuse to recognize and bargain col-
lectively in good faith with International Brotherhood
of Electrical Workers, Local 269, as the exclusive col-
lective-bargaining representative of all our full-time
and regular part-time electricians/mechanics, appren-
tices, and helpers, exclusive of office clerical employ-
ees, guards, and supervisors as defined in the Act.
105GARNEY MORRIS, INC.
1 The principal docket entries in this case are as follows:
Charge filed by International Brotherhood of Electrical Workers,
Local 269 (the Union) against the Respondent in Case 4–CA–18570,
on January 16 and amended on March 28, 1990; charge filed by
Union against the Respondent in Case 4–CA–18679 on February 22,
1990; amended charges in Cases 4–CA–19487 and 4–CA–20210–2
filed by the Union against the Respondent on January 10 and No-
vember 4, 1991, and amended on March 4, 1992; charge filed by
the Union against the Respondent in Case 4–CA–18863 on April 30,
l990; order consolidated cases and consolidated complaint issued
against the Respondent by the Regional Director for Region 4 on
July 31, 1990, in Cases 4–CA–18570, 4–CA–18863, and one other
case which is not a part of this proceeding; Respondent’s answer
filed on September 25, 1990; charge filed by the Union against the
Respondent in Case 4–CA–19241 on September 25, 1990; complaint
issued by the Regional Director for Region 4 against the Respondent
in Case 4–CA–19241 on December 28, 1990; Respondent’s answer
in Case 4–CA–19241 filed on January 11, 1991; later cases consoli-
dated with earlier cases by order dated March 19, 1991; Respond-
ent’s answer to further consolidated complaint filed on April 1,
1991; withdrawal of representation by Respondent’s counsel on
April 23, 1991; charge filed by Union against Respondent in Case
4–CA–19904 on July 8, 1991; charge filed by Union against Re-
spondent in Case 4–CA–20210–2 on November 4, 1991; complaint
issued by Regional Director for Region 4 against the Respondent in
Case 19904 on November 26, 1991; charge filed by Union against
Respondent in Case 4–CA–20309 on December 10, 1991; Respond-
ent’s answer in Case 4–CA–19904 filed on December 16, 1991; Re-
spondent’s answer in Case 4–CA–20309 filed on March 27, 1992;
complaint issued by Regional Director against Respondent in Case
4–CA–20309 and consolidated with all other pending complaints,
dated April 28, 1992; Respondent’s answer to consolidated com-
plaint filed on May 26, 1992; hearing held in Philadelphia, Pennsyl-
vania, on July 20–24, 1992; and briefs filed with me by the General
Counsel and the Respondent on September 24, 1992.
2 Respondent admits, and I find, that it is a Pennsylvania corpora-
tion which maintains its principal place of business in Levittown,
Pennsylvania, where it is engaged in the electrical contracting busi-
ness. During the preceding year it performed services valued in ex-
cess of $50,000 directly outside the Commonwealth of Pennsylvania.
Accordingly, it is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
WE WILL NOT unilaterally change the wages, hours,
or terms and conditions of employment of any bargain-
ing unit employees.
WE WILL NOT by any other means or in any other
manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL disestablish and cease giving recognition
or assistance to the Outside Employees Committee and
notify employees that we have done so.
WE WILL offer Jerome Quinn immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make Jerome
Quinee, Keith Raffa, Stephen Aldrich, Bruce Goulet,
and John Hughes whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest.
WE WILL remove from our files any reference to
layoffs, unlawful discharges, and disciplinary actions
and notify the employees in writing that this has been
done and that the discharges, layoffs, and disciplinary
actions will not be used against them in any way.
WE WILL recognize and, on request, bargain collec-
tively in good faith with International Brotherhood of
Electrical Workers, Local 269, as the exclusive collec-
tive-bargaining representative of all our mechanics in
the unit set forth above.
WE WILL resume making payments to the 401(k)
fund and WE WILL reimburse employees for any such
payments that were not made since the time they were
discontinued, with interest.
WE WILL resume making toll and gasoline payments
and WE WILL reimburse employees for any such pay-
ments that were not made since the time they were dis-
continued, with interest.
GARNEY MORRIS, INC.
Timothy J. Brown, Esq. and Steven Goldstein, Esq., for the
General Counsel.
Garney Morris and John Robinson, of Levittown, Pennsyl-
vania, for the Respondent.
Donald J. Kennedy, Business Manager, of Trenton, New Jer-
sey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on a consolidated unfair
labor practice complaint,1 issued by the Regional Director for
Region 4, which alleges that Respondent Garney Morris,
Inc.2 violated Section 8(a)(1), (2), (3), (4), and (5) of the
Act. More particularly, the consolidated complaint alleges
that the Respondent repeatedly interrogated its employees in
a hostile fashion concerning their union activities, promised
them better job assignments if they would reject the Union,
advanced their pay review dates and granted increases sooner
than they would normally be expected in order to induce em-
ployees to join the Union, promised company cars and as-
signments to better jobs in exchange for a rejection of the
Union, threatened to fire various employees and to close the
plant if the Union were selected, threatened to delay the
processing of a pending representation case in order to dis-
courage unionization, solicited employee complaints with a
view toward adjusting them, physically assaulted an em-
ployee because of his union sympathies, solicited employees
to sign a petition rejecting the Union, threatened to monitor
the work of employees who were union sympathizers with
special scrutiny, suggested to employees that they establish
an organization of their own to discuss wages, hours, and
terms and conditions of employment with the Respondent,
and met with an employee committee for the purpose of dis-
cussing such matters. The consolidated complaint also alleges
that the Respondent discharged or repeatedly laid off John
Hughes because he gave a statement to a Board agent inves-
tigating a charge, and that he discharged Hughes, Keith
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The General Counsel premises its allegation of a violation of
Sec. 8(a)(5) of the Act on 41 union designation cards which were
signed by unit employees on or before December 5, 1989, and re-
quests a bargaining order under the holding in NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969).
4 Errors in the transcript were noted and corrected.
5 The record in this case is somewhat confused by virtue of the
fact that Morris and Robinson acted alternatively as counsel for the
Respondent during the trial of the case. Neither is an attorney.
Raffa, Stephen Aldrich, Bruce Goulet, Michael Harrison, and
Jerome Quinn because of their union activities. The consoli-
dated complaint further alleges that, on and after December
5, 1989, the Respondent had a duty to bargain with the
Union as the representative of its full-time and regular part-
time mechanics, apprentices, and helpers3 but that it failed
and refused to do so and, in fact, made or threatened to make
several unilateral changes in working conditions without bar-
gaining. Among these unilateral changes were the use of a
new disciplinary warning form, discontinuance of contribu-
tions to a 401(k) retirement plan, and change of company
policy concerning payment of mileage incurred by employees
in driving their automobiles to jobsites. The Respondent en-
tered a general denial to these charges and states that the in-
dividuals named in the complaint as dischargees were fired
either for lateness or incompetence and slowness on the job,
or were laid off for lack of work. On these contentions, the
issues here were joined.4
FINDINGS OF FACT
A. The Unfair Labor Practics Alleged
The Respondent is an incorporated electrical contracting
business which is wholly owned and operated by its presi-
dent, Garney Morris. His immediate subordinate is the Re-
spondent’s vice president, John Robinson.5 The Respondent
has been in business for nearly 20 years and performs elec-
trical installation at jobsites throughout the metropolitan
Philadelphia area. On some occasions, it has also performed
contracts at more distant jobsites as well, including a contract
in California. It has always operated on a nonunion basis and
its employees have never had a collective-bargaining rep-
resentative. Although the size of its work force fluctuates, it
now has a complement of about 40–45 employees. That fig-
ure can and has increased considerably when large installa-
tion contracts have been undertaken. Respondent’s head-
quarters is on Emilie Road in Levittown, a suburb of Phila-
delphia.
The Union has its headquarters in Trenton, New Jersey,
and represents electricians in the construction industry in
southern New Jersey and southwestern Pennsylvania. Its
business manager, Donald J. ‘‘Reds’’ Kennedy, and Garney
Morris have known each other for some time. In fact, at one
time before the events in this case arose, Kennedy had asked
Morris to sign a contract with the Union, but Morris refused.
This request was made late in 1988 when Kennedy supplied
Morris with five or six union electricians under a so-called
letter of assent to work for a double-breasted company oper-
ated by Morris. About January 1, 1989, he told Morris that
he would have to sign a contract or the Union would with-
draw its members from his projects. Morris refused. It was
at that time that the Union decided to begin an organizing
drive among the Respondent’s employees.
Over a period of months, Kennedy was able to compile a
partial list of names and addresses of company employees
with the assistance of certain of the Respondent’s employees
who were in sympathy with the Union’s effort. On October
l9, 1989, Kennedy sent individually typed and addressed let-
ters to each employee for whom he had an address. It read,
in part:
I have been talking to several of your co-workers
about the pay and working conditions you are presently
receiving from Garney Morris Electric. Some of their
complaints were:
1. Tools are in poor working condition.
2. Fringe benefits (no longer company paid), trav-
el pay and reimbursement for gas.
3. Personal vehicles (not reimbursed for use).
4. Pay scale (not a set pay scale).
5. Not a very good training program.
6. Job security (everyone is afraid to express
themselves for fear of losing their jobs).
These complaints are not new to the electrical con-
tracting industry. The Union has found the solution to
these problems by being able to negotiate a contract
that establishes wage scales, fringe benefits, and work-
ing conditions.
. . . .
Wages, a Journeyman Electrician now earns $23.56
per hour, a foreman is given a 10% premium above the
journeyman. Everyone receives hospitalization, two
pension plans, and an annuity plan. WAGES AND
BENEFITS ADD UP TO A SUM OF $29.80.
If you find your pay too little, the benefits lacking,
and your working conditions less than desirable, maybe
you should join a union.
One of the recipients of this letter was Garney Morris Jr.,
son of the owner, who was working for his father as an ap-
prentice. Garney Morris Sr. testified that the mailing of this
letter was the first indication he had received that the Union
was interested in organizing his Company.
Shortly thereafter, Morris convened an evening meeting of
his employees at the Holiday Inn in Bristol, Pennsylvania. It
was the first of two such meetings. About 50–60 employees
attended. Before the meeting began, Morris received from
Kennedy, in an envelope Kennedy had left for him at the
desk of the motel, a letter containing certain ‘‘do’s’’ and
‘‘don’ts’’ for a company experiencing an organizing cam-
paign. It was in the nature of a warning by the Union to the
Respondent’s management to observe the law and the rights
of its employees. Before meeting with bargaining unit em-
ployees, Morris held a separate caucus for management em-
ployees who were in attendance. He read to them the list of
‘‘do’s’’ and ‘‘ don’ts’’ he had received from Kennedy. He
asked them to keep careful notes of the proceeding and to
make an assessment of which employees each manager felt
were for the Union and which were against it. At a later
point in time, the managers compared their notes with Mor-
ris.
During the meeting, Morris told employees that he was
upset that they had taken their grievances to ‘‘Reds’’ Ken-
nedy and warned them that, as a result of this activity, the
107GARNEY MORRIS, INC.
6 They visited the Respondent’s Art Craft job at Tullytown, Penn-
sylvania, the Air Products jobsite at Menalpin, New Jersey, and
Henry’s own jobsite at Burlington, New Jersey.
7 Some employees who acceded to Henry’s request had their own
letters from Kennedy with them and signified their opposition to
unionization by signing these letters.
8 Henry testified that he had not intended to turn these forms over
to Morris and was not sure what he did with them. He opined that
the clerical employees in the company office may have forwarded
them to the main office with the weekly timesheets. They were ob-
tained by the General Counsel from the Company by a subpoena di-
rected to the Respondent to produce certain company files. Henry’s
testimony on this and many other items was preposterous and totally
unworthy of belief.
Company might not survive. A brief question and answer
session followed.
Late in October 1989, John Henry, the leadman and super-
visor of the Respondent’s U.S. Pipe job at Burlington, New
Jersey, took a day off and made a tour of four or five of
the Repondent’s jobsites. He was accompanied by Robert
Demi, a long-time employee and sometime leadman for the
Respondent. I credit the testimony of former Project Manager
Edmund F. Armstrong that Henry and Demi undertook this
mission at Morris’ request. They utilized a company car
which was at Henry’s disposal.6 Henry brought with him
some copies of Kennedy’s organizing letter which he had du-
plicated after blanking out the name and address of its origi-
nal recipient. During the course of his talks with men on
these jobs, he used these copies as forms to be signed by
anyone wishing to declare his opposition to the organizing
effort.
Demi and Henry spoke to a group at the U.S. Pipe job
which included Keith Raffa. Henry told employees that
Garney Morris was on vacation and that, when he returned
from his vacation, he was going to close down the business.
He stated further that if any employee did not sign one of
the papers he presented, that employee would not work after
Morris returned to the office. He also informed his listeners
that the signed papers would be presented to Morris to let
him know who was supporting him. Henry warned that, in
the event of unionization, Morris would close down the ex-
isting business and take a few loyal employees with him to
form another business. Raffa spoke up and said that he did
not want to sign one, whereupon Henry told him that he
would have to sign it before going back to work or else he
would not go back to work. An hour or so later, Henry sum-
moned mechanic William R. Warner to the Company trailer
at the U.S. Pipe jobsite and asked him if he was going to
sign the form. Warner replied that he still had the form with
him.7
On their visit to the Art Craft job, Henry and Demi told
employees the same things they had said elsewhere. They
asked employees to sign forms renouncing the Union, which
would then be given to Morris, and stated that if the Com-
pany went Union, Morris would close it down. At the Air
Products job, Henry and Demi repeated the same message
and again solicited signatures from employees renouncing the
Union. They told these employees that they should not go
with the Union because, if they did, they would be left with-
out a job. They also said that, if employees did not sign the
petition which was being presented to them, the Company
would close even if a majority of the employees voted
against the Union, asserted that Garney Morris could shut
down and open up under a new name without any union sup-
porters. At the end of the signature collection effort, Henry
and Demi obtained about 30 forms containing renunciations
of the Union. Demi’s letter contained the handwritten nota-
tion, ‘‘I never want to talk to you, Mr. Kennedy.’’ Henry’s
simply read, ‘‘—— em, Garn!’’8
The Union held a meeting for prospective members at its
hall in Trenton on the evening of November 3. At this time,
a number of the Respondent’s employees signed authoriza-
tion cards. Others took cards with them and mailed them in.
As more fully discussed, infra, by December 5, the Union
had in its possession a total of 41 authorization cards signed
by Respondent’s employees in a unit then composed of 73
full-time and regular part-time journeymen, apprentices, and
helpers. Early in January 1990, Kennedy phoned Morris and
asked for recognition. Morris refused.
On the evening of November 14, 1989, Morris held a sec-
ond meeting for employees at the Holiday Inn in Bristol.
Buffet dinner was served. The memo he circulated to all em-
ployees stated, ‘‘We can discuss any of your problems. Let’s
put this behind us.’’ Morris suggested that employees get to-
gether, form a committee of their own, and present their
grievances directly to him. Credited testimony of former Es-
timator Edmund F. Armstrong, who actively participated in
the ongoing effort to resist unionization at the Company be-
fore he was terminated, established that Morris followed up
this suggestion in the weeks to come by repeated requests to
management employees to get moving with the formation
and discussion with an employee committee, which took on
the name Outside Employees Committee. At the November
14 meeting, Morris also warned employees that closing down
was one of his options. Morris announced that salary reviews
would be moved forward so that pay increases would take
place sooner than they normally would under previous com-
pany practice, which called for a 90-day review of all new
employees and annual reviews thereafter. He also promised
that existing company cars would be made available to more
employees as additional cars were purchased. He referred to
the annual company Christmas party, assuring employees
that, despite rumors to the contrary, a Christmas party would
take place as usual. It was at this meeting that he said that
Keith Raffa had been coming to work late and had better
watch himself because he was on ‘‘thin ice.’’ Morris asked
his listeners ‘‘Let’s put our problems behind us. How many
of you support me?’’ In the course of the meeting, Fred
McRoberts, a partsman and truckdriver, asked employees for
a showing of hands to indicate which of them were behind
Garney Morris in opposing the unionization of the Company.
Morris inserted a notice to all employees in their pay en-
velopes on November 22, 1989. It referred to ‘‘personnel dis-
cussions’’ on November 14, 1989, the date of the second
meeting at the Holiday Inn and read, in part:
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Beginning Thursday, November 30, 1989, the new
leadman bonus schedule is as follows:
Single man on job .50 cents per hour
Leadman with one or
two men
.50 cents per hour
Leadman with three or
four men
.75 cents per hour
Leadman with five to
nine men
1.00 per hour
Leadman with ten to
fifteen men
2.00 per hour
Leadman with sixteen
and over men
3.00 per hour.
As in the past it is your responsibility to put either
L-50, L-75, L-1.00, L-2.00, or L-3.00 on your time card
under the job name. Do not put this on the four copy.
As in the past the leadman bonus will be paid at the
end of the month.
At one of his weekly staff conferences with management per-
sonnel, Morris observed that these raises would have to be
made to appear as if they had been planned before October
25 or the Company would be charged with making an illegal
promise to head off unionization. At one of these meetings,
Morris also urged management personnel to try to identify
union sympathizers. He said he had received some names of
union sympathizers directly from Local 269 as a ‘‘pay back’’
for favors that he had done for them in the past.
During the fall of 1989, various management employees of
the Respondent had personal conversations with employees
in which they voiced the Company’s opposition to unioniza-
tion. As they were leaving one of the meetings at the Holi-
day Inn, Company Estimator James Horan, in the presence
of Armstrong and mechanic Larry Schrager, said, ‘‘I’m tired
of this ll Union shit,’’ at which point Armstrong asked
Schrager, ‘‘You’re not for the Union, are you?’’ Schrager re-
plied that he was not in favor of the Union because he need-
ed his job. A few days later, at the Arrow Terminal in Phila-
delphia, Respondent’s scheduler Richard Scott told Schrager
that the Union was a stupid idea and that ‘‘Garney would
never go union.’’ He insisted that Morris would close down
before doing so. On another occasion in the shop at Levit-
town, Demi told Schrager to ‘‘back off’’ from the Union,
adding that Garney was not going to go Union and could
close the Company down and open up under another name,
in which event loyal employees would go to work for him
at his new company.
During a discussion with employee William A. Whalen
III, which took place in the driveway of the shop at Levit-
town in early November 1989, Morris told Whalen, ‘‘I have
great plans for you. I can’t say much because the union
[drive] is going on. You’ll be making $15 an hour some day
and leadman pay running a job. I don’t think you’d want a
Union because a union can’t guarantee you work like I can.’’
He also assigned Whelan to work at a prevailing wage job-
site at the Navy Yard, Boggs, and Princeton, where the hour-
ly rate was $23 rather than $15 because of the requirements
of the Davis-Bacon Act. In October 1989, at the Baldes Ma-
terial jobsite, Estimator and Project Manager Charles Steven-
son told mechanic David Schooley and mechanic Rich
Goshee that, as soon as this ‘‘union shit’’ blows over, certain
people who were organizing for Local 269 would be ‘‘taken
care of.’’ He mentioned the name of mechanic Steve Aldrich
in particular.
In the fall of 1989, mechanic John Hughes called the of-
fice and spoke with Scott concerning his schedule for the fol-
lowing day. In the course of this conversation, Scott told
Hughes that Garney had heard that he was for the Union. He
suggested to Hughes that he let Garney know his feelings as
soon as possible. The following day, Hughes went to the of-
fice and spoke with Morris. He told him, in an ambivalent
way, that Morris ‘‘didn’t have to be concerned’’ about how
Hughes felt about the Union. However, Hughes, a card sign-
er, did not admit to Morris that he supported the organiza-
tional campaign. At one of the company meetings which
took place at the Holiday Inn, Fred McRoberts told employ-
ees that, if the Company were unionized, there would be a
good chance of a layoff and job security would not be as
good. At a much later point in time, at the Hoeganese job
in Logan, Pennsylvania, Stevenson told Whelan and Esti-
mator John Schlack that he had come out to the Hoeganese
job to spy on Schlack and that Schlack was sent there to spy
on Whelan. During his visit to this jobsite, Stevenson cau-
tioned Whelan to ‘‘watch his back.’’ Whelan had been at-
tending classes which were a part of an IBEW apprenticeship
program. Stevenson said that the Company was trying to find
out if Whelan was doing his homework on the job, because
such activity could be considered engaging in union activity
during working hours.
At a staff meeting in October or early November, Morris
told the staff that he felt that Tucker Hurcaine, Keith Raffa,
and Steve Aldrich were union supporters and that he was
going to have them fired. He asserted that they were all
young and foolish and that this was a good time in their lives
to learn a lesson. Morris also noted that John Hughes and
Robert Burgman were union supporters and that Keith Raffa
was a schoolmate of Morris’ son. At the time of his dis-
charge on November 16, 1989, Raffa was working on the
U.S. Pipe job at Burlington, New Jersey, a job being run by
Henry.
In January 1989, Raffa had received an increase from
$5.50 an hour to $6.75 an hour, together with a commenda-
tion which was placed in his record by Robinson to the ef-
fect that ‘‘Keith is a diligent hard-working helper who is al-
ways on time and willing to work . . . his work has been
complimented by Gene Ennis, Charlie Stevenson, and other
mechanics.’’ He first heard about the organizing campaign
when he received a letter from Kennedy late in October
1989. Raffa went to union meetings and spoke favorably
about the Union to fellow employees. On November 9, 1989,
he signed an authorization card and mailed it to the union
hall. As noted previously, he refused to sign a letter rejecting
the Union when requested to do so by Henry, at which point
Henry threatened Raffa’s job.
Early in November, Raffa was summoned to a private
meeting in Morris’ office in Levittown. Raffa had not
worked the previous Sunday, as he was scheduled to do, and
was reprimanded by Morris for his failure to show up. Mor-
ris told him that he could fire Raffa for violating company
policy but was not going to do so. He then told Raffa, ‘‘I
am having trouble sleeping wondering why anyone would be
so unhappy that they would want a union in the company.’’
A few days later, Morris mentioned Raffa by name at the
109GARNEY MORRIS, INC.
9 Aldrich testified without contradiction that November 16 was the
first time he had ever seen a line drawn on a sign-in sheet at 7 a.m.
10 Harrison’s discharge was the subject of a charge in another case.
The charge was withdrawn, with the consent of the Regional Direc-
tor, as part of an out-of-Board settlement. The General Counsel is
seeking a finding in this proceeding that Harrison was
discriminatorily discharged not to provide Harrison with an addi-
tional remedy but in order to permit Harrison’s authorization card to
be counted in determining the Union’s majority status on a date ap-
proximately 1 month following the discharge.
11 There is some confusion in the record as to the classifications
of Respondent’s employees. Apparently it had class A, B, and C me-
chanics, as well as apprentices and helpers. There were four classes
of apprentices, each having a separate designation year depending on
how long he had been serving an apprenticeship. Respondent had no
Continued
second employee meeting at the Holiday Inn, saying, as
noted above, that Raffa was on ‘‘thin ice.’’
Raffa carpooled to his job at the U.S. Pipe project in Bur-
lington with Aldrich. On the morning of November 16, Al-
drich had a flat tire on the way to work. The two men called
the office trailer at the job to say that they would be late but
the phone was out of order. They arrived 5 minutes late and
signed in at 7:05 a.m. Henry did not see them arrive but
knew they were late because he had already drawn a line on
the sign-in sheet so that anyone arriving thereafter would be
identified as a latecomer. There were three other names on
the sheet following the signatures of Raffa and Aldrich.
About 7:35 a.m., Henry called Morris at the company of-
fice and reported that Aldrich and Raffa arrived late. Morris
told Henry to fire Raffa. Aldrich later received a warning for
lateness but there is no evidence of discipline of any kind
being meted out to any of the others who were late.9 About
11:45 a.m. Henry summoned Raffa to the construction trailer,
showed him the signin sheet, and told him that he was fired.
He indicated that Raffa could go to the office and talk to
Morris if he wanted.
When Aldrich heard about the discharge, he phoned Mor-
ris and told him that their late arrival was not Raffa’s fault,
explaining that the flat tire was on his car and the incident
was his fault. Morris replied that the question of Raffa’s dis-
charge was none of Aldrich’s business. Aldrich then ex-
plained that they had called the construction trailer to report
that they would be delayed by a flat tire, but the phone was
out of order. Morris retorted that they should have tried to
put a call through to another phone. (In another conversation
with Aldrich which took place later in November, Morris
told Aldrich that he had fired Raffa for something personal
and reiterated that the whole matter was none of Aldrich’s
business.)
When Raffa spoke with Morris on the afternoon of his dis-
charge, he asked him why he was being fired. Morris replied
that it was because he was late. Raffa argued that he had
been only 5 minutes late. Morris replied that Henry had re-
ported that he was 30 or 40 minutes late. Raffa insisted that
it was only 5 minutes and that it was not his fault, noting
that he and Aldrich had called in but the phone was not in
order. Morris said he knew the jobsite phone was out of
order but argued that there was a phone across the street
which they could have used. The argument went on. Morris
agreed that Raffa might be right and that the late arrival was
not his fault but, because Morris had already fired him, it
would look bad in the Company for him to reverse himself
because the people in the Company ‘‘think I am God’’ and
he did not want to look bad in their eyes by changing his
mind. He then told Raffa that he was going to make an ex-
ample out of him, that he was not going to take ‘‘the union
stuff,’’ and that he was not going to let the Union tell him
how he should run things.
Michael Harrison began working for the Respondent as a
mechanic in September 1989. His job application disclosed
that he had belonged to IBEW Local 439. During the course
of a prehire interview, Robinson referred to this fact and told
Harrison that he would have to check with Morris before hir-
ing him because of this fact. Robinson asked Harrison how
he felt about unions generally. Morris was on vacation at the
time. Harrison was hired after Morris came back from vaca-
tion. During his brief tenure of employment, he was com-
plimented on his work by several leadmen.
Harrison first learned of the union drive from Whalen at
the U.S. Pipe jobsite. He spoke favorably about unionization
to several employees, including Charles Stevenson. On Octo-
ber 31, Harrison signed a union card. He was one of several
employees to whom Henry and Demi spoke about declaring
their opposition in writing to the Union by endorsing a reply
to Kennedy’s membership solicitation letter. Harrision de-
clined to do so.
At the first employee meeting at the Holiday Inn, Harrison
spoke with Morris and asked him for a leadman’s job. Mor-
ris asked him what he was making and Harrison replied
$3.50 an hour. Morris told Harrison that anyone making that
kind of money should be able to run a job. Harrison told him
that he wanted to hear what the Union had to say and Morris
replied that he could understand that attitude.
After the meeting, during a conversation with other man-
agement officials relating to which employees were leaning
in which direction, Morris was heard to remark that he did
not trust Harrison. He said that Harrison had worked as a
union employee at Campbell Soup and, in a dispute which
had arisen, the Union had not supported him. Armstrong
credibly testified that an inspection of Harrison’s attendance
records was made in order to find a basis for discharging
him. Armstrong testified credibly that Harrison and others
were sent to a jobsite where the contractor insisted on drug
tests for all employees in hopes that Harrison would flunk
the test. He did not flunk it.
On November 6, Harrison had a flat tire on the way to
work and phoned Bruce Prendergast, the leadman on the job,
that he had a problem and would get at work as soon as he
could. When he arrived, Prendergast told Harrison that Scott
had visited the jobsite. He warned Harrison to ‘‘watch [his]
ass because they were out to get [him].’’ On the following
day, Harrison was late for work because of a delay in traffic
caused by the opening of a drawbridge. About 2 p.m. that
day, he was informed that Scott had phoned the jobsite to
say that Harrison was being discharged for lateness. The dis-
charge took place just before Harrison’s 90th day on the job.
On receiving news that he had been fired, Harrison went
to the company office and spoke with Morris. He complained
to Morris that he was being fired because he was prounion.
Morris replied that he was unaware of Harrison’s union sym-
pathies and was simply going on Scott’s recommendation.10
Aldrich himself was a class B mechanic.11 He was hired
in August 1988, and worked steadily for the Respondent
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formal apprenticeship training program. From time to time it sent
employees to take short-term specialized courses, such as how to
handle electrical work on toxic waste sites. Some of its employees
were even taking IBEW apprenticeship training classes. Any classi-
fication attached to an employee’s name did not designate a standard
pay rate, because the Respondent had no fixed scale and every em-
ployee had an individual rate.
12 I discredit Scott’s statement that Aldrich had told him during
their phone conversation that he would be unavailable for work be-
cause he would be ‘‘skiing and partying.’’
13 Several discriminatees were reinstated with backpay pursuant to
a settlement of unfair labor practice charges which took place in the
summer of 1990. However, this settlement agreement was never ap-
proved by either the Regional Director or anyone else authorized to
approve settlements, so it need not be formally set aside in order to
litigate the underlying charges.
14 The parties stipulated that Goulet was laid off January 9, 1990,
recalled July 12, 1990, laid off again on September 5, recalled a sec-
ond time on November 16, and laid off again on December 7.
15 The phrase ‘‘outside employees’’ refers to field employees
working at jobsites, as distinguished from office personnel employed
at the Levittown headquarters. The number eventually grew to six.
until he was discharged on December 21, 1989. The last sev-
eral months of his employment were spent on the aforemen-
tioned U.S. Pipe job, a 25,000-man hour project which lasted
for more than a year and on which, at one time, the Re-
spondent employed 40 men on 2 shifts. On November 16,
the date that Raffa was discharged, Aldrich received a form
from Morris which read:
As per my discussion at the 11–14–89 meeting and pre-
vious discussions your review date has been adjusted
from 4–27–90 to 1–27–90. Please mark your calendar
and call for an appointment in advance. I will then get
together with you, John Robinson, and Rich Scott.
Thank you.
During the organization campaign in the late fall of 1989,
Aldrich provided the Union with the names and addresses of
employees with whom he worked, as requested by Kennedy,
so that the Union could use them for its mail campaign. He
talked to various employees in order to interest them in join-
ing Local 269, passed out approximately 20 authorization
cards, and signed a card himself on November 6. Henry testi-
fied that Aldrich was one of the employees working on the
U.S. Pipe job whom he knew were making ‘‘disparaging
pro-union’’ remarks to others. Aldrich admits that he told
Henry that he was’’ 100% union. On one occasion Henry
asked Aldrich if the latter thought that ‘‘Garney would go
union.’’ Henry then made the statement that Garney would
never go Union and would close the shop first. On another
occasion, Supervisor Charles Stevenson told Aldrich that, as
soon as this ‘‘union shit’’ was over, certain people who had
been helping the Union organize should be ‘‘taken care of.’’
In December 1989, while the U.S. Pipe job was still in
progress, Aldrich was transferred by the Respondent to what
is referred to in the record as the Blades job in Baltimore.
It was a two-man job. On December 21, Aldrich was laid off
by Scott, who told him that the layoff was prompted by lack
of work. The Blades job had not yet been completed so
David Schooley was left in Baltimore to finish it. Aldrich
began looking for other work and, in so doing, came across
a want-ad which Morris had placed in the Philadelphia In-
quirer for industrial and commercial electricians. In mid-Jan-
uary, Aldrich received a call on a Wednesday from Scott in-
forming him that he wished to put Aldrich to work on the
following Monday. I credit Aldrich’s testimony that Scott
said that he would call him the following Sunday evening to
tell him where to report for work. Aldrich said that he would
be out of town and asked Scott to leave a message on
Aldrich’s answering machine. I credit Aldrich that Scott did
not call to leave any instructions on Sunday nor did he con-
tact Aldrich on any other occasion to tell him where to report
for work.12 Aldrich did not work for the Respondent there-
after until July 3, 1990, when he was reinstated following the
execution of a settlement agreement of an unfair labor prac-
tice charge that was filed on his behalf.13
Bruce Goulet had been a journeyman electrician for 8 or
9 years before coming to work for the Respondent in Octo-
ber 1989. He applied for work in response to a want-ad
which the Respondent had placed in the Levittown Courier-
Times. The ad solicited electricians having 5 years of indus-
trial and commercial experience. It stated: ‘‘We offer great
working conditions and benefits plus $500 bonus after 90
days of employment.’’
Goulet had been a self-employed electrician and was look-
ing for a job because he needed money to pay some back
taxes. He was interviewed by three management officials—
Tom Wysor, Robinson, and Morris. At that time, he made
them aware of the fact that he had been self-employed. He
also told them that, as a private employer, he had signed a
letter of assent with Local 269 which entitled him to hire
employees through the Union’s hiring hall. Although there
was no discussion during the interview concerning the pur-
chase from Goulet of his customer list, they did discuss the
fact that Goulet had some tools and equipment for sale and
the Respondent agreed to rent a pipe bender from him.
Goulet worked on the night shift at the U.S. Pipe job. He
distributed about 14 or 15 authorization cards on that shift
and, on November 7, 1989, signed a card himself. On or
about January 15, 1990, he was summoned to the office and
laid off, assertedly for lack of work. The layoff took place
87 days following the date of his employment. Two weeks
later, Goulet stopped by the office to collect some money
which the Respondent owed him for the rental of his pipe
bender. While he was speaking with one of the secretaries,
Morris walked up to Goulet, grabbed him by the shirt, and
yelled angrily, ‘‘you and ‘Reds’ Kennedy get the hell out of
my office.’’ Morris then escorted Goulet to the door. A
charge was filed on Goulet’s behalf which led to his rein-
statement on July 3, along with Aldrich.14
On December 27, 1989, Morris sent the following notice
to all employees:
I hope your Christmas was wonderful and that you
all will have a happy, healthy, New Year. I am looking
forward to the 90’s with you guys. I am hoping it will
be better than ever for all of us.
As discussed previously, we will have our first
monthly meeting of the New Year on Wednesday, Jan.
17, 1990. The meeting will be held at Charlie’s Place
on Rt. #l, Langhorne, at 6:30 pm.
I hope your group of 5 outside employees15 will join
us for dinner and conversation.
111GARNEY MORRIS, INC.
16 During this period of time, Hughes was off from April 17 to
May 10, from May 8 to June 11, and from June 13 to 15, from Sep-
tember 17 to October 3, from October 11 to 19, and from November
7 to 12.
If you have any questions, please feel free to call
me.
In January 1990, Kennedy called Morris, told him that he
had a card majority, and would like to negotiate and con-
clude a collective-bargaining agreement with him. Morris re-
fused. Kennedy explained that it was his practice to make
such calls before filing a representation petition. He filed a
petition on March 28, 1990, which has been blocked by the
pendency of the charge here. (Case 4–RC–17326.)
Early in January, a meeting of the Outside Employees
Committee took place at a church hall across the street from
the Respondent’s office. The hall is a place which the Re-
spondent has used from time to time for meetings in ex-
change for electrical maintenance work which it occasionally
performs for the church. Employees were notified of the
meeting by Scott, who told leadmen in the field when they
called in for routine job instructions to pass the word to em-
ployees that the meeting would take place. An estimated 20
employees attended, including Henry.
The meeting was conducted by employee Rich Goshee. He
asked employees to voice their complaints so that they could
be forwarded to Morris. At this meeting, a committee of six
was elected to represent employees. A vote was taken; two
each were selected from the ranks of the mechanics, the ap-
prentices, and the helpers.
The originally scheduled dinner meeting at Charlie’s Place
was postponed; instead, a breakfast meeting was held at the
Holiday Inn on February 6, 1990, which was attended by
Morris, several management officials, and the six-man em-
ployee committee. The committee had drawn up a list of 14
items that it wanted to discuss with Morris. These items were
drawn from complaints received from employees at the Janu-
ary meeting. They ranged from travel pay and gas reimburse-
ment to weekend overtime, paycheck delivery, and tools. The
parties did not get around to discussing all the items on the
committee list. Morris granted a few of the requests but re-
fused to make any changes concerning most of them. He
agreed to issue credit cards to certain employees for gasoline
purchases. He said he would attempt to provide paychecks
on Wednesdays for employees who were working out of
town, and he agreed to pay overtime for holiday work. Since
the conclusion of the breakfast, which the Respondent paid
for, no other meetings have ever taken place, either between
the committee and its members or the committee and Morris.
John Hughes was a mechanic who was hired on August
7, 1988. During the organizing campaign in the fall of 1989,
Hughes handed out union cards to fellow employees and, on
November 4, 1989, signed his own card. As noted above,
Morris on one occasion had indirectly asked him if he was
for the Union and Hughes responded with an evasive answer.
He attended the meeting of the committee, was elected to the
committee, and attended the breakfast meeting with Morris
at which employee grievances were discussed. In April 1990,
Hughes was working on the Oxford Valley job and was laid
off. He asked Morris for an assignment in May and was
given 5 days’ work, after which time he was laid off again.
He went to the office and spoke with Scott about working
on another job but Scott said that he had nothing for him.
While Hughes was in the shop, a leadman named Burgman
called in and asked Scott to assign two more men to a job
that Burgman was running. Hughes asked Scott for one of
the slots on Burgman’s job, but Scott simply replied that he
‘‘did not know.’’ A mechanic named Osher was then trans-
ferred from the job he was on to Bergman’s job. Hughes
then asked Robinson for work and was turned down. Some-
time later, Scott phoned Hughes and asked him if he would
be agreeable to working 1 day a week. Hughes said he
would do so if it would not affect his unemployment com-
pensation, so he was assigned to 1-day jobs in each of the
2 ensuing weeks and was given two other short-term assign-
ments.16
On April 30, l990, the Union filed a charge claiming that
Hughes and another mechanic, Al Cotrell, had been laid off
for discriminatory reasons (Case 4–CA–18863). On June 25,
an amended charge was filed in the same case but naming
only Hughes as a discriminatee. Early in July, Hughes was
summoned to the Company’s office where he spoke with
Morris and Scott. Morris told him that he knew that he had
filed a charge and an amended charge against the Respond-
ent. He complained that he did not know why Hughes had
filed these charges because no one had treated him unfairly.
Morris went on to say that every time his lawyer talks to a
Board agent about a charge it costs him $206 an hour, and
every time someone files a charge it also costs him money.
He asked Hughes why the latter had not come to Morris and
talked to him about his complaint rather than taking his case
to the NLRB. Hughes responded that he did come in on a
couple of occasions to talk with Morris, but that Morris was
not around. Morris excused himself by saying that he had
been out of the office trying to get work for the Company
when Hughes came in. Morris then asked Hughes why he
was not at work that day. Hughes explained that Scott had
assigned him the previous evening to the Portion Packaging
job at Bristol. Hughes’ car was in the shop so he had ar-
ranged for a ride to the jobsite with another employee, Brian
Clattenburg. Scott then changed the assignment and told him
to report instead to a job in northern New Jersey. Hughes ob-
jected, saying that he had no car, so Scott suggested that he
arrange for a ride with a mechanic named Steve Takas.
Hughes was not able to reach Takas and tried to phone Scott
to inform him of the problem but could not reach him. Mor-
ris faulted him for not making greater efforts, telling Hughes
that he should have gotten up at 5 a.m. and kept on making
phone calls until he found a ride.
In August 1990, Hughes was again laid off, this time from
the Permacel job. He went to the office and complained
about the layoff to Robinson, asking the latter why he had
been laid off when men with less seniority had been retained.
Robinson said that it was not any of his business and told
him to ‘‘get the hell out of the office.’’ He came back to
work for the Respondent in the fall of 1990 on the Hydro-
carbon job. Scott had called to inform him about the job. He
told Hughes that it was a long-term project, and that he
would be working there until he retired from the Company.
Hughes worked at the Hydrocarbon job for 1 day and was
again laid off. When he asked Scott the reason for the layoff,
Scott replied that the leadman, Nick Dippolito, did not want
him on the job because of his ‘‘bad attitude.’’ Morris admit-
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ted at the hearing that, during periods when Hughes was on
layoff status, the Respondent had transferred employees with
less seniority from one jobsite to another, even though
Hughes was available for recall to the openings in question.
In addition to the layoff, Hughes was given a warning slip
on the Respondent’s new employee warning report form
which read:
Nick Dippolito at the Hydrocarbon job called on 11–6–
90 and asked me to send someone else. He didn’t want
John back, stating that he had a bad attitude. He was
even afraid this would affect his performance on the
job.
Hughes wrote on the form:
I did not have a bad attitude and worked to the best
of my ability. Nick said my work was fine.
At the same time, Hughes was given a second warning on
the Employer’s new warning form which read:
Breaking Co. rules.
1) No call or no show by 10:00 am on 11–5–90
2) Scheduled off but was told to call in the am in
case there was work.
3) After (2) calls from me to John 1) 9:30 2) 10:30.
Didn’t hear from John till late afternoon. Asked him
where he was. He told me it was none of my business.
On this warning report, Hughes wrote:
I was scheduled off and I can’t afford to wait for pos-
sible work. Every other time I called in and there was
never work.
The form contains a place for the employee to sign indicat-
ing ‘‘I have read this ‘warning decision’ and understand it.’’
Hughes refused to sign his name under this statement on ei-
ther warning report.
A few weeks later, Hughes went to work on the Dynatec
job. On this job, he received a third warning report, purport-
edly initiated by Schrager and Goshee, dated 12–3–90, which
read:
Recently on two projects the leadmen have informed us
of your lack of productivity. You are hereby informed
of this feedback and I request that for whatever reasons
that you have lost your former productivity you get it
back and become the productive employee you are ca-
pable of being.
On this warning report form, Hughes wrote:
During the past 2-1/2 years I have worked here I have
always been a productive worker. I am as productive
now as I have always been. I believe this warning is
because of my union activity and this is a retaliation.
Scott asked Hughes to sign this form and he refused, say-
ing the complaint was a total farce. He said that he had
never before had a problem with either Goshee or Schrager.
He accused Goshee of being very antiunion and said that
Schrager was just out for personal gain. Scott called Robin-
son on the phone and reported that Hughes had refused to
sign the form. He handed Hughes the phone and the latter
spoke directly with Robinson, who told Hughes that, if he
did not sign the employee warning form, he could not go
back to work. Hughes persisted in his refusal to sign the
form and left the office.
Hughes returned to the office 2 days later to sign the
warning form. While he was waiting to see a company offi-
cial, Morris came by and told him that no one was trying
to ‘‘break his balls.’’ However the Company had to start
keeping a written record of everything because of ‘‘every-
thing that was going on.’’ He urged Hughes to reconsider
and to sign the form, repeating earlier statements that, if
Hughes did not sign the form, he would not return to work.
On December 5, 1990, Hughes signed the form containing
the third warning. A month later, he received a fourth warn-
ing, dated 1–24–91, which read:
Time card not turned in by Thurs 9 am on 1–24–91.
Gave J. Hughes a copy of this warning and a copy of
pg. 3 and 4 of co. rules on 1–24–91.
Hughes’ response was that this was just more blatant harass-
ment because of his union activities. Hughes had never be-
fore received a warning on two or three occasions when he
was late in turning in his timecard.
Concurrently with the events recited above, the Respond-
ent has persistently refused to recognize and to bargain with
the Union. However, it has, from time to time, made changes
in its operations relating to employee compensation and other
matters. As noted before, in July 1990, the Respondent began
using a new and different disciplinary warning form. For
years it had utilized an internally generated document which
read:
OFFICIAL NOTIFICATION FROM THE OFFICE OF
GARNEY MORRIS, INC.
Name: llllll Date: llllll
Due to the regulations concerning safety, unemploy-
ment compensation, disability insurance, workman’s
compensation, company rules, etc., this has been en-
tered into your personnel file:
[ ] Informal Warning # 1, 2, 3
[ ] Warning # 1, 2, 3
[ ] Reprimand # 1, 2, 3
Reason:
Issued By: lllllll llllllll
John Robinson Richard Scott
Approved by: llllllllll
President
lllllllllll
Vice - President
In its place, another more elaborate form was instituted. It
included a checklist of violations, containing a place for
‘‘company statement’’ in which a narrative description of the
violation of company policy could be outlined. There was
also a place on the form where the employee could recite his
version of the incident or alleged infraction and sign his
name. Thereafter, the form contained a section where the
113GARNEY MORRIS, INC.
17 Part of the proposed agreement was that the Respondent would
agree to recognize and bargain with the Union, if, on examination
of the cards by an FBI handwriting expert, it could be determined
that the signatures of a majority of unit employees were valid. The
FBI verified 32 signatures but felt that the evidence of validity of
the other signatures was inconclusive. Their validity was established
at the trial in this case by the testimony of the individual card sign-
ers.
Company could recite its ‘‘warning decision,’’ after which
the employee who received the ‘‘warning decision’’ was
called on to sign his name under the legend which read: ‘‘I
have read this ‘warning decision’ and understand it.’’
In explaining his reason for making the change, Morris
wrote the Regional Office in the course of the investigation
of the charge:
At times employees were just given a copy of the
[previously used] notice in their paycheck and at times
they were called in to discuss the violation and then
given a copy in their paycheck.
After several employees expressed that the violation
was not entirely correct and that they wished that they
had a chance to refute or agree with the notice before
it went into their employee file, we purchased the
‘‘Employee Warning Report’’ and began to use them in
July 1990. Now any employee who is reprimanded in
writing must come into the office, read the warning and
either agree or disagree with the charge and sign the
warning accordingly.
I felt that this system was completely fair because a
person has the chance to give his side of a story and
to correct or even have the charge dismissed. It seems
to me that my efforts to treat employees fairly have re-
sulted in an unfair labor practice charge.
With regard to the change in disciplinary forms, Scott told
Hughes that they had been implemented ‘‘because of every-
thing that has been going on’’ and because the Company
needed to keep records of these matters.
Late in October 1991 the Respondent made two changes
in its compensation package. They were set forth in a notice
distributed to all employees on October 24, 1991, which
read:
Beginning today we must all begin to really tighten
our belts. As you know, the economy is very poor, our
work load is very light and unemployment in this coun-
try is again on the rise. In order to keep as many men
working as possible we must temporarily stop the com-
pany contributions to the 401K and eliminate gas and
toll benefits to employees who are driving their per-
sonal vehicles. I hope you will all try your best to car
pool with employees who have company vehicles.
For those with company vehicles, make sure you fol-
low all of the gas rules and mark all gas slips as di-
rected (especially with the vehicle number).
. . . .
These cost cutting measures will go into effect Octo-
ber 24, 1991.
NOTE: There will be exceptions to the gas rule. How-
ever, they must be cleared through Cathy in payroll be-
fore the exception occurs.
In his testimony, Morris explained that, as of the time of the
hearing in July 1992, the Company was still not making con-
tributions to the 401(K) plan but was considering a resump-
tion of such payments. He also explained that the Company
was still making gas payments to employees who carpooled
and had not in fact discontinued making toll bridge reim-
bursements.
Jerome E. Quinn was hired by the Respondent in 1988 as
a class A mechanic. At the time of his discharge on June 28,
1991, he was making $14.25 an hour. Under circumstances
not apparent from the record, he was restored to the Re-
spondent’s payroll sometime later and, at the time of the
hearing, was employed as a truckdriver at an undisclosed rate
of pay.
During the Union drive in the fall of 1989, Quinn passed
out union cards to other employees and, on November 7,
1989, signed his own card and mailed it in to the union of-
fice. His son, Thomas Quinn, was also employed by the Re-
spondent and signed a union card the day after his father did.
On November 21, 1990, Jerome Quinn received a merit in-
crease of 75 cents per hour.
In April 1991, J. Quinn happened to be in the company
office in Levittown. During the course of a discussion be-
tween employees Whalen, William Gosser, and himself,
Morris thanked both J. Quinn and Gosser for doing a good
job on the Allied project to which they had been assigned
in Baltimore. J. Quinn had received OSHA training for work-
ing on toxic jobsites and had been assigned to the Allied
project for this reason. Following that discussion, Morris told
Quinn that he had lost $700,000 on the U.S. Pipe job but,
by September 1991, he would be out of debt and would have
sufficient funds to fight the Union. Morris told Quinn that
he could appeal his case four times and keep it in litigation
for 3 or 4 years, adding that, ‘‘if the Union thinks it’s going
to get in here, they are going to have a long wait.’’ An un-
fair labor practice hearing on pending cases was scheduled
for May 6, 1991. The hearing never took place. Instead, a
settlement was arrived at, pursuant to which the General
Counsel disclosed the authorization cards in his possession
on which he was relying in order to establish the Union’s
majority status. In the course of this disclosure, it was re-
vealed that Quinn had been a card signer.17
In the following month, Quinn was assigned to work at a
jobsite in New Jersey. During a discussion with Henry con-
cerning this job, Henry told Quinn that, if Morris went
Union, he would keep his four top mechanics. He asked
Quinn if the latter thought that he was one of them and
Quinn replied in the negative. Henry went on to say that
Morris would get rid of his other mechanics and they would
be on the outside looking in. Henry also told Quinn that
Morris would have enough money to fight the Union as soon
as he got out of debt. Quinn replied that he did not care
about the Union because he was going to retire in a few
years. At or about this same point in time, Robinson had oc-
casion to speak with Quinn at the company office and told
Quinn that he had received reports from various leadmen that
Quinn was taking too long to perform his assignments. He
told Quinn to speed up his pace.
Quinn and Henry had been sent to a job for the First
Prince Corporation at Freehold, New Jersey. Henry was des-
ignated as leadman. While on that job, the customer’s elec-
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Armstrong testified credibly that the Respondent’s management
had included McRoberts at their antiunion meetings so they could
use the services of a nonsupervisor to do and say things that super-
visors are forbidden by law to do.
trical technician complained to Henry that Quinn was stand-
ing around, doing nothing, and asked Henry to send another
man to the job the following day because the customer was
under a time constraint in finishing the job.
Quinn experienced some difficulties with customers in
June. He was sent to hook up a conduit and wiring on a pro-
duction line at Pre-Mix Industries. While on the job, Quinn
was having difficulties and sought the assistance of the cus-
tomer’s systems manager, who told him that, if he knew how
to wire the production line, he would not have contracted
with the Respondent to do so. The customer then called Scott
to complain and to request that the Respondent send a com-
petent employee to finish the job. The Respondent pulled
Quinn off the job and dispatched a replacement. In a follow-
up letter to the Respondent, the customer complained that the
job was quoted with a 2-day estimate but it took ‘‘your man
bumbling on the job’’ 4 days and he still had not finished
the assignment.
Late in June, Quinn was assigned to install the electrical
connections necessary to operate a water cooler at a swim-
ming pool in Lower Makefield Township. He was told to
seek out the pool superintendent and find out from him ex-
actly what needed to be done. When he arrived at the jobsite,
Quinn found that there were no parts available and had to
drive to an electrical parts store in Trenton to obtain the nec-
essary items to complete the job. A week and a half later,
Scott spoke with Quinn and complained that he had turned
in 5-1/2 hours on the swimming pool job when it should
have taken only 2 hours. In fact, the installation work did
take only 2 hours but the rest of Quinn’s time was spent
driving to and from the jobsite from the company office and
in going to Trenton to obtain the required parts. Quinn testi-
fied that Scott knew at the time of the dispatch that no parts
were available at the jobsite but were available at the com-
pany office. He had not informed Quinn of this fact and, in-
stead, had given him a purchase order to buy parts at a sup-
ply house. On June 28, Scott informed Quinn when he re-
turned to the office from a return visit to this jobsite that he
had no more work and that he had been taking too long on
jobs. He was laid off at this point.
B. Analysis and Conclusions
1. Supervisory and other agency issues
The Respondent admits only that the president of the
Company, Garney Morris, and its vice president, John Robin-
son, are supervisors within the meaning of Section 2(11) of
the Act. Confining the designation of supervisor to these 2
individuals would mean that between 40 and 80 mechanics,
located at jobsites throughout eastern Pennsylvania and
southern New Jersey, would have only 2 supervisors to over-
see their activities in any controlling and meaningful way.
Such a ratio is contrary both to Board precedent and to the
facts in this record.
One of the individuals in question, John Henry, was the
project foreman at the U.S. Pipe job in Burlington, New Jer-
sey, the largest undertaking the Respondent had ever placed
under contract. Under his control were 6 leadmen and 50
other employees. As the highest ranking employer represent-
ative on the premises, he spent most of his working time
doing supervisory work, including the daily assignment of
work to all employees and he maintained an office in the
Company’s onsite trailer. Although he could not hire a new
employee, he could remove an employee from the jobsite
and his recommendations for the discharge or discipline of
employees were routinely adopted. Plainly, Henry was a su-
pervisor within the meaning of the Act and should be ex-
cluded from the bargaining unit.
Edmund Armstrong, James Horan, Charles Stevenson,
Tom Wysor, and Richard Scott were all classified as esti-
mators. Their job was to obtain contracts for the Respondent
and to supervise, from the Respondent’s office in Levittown,
Pennsylvania, any jobs they obtained. Armstrong hired and
fired employees, Scott regularly and routinely assigned men
to jobs and transferred them from one jobsite to another, and
at least Armstrong, Horan, Stevenson, and Wysor could dis-
charge employees. They attended weekly management meet-
ings and, along with partsman Fred McRoberts,18 attended
several meetings of management staff with the Respondent’s
labor counsel during which they mapped out the strategy to
be used in resisting the Union’s organizing campaign. They
were all supplied by Morris with a list of ‘‘do’s’’ and
‘‘dont’s,’’ instructions for company representatives who were
engaging in antiunion activity. In the case of McRoberts,
such activity made him a nonsupervisory agent of the Re-
spondent. In the case of the others, such activity not only
conferred on them the status of nonsupervisory agents but,
when taken together with other indicia of supervisory author-
ity, reinforces the conclusion that they were statutory super-
visors for whose words and conduct the Respondent is vicari-
ously liable. I so find and conclude.
Jack Schlack was also a supervisor within the meaning of
Section 2(11) of the Act. Schlack was an estimator and su-
pervised work at various jobsites, including the Hoeganese
jobsite at Milton, Pennsylvania, and another jobsite in Cali-
fornia. He could assign work to employees working at these
jobsites and was responsible for seeing to it that the cus-
tomers at these jobs were satisfied. These factors make it
clear that the Respondent was also responsible for Schlack’s
words and conduct during the course of the Respondent’s
antiunion campaign.
2. Independent violations of Section 8(a)(1) of the Act
The Respondent violated Section 8(a)(1) of the Act by the
following statements and conduct:
(a) At the first meeting of employees held at the Holiday
Inn in Bristol, Pennsylvania, Morris expressed to the assem-
bled employees his displeasure that they had taken their
grievances to ‘‘Reds’’ Kennedy and warned them that, as a
result of their union activities, the Company might not sur-
vive. This statement was not a prediction of consequences
based on objective facts but a threat, similar to many which
were uttered by Morris and others at various times to various
employees, that the Company would be closed in response
to unionization. The threat was illegal and violated Section
8(a)(1) of the Act.
(b) John Henry, a supervisor, and Robert Demi, a me-
chanic, visited various jobsites in late October for the pur-
pose of soliciting employees to sign written renunciations of
115GARNEY MORRIS, INC.
the Union. They did so at Morris’ request, using a company
vehicle in the process, and were both agents of the Respond-
ent while carrying out this activity. On at least three different
jobs they asked employees to sign documents renouncing
their interest in unionization. These documents were to be
forwarded to company officials. Asking employees to dis-
close their union sentiments is coercive interrogation, espe-
cially when they are requested to place their positions in
writing. When such activity was undertaken in an organized,
systematic way, against a background of other forms of ille-
gal coercion, such interrogation violates Section 8(a)(1) of
the Act.
(c) When, in the course of this solicitation effort, Henry
told employees that Morris was going to close down the
business when he returned from his vacation, Henry uttered
a threat which violates Section 8(a)(1) of the Act.
(d) When, during the same effort, Henry told employees
that any individual who did not sign would be discharged
when Morris returned to the office, he uttered another threat
which violated Section 8(a)(1) of the Act.
(e) Henry’s specific threat to Raffa, who had objected to
signing the renunciation letter, that Raffa would have to sign
the document or he would not be allowed to go back to
work, was another violation of Section 8(a)(1) of the Act.
(f) When Henry summoned mechanic William R. Warner
to the trailer at the U.S. Pipe jobsite and asked him specifi-
cally if he was going to sign, Henry violated Section 8(a)(1)
of the Act.
(g) Henry’s statement, uttered at some jobsites during his
signature collection effort, that the Respondent would close
down the Company if employees did not sign the renunci-
ation letter even if they eventually voted not to unionize, and
his further threat that the Respondent would simply shut the
business down and open it up under another name were pat-
ent violations of Section 8(a)(1) of the Act.
(h) The Respondent held a buffet dinner for employees at
the Holiday Inn on November 14, 1989. The invitation from
Morris to employees to the Respondent’s employees sug-
gested that one of the purposes of the meeting was to ‘‘dis-
cuss any of your problems.’’ At the meeting, the Respondent
suggested that a committee of employees be selected to bring
employee concerns to the attention of management. This so-
licitation of grievances with a view toward adjustment during
an organizing campaign was a violation of Section 8(a)(1) of
the Act, and there is no doubt that Morris intended to adjust,
or at least to convey to employees his intention to adjust, the
grievances brought to his attention during this meeting.
(i) At the November 14 meeting, Morris again warned em-
ployees that one of his options was to close down the busi-
ness. A threat of this nature was a clear violation of Section
8(a)(1) of the Act.
(j) At the November 14 meeting, Morris announced that
annual pay reviews would be accelerated and promised addi-
tional purchases of company cars so that existing cars, nor-
mally used only by office personnel, could be made available
to field personnel as well. Previous to this meeting, Morris
told his management staff that he was aware that the prin-
cipal employee complaint which had brought on the union
effort was the slowness of pay increases. It is obvious that
his remarks at the November 14 meeting were aimed at
meeting a union objection to his pay practices. As such,
these promises constituted a violation of Section 8(a)(1) of
the Act.
(k) A week later, the Respondent circulated a written an-
nouncement that pay increases for leadmen, ranging from 50
cents to $3 an hour, would be implemented on or about No-
vember 30. Morris told a staff meeting that these raises
would have to be made so that they would appear to have
been planned before October 25. This pay increase was a
further response to the Union’s organizing effort and was a
violation of Section 8(a)(1) of the Act.
(l) At the November 14 meeting, McRoberts, in the pres-
ence of Morris and other supervisors, suggested to employees
that they make a showing of hands to indicate who supported
the Union and who did not. Asking employees to make a
public display of their union sympathies is a form of coer-
cive interrogation and inference with Section 7 rights which
violated Section 8(a)(1) of the Act. Morris also told employ-
ees, ‘‘Let’s put our problems behind us. How many of you
support me?’’ This question also violated Section 8(a)(1) of
the Act for the same reasons that McRoberts’ suggestion did.
(m) McRoberts voiced the opinion to employees at one of
the Holiday Inn meetings that there would be a good chance
of a layoff and that job security would not be as good if the
Company became unionized. Such statements constituted an
illegal threat by a nonsupervisory agent and a violation of
Section 8(a)(1) of the Act.
(n) At a staff conference, Morris asked his management
team to try to identify union sympathizers in the work force.
Asking supervisors to engage in surveillance of the union ac-
tivities of employees was a violation of Section 8(a)(1) of the
Act.
(o) Following one of the employee meetings at the Holi-
day Inn, Supervisor James Horan voiced strong opposition to
the Union—‘‘I’m tired of this ll union shit’’—and then
asked Larry Schrager if he was for the Union. Schrager re-
plied that he was not, because he valued his job. Such angry
interrogation violated Section 8(a)(1) of the Act.
(p) When, a few days later, Supervisor Richard Scott told
Schrager that ‘‘Garney would never go union’’ and that he
would close down the shop before doing so, he uttered a
clear threat which violated Section 8(a)(1) of the Act.
(q) When nonsupervisory agent Robert Demi told Schrager
to ‘‘back off’’ supporting the Union and that Garney would
never go union but would close down and open up under an-
other name, using only loyal employees, he uttered a threat
which violated Section 8(a)(1) of the Act.
(r) During the month of November, Morris told William
A. Whalen III that he had great plans for Whalen which he
could not disclose because of the union drive. However, he
stated that Whalen would someday be making $15 an hour,
plus leadman pay, and would be running a job. He added
that the Union could not guarantee Whalen as the Respond-
ent could. This promise of benefit was designed to persuade
Whalen to abandon his support for the Union and was a vio-
lation of Section 8(a)(1) of the Act. Not long thereafter, the
Respondent transferred Whalen to several prevailing wage
jobs where, because of the Davis-Bacon Act requirements,
the hourly wage far exceeded what the Respondent was pay-
ing on other jobs. This transfer was simply a part of the ef-
fort to provide Whalen with financial inducements which
would lead him to reject unionization. As such, it violated
Section 8(a)(1) of the Act.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(s) In October 1989, Supervisor Charles Stevenson told
Schooley and Goshee that, as soon as this ‘‘union shit’’
blows over, union sympathizers would be ‘‘taken care of.’’
He included mechanic Aldrich in his statement. This threat
to discharge union adherents was another flagrant violation
of Section 8(a)(1) of the Act on the part of the Respondent.
(t) Scott’s statement to Hughes that Garney Morris had
heard that he was for the Union constituted giving the im-
pression of surveillance of union activities in violation of
Section 8(a)(1) of the Act. His further suggestion that
Hughes let Morris know his true feelings as soon as possible
was an implied threat of reprisal and another violation of
Section 8(a)(1) of the Act.
(u) Supervisor Stevenson’s statement to Whelan at the
Hoeganese jobsite that he had come out there to spy on Jack
Schlack and that Schlack was there to spy on Whelan con-
stituted an admission of surveillance of union activities of
employees and a violation of Section 8(a)(1). Stevenson’s
further statement to Whelan to ‘‘watch his back’’ constituted
a threat of possible reprisal for engaging in union activities
in violation of Section 8(a)(1) of the Act.
(v) Stevenson also told Whelan that the Company was in-
vestigating whether he was doing his IBEW apprenticeship
homework during working hours because they wanted to
claim that he was engaging in union activities during prohib-
ited hours. This statement indicated that the Respondent was
seeking a pretext to discipline or discharge Whelan for union
activities and was a threat which violated Section 8(a)(1) of
the Act.
(w) At one of the meetings at the Holiday Inn, Morris told
the assembled employees that Raffa was on ‘‘thin ice.’’ The
reference was to a failure of Raffa to perform Sunday work.
This matter had been discussed between Morris and Raffa at
an interview during which Morris told Raffa that he was hav-
ing trouble sleeping at night because he was wondering why
anyone would want to bring a union into the Company. The
utterance at the general meeting, a meeting called for the
purpose of resisting the organizing drive, was designed to
threaten Raffa’s job publicly because of Raffa’s support for
the organizing campaign. As such, it violated Section 8(a)(1)
of the Act.
(x) Morris’ statement to Raffa during Raffa’s terminal
interview, namely, that he was not going to take ‘‘the union
stuff’’ and was not going to let the Union tell him how to
run things, was, in effect a statement to Raffa that the latter
was being discharged for union activities. Such a statement
violated Section 8(a)(1) of the Act, quite apart from the vio-
lation of Section 8(a)(3) for which it is primary evidence.
(y) Bruce Prendergast was the leadman on the job where
Michael Harrison was working at the time Harrison was dis-
charged. As such, he was the principal company representa-
tive on that job and, like all leadmen, a supervisor within the
meaning of the Act. Prendergast warned Harrison to ‘‘watch
[his] ass because they were out to get [him],’’ reciting the
fact that Scott had visited the jobsite at a time when Harrison
was not present because of Harrison’s delay in getting to
work. Such a threat, which was carried out on the following
day, was union related and constituted a violation of Section
8(a)(1) of the Act.
(z) Sometime after he had been laid off, Goulet went to
the company office and, while waiting to see Morris, en-
gaged in a conversation with Morris’ secretary. Morris took
exception to a remark relating to the business which he over-
heard Goulet making to the secretary, became enraged,
grabbed Goulet by the shirt, and told him ‘‘you and ‘Reds’
Kennedy get the hell out of my office.’’ Kennedy, the
Union’s business agent, was nowhere in the vicinity. Com-
mitting an assault on an employee because of his activities
on behalf of a union is an egregious violation of Section
8(a)(1) of the Act and is what happened in this instance.
(aa) In April 1991, in a discussion which took place with
Jerome E. Quinn at the company office, Morris told Quinn
that, as soon as he recouped the financial loss he had sus-
tained on the U.S. Pipe job, he would have sufficient funds
to fight the Union and would be able to appeal his case four
times and keep it in litigation 3 or 4 years. He punctuated
his remarks with the statement that, ‘‘if the Union thinks it’s
going to get in here, they are going to have a long wait.’’
A threat to engage in delaying tactics and to engage in pro-
tected litigation in order to defeat an organizing drive is a
violation of Section 8(a)(1) of the Act. It is such a threat that
Morris made to Quinn on this occasion.
(bb) Shortly thereafter, Henry had occasion to talk to
Quinn about the unionization of the Company. He told Quinn
that, in the event of unionization, Morris would keep his top
four mechanics and get rid of the others. He asked Quinn if
the latter thought that he was one of the Company’s top four
mechanics. When Quinn admitted that he was not, Henry
went on to say that the other mechanics would then be on
the outside looking in. These statements constituted a threat
to close the Company and to discharge employees in the
event of unionization and violated Section 8(a)(1) of the Act.
3. The Outside Employees Committee and the
allegation of a violation of Section 8(a)(2) of the Act
At the second meeting at the Holiday Inn, Morris sug-
gested that employees form their own committee to present
grievances and suggestions to him rather than resort to an
outside bargaining agent. In a post-Christmas letter to em-
ployees, he announced the holding of ‘‘our first monthly
meeting’’ of the Outside Employees Committee and manage-
ment for January 17 at a designated restaurant. In that letter,
he urged employees to get on with the business of selecting
their representatives.
An organizational meeting of the Outside Employees
Committee took place across the street from the Respond-
ent’s office at a church which the Respondent had used from
time to time for company meetings. Attendance was recruited
by Scott, who asked leadmen to inform employees of the
time and place of the meeting. About 20 attended, including
at least 1 supervisor, John Henry. At this meeting, represent-
atives were selected and a list of proposals were drawn up
for presentation to management.
The meeting originally scheduled for January 17 was post-
poned until early February and took place in the format of
a breakfast attended by six employee representatives and sev-
eral management representatives, including Morris. Morris
set up the breakfast meeting and paid for the food that was
served. At this meeting, a long list of proposals was made
by employee representatives which touched on almost every
major facet of wages, hours, and terms and conditions of em-
ployment. After it was presented, Morris turned most of them
down but did agree to two or three requests. After the break-
fast meeting concluded, no further activities were engaged in
117GARNEY MORRIS, INC.
by the committee and no further meetings were held by its
representatives with management.
These facts make it clear that it was Morris, not rank-and-
file employees, who initiated the idea of an Outside Employ-
ees Commitee and that it came into being by virtue of his
repeated prodding of employees to proceed with the project.
When employees were selected and met with Morris, the top-
ics of their conversation were just the items that would be
part of any contract negotiation. The committee acted as a
labor organization, it was formed at Morris’ request, and
came into being only by virtue of his efforts. He both domi-
nated and assisted the committee from its inception. Accord-
ingly, the Respondent, by virtue of his acts and conduct, vio-
lated Section 8(a)(2) of the Act.
4. The discharges or layoffs of Harrison, Raffa,
Aldrich, Goulet, Hughes, and Quinn
a. Michael Harrison
Harrison was hired by the Respondent in September 1989.
He disclosed to Robinson, who interviewed him, that he had
been a member of an IBEW local other than No. 269. Robin-
son’s reaction was to tell Harrison that he would have to
clear his application with Morris before he could be hired.
After Harrison was hired, he told Morris that he was inter-
ested in hearing what Local 269 had to say. He also refused
to sign a letter, presented to him by Henry, renouncing the
Union. Shortly thereafter, Morris told members of his man-
agement team that he did not quite trust Harrison.
Harrison signed a Local 269 authorization card and was
discharged within a few days after doing so. Armstrong
credibly testified that efforts were made to place Harrison at
jobsites where prime contractors would require drug screen-
ing, in the hope that Harrison would not pass such a test and
the Respondent would have a basis for discharging him. The
day before he was discharged, the leadman on the job
warned Harrison to ‘‘watch his ass.’’
On or about November 7, Harrison was late to work be-
cause he had been delayed in his commute by the opening
of a drawbridge. It was for this tardiness that he was assert-
edly released, although there is ample evidence in the record
that the Respondent regularly tolerated lateness on the part
of its field employees, on some occasions as much as 10 or
20 times. Harrison went to the company office and spoke
with Morris, accusing Morris of firing him because he was
prounion. His complaint had merit. Harrison’s discharge was
marked by all the elements of a discriminatory discharge—
intense animus, company knowledge, abrupt timing, and a
pretextual reason which singled out Harrison for disparate
treatment. Accordingly, I conclude that Harrison was dis-
charged in violation of Section 8(a)(3). The General Counsel
requests no remedy respecting Harrison and none will be rec-
ommended. I will include Harrison in the bargaining unit as
of December 5, 1989, the date on which the General Counsel
alleges that the Union had majority status, and I will include
Harrison’s card among those being counted toward that ma-
jority. Air Express International, 245 NLRB 478 (1979), and
cases cited there at 501.
b. Keith Raffa
Raffa was an apprentice who had worked for the Respond-
ent slightly more than a year when he was dicharged on No-
vember 16, 1989. He was a friend of Morris’ son, Garney
Morris Jr. and was his schoolmate before coming to work for
the Respondent. During the period of time he was on the Re-
spondent’s payroll, he had progressed from $5.50 an hour to
$6.75 an hour and had received a commendation, dated Janu-
ary 1989 and signed by Robinson, to the effect that he was
a diligent, hard-working helper, ‘‘who is always on time and
willing to work.’’
The Respondent’s view of Raffa changed quickly and dra-
matically after Raffa became involved in the Union’s orga-
nizing drive. Raffa attended a union meeting in early No-
vember, signed a card, and later refused to sign a letter pre-
sented to him and others by Henry renouncing any interest
in unionization. He repeatedly promoted unionization in con-
versations with other employees on the jobsite at U.S. Pipe.
The Respondent knew Raffa was prounion. Morris included
him in a verbal list of young employees who were foolish
enough to join a union and who, in his opinion, needed to
learn a lesson. Within a week or two proceeding the dis-
charge, Morris called Raffa into the office, reprimanded him
for not showing up for work on Sunday, as scheduled, and
told Raffa that he was having trouble sleeping at night trying
to figure out why anyone would want a union to come into
the Company. At the second Holiday Inn meeting, Morris
stated publicly that Raffa was on ‘‘thin ice.’’
The thin ice cracked a day or two after that meeting. Raffa
and his commuting companion, Steven Aldrich, were late to
work by 5 minutes because Aldrich’s car had a flat tire.
They called the jobsite to say they would be late but the
phone was out of order. For this offense, Raffa, who had
been commended earlier in the year for his punctuality, was
discharged, although Aldrich, who was in pari delicto, was
not. When Aldrich took up the cudgels for Raffa and told
Morris that their late arrival was his fault, not Raffa’s, Mor-
ris snapped that the whole question was personal and none
of Aldrich’s business. When Raffa protested his discharge di-
rectly to Morris, Morris told him that he was going to make
an example out of him, was not going to take ‘‘the union
stuff,’’ and was not going to let the Union tell him how to
run his business. Morris’ remarks provide a rarity in Board
practice, namely, direct evidence of the discriminatory intent
prompting a discharge. On this occasion, I will take Morris
at his word and find that, by discharging Raffa because of
his union activities and union sympathies, the Respondent
here violated Section 8(a)(3) of the Act. For reasons stated
above with regard to Harrison, Raffa’s card should be count-
ed toward the Union’s majority status as of December 5.
c. Stephen Aldrich
Aldrich had worked for the Respondent as a class B me-
chanic for about 16 months when he was laid off on Decem-
ber 21, 1989. During the course of the organizing drive, he
provided the Union with the names and addresses of employ-
ees to be solicited, passed out about 20 union cards, and
signed a card himself. He worked on the U.S. Pipe job under
Henry’s supervision and direction. Henry testified that Al-
drich was one of the employees on that job who was contin-
ually promoting the union cause and disparaging the Com-
pany. Aldrich repeatedly told Henry that he was ‘‘100%’’
union.
On November 16, 1989, Aldrich received the following
memo from Garney Morris with his paycheck:
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To: Steve Aldrich
Date: 11–16–89
As per my discussion at the 11–14–89 meeting and
previous discussions your review date has been adjusted
from
4–27–90 to 1–27–90
Please mark your calendar and call for an appoint-
ment two weeks in advance. I will then get together
with you, John Robinson, and Rich Scott.
Thank you.
In mid-December, Scott told him that he was being laid
off. This was the last time that Aldrich ever worked for the
Respondent. The reason given by Scott for the layoff was
lack of work. At the time Aldrich was laid off, the Company
was still utilizing the services of temporary help that had
been supplied by a labor service and by other contractors. It
was also advertising for industrial and commercial elec-
tricians in the Philadelphia Inquirer. Aldrich credibly testi-
fied that there was enough remaining work on the particular
job to which he had been assigned to last beyond Christmas.
Sometime in January, Aldrich received a phone call from
Scott on a Wednesday informing Aldrich that he wanted to
put him back to work the following Monday. Aldrich told
Scott that he would be out of town for the weekend but
asked Scott to call his home on Sunday evening and put on
his answering machine the necessary information as to where
and when to report. Scott never placed that call nor did he
ever phone Aldrich again to call him back to work volun-
tarily. (Aldrich was reinstated in July 1990 pursuant to a set-
tlement of an unfair labor practice charge.)
In the case of Aldrich, the Respondent was faced with a
union activist of known proportions. Its original reason for
laying him off was pretextual, in that it had work available
and was keeping on its payroll temporary employees drawn
from an agency and from other contractors in place of a
grade B mechanic to whom it had recently promised an ac-
celerated wage review. Its activity in purporting to recall him
a month later was nothing but a runaround, as evidenced not
only by an offer of employment which never materialized
but also by the fact that in nearly 5 months which elapsed
since the purported recall, it did not contact him concerning
a return to work until it was forced to do so. In light of these
considerations, it is plain that the Respondent discharged Al-
drich because of his union affiliation and activities in viola-
tion of Section 8(a)(3) of the Act and not because of any
shortage of available work.
d. Bruce Goulet
Goulet had been self-employed in the electrical trade and
came to the Respondent’s office looking for a job in re-
sponse to an ad which offered, among other things, a $500
bonus after 90 days of employment. He was hired in October
1989, and assigned to the night shift at the U.S. Pipe job,
the largest project on the Respondent’s books. During the
course of the hiring-in interview, the Respondent learned
that, while operating his business, Goulet had obtained a let-
ter of assent with Local 269 which authorized him to hire
union craftsmen under union contract provisions without for-
mally entering into an ongoing contractual relationship with
Local 269. I credit Goulet’s statement that, on coming to
work for the Respondent, the parties discussed the fact that
Goulet had a pipe bender which was available for rental but
that no other discussion occurred relating to his history or
status as an entrepreneur. I also credit Goulet’s testimony
that no limitation was placed on his tenure of employment
and that the job which was offered by the Respondent was
a permanent one, notwithstanding the fact that Goulet was
laid off after his 87th day of employment.
While on the U.S. Pipe job Goulet signed a union author-
ization card dated November 7. The Respondent contends
that the card should not be used to determine the Union’s
majority as of December 5 because Goulet was a temporary
employee and not properly includable in the bargaining unit.
There is nothing in the record which supports the Respond-
ent’s contention that Goulet was hired on a temporary basis
so I will include his card in determining the Union’s majority
status as of December 5, a time when Goulet was working
regularly at the U. S. Pipe job.
Goulet’s layoff presents a situation in which an employer
who has repeatedly demonstrated not only animus but a pro-
clivity for taking illegal action designed to frustrate an orga-
nizing drive laid off an employee who has engaged in union
activities and who was known to have dealt with the Union
in the past. Moreover, it was attended by the false claim that
Goulet’s employment was only temporary in character, a
claim which also serves to assist the Respondent in diminish-
ing the Union’s majority status. When Goulet visited the
company office after his discharge to obtain payment for
equipment rental, he was met with the wholly irrational and
irate statement by Morris that he and Union Representative
‘‘Reds’’ Kennedy should ‘‘get the hell’’ out of the office, a
statement demonstrating Morris’ personal hostility toward
Goulet as a union sympathizer. This statement then led to an
assault during which Morris physically removed Goulet from
the office. In light of these factors, I conclude that Goulet
was discharged because of his membership in and activities
on behalf of the Union in violation of Section 8(a)(3) of the
Act.
e. John Hughes
John Hughes started to work for the Respondent on Au-
gust 7, 1988. By August 1989, he had become an A me-
chanic. After the organizing began, Scott told him that he
should let Morris know that he was not for the Union be-
cause Morris felt that he might be. He urged Hughes to
speak with Morris on the subject as soon as possible. When
he went to Morris’ office, Hughes gave Morris an ambiguous
statement about his feelings, saying that Morris ‘‘did not
have to be concerned’’ about how Hughes felt toward union-
ization. Hughes signed a union card on November 4, 1989,
and distributed cards to other employees. The Respondent
had more than an inkling of Hughes’ union sympathies ac-
cording to Armstrong, who testified that Hughes was taken
off the work assignment list because of his union activities.
Hughes attended the meeting of the Outside Employees
Committee which was held in the church across the street
from the Respondent’s office and, during the course of the
meeting, was elected to the six-man committee. He attended
the breakfast meeting in February which Morris held for the
committee during which employee grievances were pre-
sented.
119GARNEY MORRIS, INC.
19 Scott asked Hughes if he would agree to taking short-term as-
signments. Hughes replied that he would do so if that was the best
he could get, provided such assignments would not interfere with his
eligibility to collect unemployment insurance.
20 On November 21, 1990, Quinn received a merit increase from
$13.50 to $14.25 an hour. Robinson and Morris signed a personnel
and payroll slip, which was placed in Quinn’s record, that read,
‘‘Thank you for your help at Allied this past year. Keep up the good
work.’’
In April 1990, Hughes was laid off at a job in Oxford Val-
ley and asked Morris for an assignment. He received 5 days’
work and was laid off again. He complained to Scott about
being laid off when leadmen were calling the office asking
for mechanics. He was given only occasional 1-day assign-
ments, notwithstanding his complaint.19 On April 30, 1990,
a charge was filed on his behalf. It was amended 2 months
later. Morris spoke with Hughes about the charge, criticized
him for filing a charge rather than presenting his grievance
to Morris directly, and complained that charges and litigation
before the Board were costing him money. Throughout the
ensuing several months, Hughes was given only short-term
assignments, being hired and laid off with great rapidity up
to and including November 12. On one occasion, when he
came to the office to complain directly to Robinson, Robin-
son told him to ‘‘get the hell out of the office.’’ In Novem-
ber, Hughes was assigned to the Hydrocarbon job, one which
he was told would be a ‘‘lifetime job.’’ He lasted 1 day and
was removed, assertedly because the crew leader said that he
had a ‘‘bad attitude.’’ In labor relations jargon, the phrase
‘‘bad attitude’’ is frequently found to be a code word for a
prounion attitude. In this case, Hughes testified credibly that
the foreman in question had made no complaint to him about
his attitude, and the foreman in question was never sum-
moned to substantiate the Respondent’s story. Morris admit-
ted that, while Hughes was in layoff status, he frequently
transferred employees with less seniority from one job to an-
other rather than recalling Hughes, a practice at odds with
the Respondent’s announced practice of honoring seniority in
making layoff and recall decisions.
In short, a virulently antiunion employer directed its atten-
tion in this instance to a known union adherent on whose be-
half a charge had been filed and, rather than terminate him
on a permanent basis, laid him off repeatedly for periods of
time, all the while complaining to him about the cost to the
Company occasioned by the charge which was pending.
These factors amply support the conclusion that the Re-
spondent repeatedly laid off Hughes because of his union ac-
tivities and because a charge had been filed with the Board
on his behalf. In so doing, the Respondent here violated Sec-
tion 8(a)(3) and (4) of the Act.
f. Jerome E. Quinn
Quinn came to work for the Respondent in August 1988.
At the time of his discharge on June 28, 1991, he was classi-
fied as a class A mechanic earning $14.25 an hour. During
the campaign in the fall of 1989, Quinn passed out union au-
thorization cards to fellow employees and signed a card on
November 7. His son, Thomas Quinn, an employee of the
Respondent at that time, also signed an authorization card.
Most of the Respondent’s attention toward Quinn began in
the late spring of 1991, about 2 months before he was dis-
charged. In the spring of 1991, Henry heard various employ-
ees mention the fact that Quinn was a union supporter. On
May 6, 1991, the Respondent learned for sure that both
Quinns had signed union cards because those cards were dis-
closed to the Respondent on the date originally set for a
hearing in several of these consolidated cases. The disclosure
was part of an agreement on the part of the Respondent here
to recognize the Union in the event that an FBI handwriting
expert certified that a majority of the cards presented con-
tained valid signatures.
It was shortly before this date that Garney Morris had con-
gratulated Quinn and two other employees in the company
office for doing a good job on a project in Baltimore.20
Quinn had taken some special training to enable him to work
at jobsites where toxic waste was present. The Baltimore job
was one of those projects. It was following this conversation
that Morris told Quinn that he would soon have enough
money to fight the Union and that he could delay the pend-
ing Board proceeding 3 or 4 years. It was during May that
Henry, while speaking to Quinn at a New Jersey jobsite, had
warned Quinn that, if Garney Morris were to go Union, he
would keep his four top mechanics and get rid of the others.
He elicited from Quinn an admission that the latter was not
one of Morris’ top four mechanics.
Beginning in May, the Respondent began to issue both
verbal and written warnings to Quinn about his work. The
common thread running through these warnings was that
Quinn was a slow worker. Quinn testified credibly that the
pace of his work in May and June was no different from
what it was in previous months and years when he had re-
ceived commendations and wage increases from the same
Respondent. He was ostensibly discharged because of cus-
tomer complaints which had been lodged against him. How-
ever, none of these complaints had been brought to his atten-
tion while he was working; he first learned of them after his
discharge at a hearing where the Respondent contested his
claim for unemployment benefits.
Quinn’s discharge presents a case of an anitunion em-
ployer who was satisfied with an employee’s performance,
albeit a slow-paced performance, until he learned for sure
that the individual in question was a union adherent. There-
after, the employee became the subject of antiunion pressure
and a series of verbal warnings which prepared the ground-
work leading to discharge. Accordingly, I conclude that, by
discharging Jerome Quinn because of his union activities, the
Respondent here violated Section 8(a)(3) of the Act. Wheth-
er, and to what extent, he has been reinstated to a similar
or substantially equivalent position, I leave to the compliance
stage of these proceedings.
5. The new warning forms and procedures
The Respondent admits that, in the summer of 1990, it in-
stituted a new and much more detailed warning form than
the one it had been using for 10 years. This change involved
not only a different document but a different procedure as
well. Under the former practice, a generalized complaint was
placed in the employee’s personnel record. It recorded
whether the discipline was an informal noting formal warn-
ing, or a reprimand. There was also a place on the form for
an indication whether the discipline in question was the first,
second, or third such caution received by the employee, as
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
well as a place where the supervisor could write a narrative
description of the reason for the warning if he chose to do
so. The new form was much more detailed. It provided space
for a narrative description of the reason for the warning, an-
other place for a reply by the employee, and a place for the
ultimate determination by the supervisor, based presumably
on the contents of the document. An employee was called on
to sign the form, even if he made no other reply, and would
not be permitted to return to work after receiving a written
reprimand unless and until he did sign it. One employee,
Hughes, refused to sign a form presented to him and was not
allowed to return to work until he relented. Scott told him
that the new form had been implemented ‘‘because of every-
thing that has been going on’’ and because the Company
needed to keep records of disciplinary matters.
The Respondent’s obligation to bargain collectively con-
cerning changes in wages, hours, and working conditions
arises when a union has achieved majority status and has
made a demand for recognition. As discussed more fully
infra, the Union achieved majority status on December 5,
1989, and made a demand for recognition early in January
1990. There is no suggestion that any bargaining took place
over the implementation of the new disciplinary form and its
attendant procedure. Accordingly, by unilaterally instituting a
new condition of employment, the Respondent here violated
Section 8(a)(5) of the Act. The motivation for the change
was summed up by Scott, namely, that it was implemented
in response to the attempted unionization of the Respond-
ent’s employees and the Respondent’s desire to keep better
records of employee work infractions. Having been devised
by an antiunion employer as one further means of thwarting
a union drive and intimidating its employees, the new form
and its implementation also violate Section 8(a)(3) of the
Act.
Because the new form and the new procedure were ille-
gally implemented, it follows that the Respondent committed
further violations of Section 8(a)(3) of the Act each and
every time it utilized the new form and the new procedure
to issue a warning shift. Those instances reflected in the
record are:
(A) Warning issued to Hughes for removal on or
about 11/6/90 from the Hydrocarbon job.
(B) Warning given to Hughes at the same time for
not showing up for work on 11/5/90 after being told
that there would be no work but that he should call in.
(C) Warning given to Hughes on the Dynatec job on
or about 12/3/90 concerning allegations that Hughes
had ‘‘lost his former productivity.’’
(D) Warning given to Hughes in late January, 1991,
for lateness in turning in his weekly time card.
The Respondent asserted in its answer to the consolidated
complaint that there were no written warnings in Quinn’s
file. However, on at least three different occasions in the
spring of 1991 Quinn was given verbal warnings as part of
the Respondent’s effort to prepare the way for his discharge.
Complaints by Robinson on or about April 16, 1991, con-
cerning Quinn’s slowness and by Scott on June 18 for the
same reason were discriminations in hire or tenure prompted
by discriminatory reasons and hence were violations of Sec-
tion 8(a)(3) of the Act. I so find and conclude.
6. The refusal of the Respondent to bargain collectively
in good faith with the Union
a. Majority status
The Respondent readily admits that it has never recog-
nized or bargained collectively with the Charging Party on
any subject. It challenges the Union’s majority status on the
basis of considerations relating both to the composition of
the bargaining unit and the validity of certain authorization
cards. The Union claims that it achieved the status of bar-
gaining representative on December 5, 1989, and was enti-
tled to recognition on and after that date. Its demand for rec-
ognition in January 1990 was summarily rejected by Morris.
(1) The unit
The parties agree that an appropriate bargaining unit
should include all full-time and regular part-time electricians,
helpers, and apprentices employed by the Respondent at its
Levittown, Pennsylvania facility, with the usual exclusions.
The parties further agree that, on the date in question, at least
67 persons were employed in that unit. The General Counsel
would also include, inter alia Irwin Bennis, Bruce R. Goulet,
Wayne O’Neil, and Nicholas Panariello. The Respondent
claims that they were only temporary employees and hence
not entitled to inclusion in the unit.
A temporary employee not entitled to be included in a bar-
gaining unit is one who is hired for a definite limited period
and who is discharged or laid off without reasonable expecta-
tion of recall. Meier & Frank Co., 272 NLRB 464 (1984).
The four individuals mentioned above do not fit this descrip-
tion. Goulet was hired without limitation on his tenure. He
was a full-time employee and treated for all purposes as the
Respondent treated any other employee. He left the Respond-
ent’s payroll in January 1990, on the 87th day of his employ-
ment, thus becoming ineligible to collect the advertised $500
bonus which was supposedly available to new hires who re-
mained more than 90 days; however, he did not leave of his
own accord. He was discharged, as found above, because of
his support for the Union. He was a regular full-time elec-
trician who was on the Respondent’s payroll on the critical
date. Accordingly, he should be included in the unit and his
card should be counted toward the Union’s majority.
Bennis was a full-time electrician who was also on the Re-
spondent’s payroll on the critical date. He was hired in Sep-
tember 1989, and was laid off in January or February of the
following year. When he was hired by the Respondent, he
was told he was being hired for a job on which he could ex-
pect to work for a year and a half and that he could expect
plenty of overtime. In a standard Christmas bonus letter
which Morris sent to Bennis, Bennis was given a bonus and
told that the Respondent was ‘‘looking forward to the New
Year working together.’’ In terms of treatment or compensa-
tion, Bennis was treated the same as any other employee in
the bargaining unit in his skill classification. Accordingly, he
should be included in the unit on the critical date and his
card should be counted toward the Union’s majority.
O’Neil was and is regularly employed as an electrician by
the General Motors Corporation. In November 1989, he
learned about job openings with the Respondent from a
newspaper ad and applied for part-time employment. When
he was hired, the Respondent was well aware of his regular
121GARNEY MORRIS, INC.
employment. Robinson, who interviewed him, told O’Neil
that ‘‘we’ll work together on it’’ in reference to fitting his
schedule at General Motors with his work at the Respond-
ent’s various jobsites. O’Neil was also told by Robinson that
the Respondent had ‘‘plenty of work.’’ There was no sugges-
tion, either during the hiring interview or any other time, that
O’Neil was being hired temporarily.
From November until his layoff in January, O’Neil regu-
larly worked 25–30 hours a week for the Respondent. His
shift for General Motors lasted from 3 until 11 p.m. He
worked for the Respondent from 7 a.m. to 1 p.m. during the
week and also worked on weekends. He was on the Re-
spondent’s payroll on the critical date and did not leave until
the Respondent laid him off, ostensibly for lack of work. The
fact that O’Neil was moonlighting for the Respondent does
not detract from his status as a regular part-time employee.
Accordingly, I will include him in the bargaining unit and
count his card toward the Union’s majority status on Decem-
ber 5.
Panariello was and is a regular employee of the New York
Telephone Company. He was on strike in August 1989, and
was hired by the Respondent during this period of time as
an electrician. There was no indication, either at the time of
his employment or later, that he was being hired only for the
duration of the telephone strike. His understanding with the
Respondent was that he would continue to work for it so
long as there was work available. He continued to work a
20-hour week after the strike ended in December 1989, and
did so until January 1990. His schedule after the telephone
strike ended was that he worked from 11 p.m. until 5 a.m.
for the phone company and from 1 until 5 p.m., 5 days a
week, for the Respondent. Panariello quit the Respondent of
his own volition at the end of January but did so only be-
cause work was getting slow. On the critical date he was a
regular part-time electrician who should be included in the
unit and whose card should be counted in determining the
Union’s majority status.
The General Counsel would include in the bargaining unit
an electrician named Brian Teichman and asks that his card
be included in determining the Union’s majority status.
Teichman worked for the Respondent for a number of years
as a class B electrician. He suffered a back injury at a jobsite
in August 1989, and was off work on disability drawing
workers’ compensation on December 5, the date on which
the Union wishes majority to be determined. Teichman has
yet to return to work. Even though he had not worked for
a period of several months, the Respondent sent him a
Christmas bonus on December 19, some 2 weeks after the
critical date, and accompanied the bonus with a note similar
to the one sent to every other employee, namely, that Morris
was looking forward to working with Teichman during the
following year. On March 1, 1991, the Respondent reported
to the Internal Revenue Service that Teichman ‘‘has been off
on workers compensation from 8–17–89 to present.’’ At no
time was Teichman ever discharged or laid off following his
injury and at no time has he resigned. It is well settled that
an employee who is absent for sickness or disability is pre-
sumed to continue his employee status; this presumption will
continue unless his employer demonstrates that he has been
terminated or has resigned. Atlanta Dairies Cooperative, 283
NLRB 327 (1987). No such showing appears in the record
in this case. Accordingly, I will include Teichman in the bar-
gaining unit as of December 5 and count his card toward de-
termining the Union’s majority status on that date.
As noted previously, Harrison, whose inclusion in the unit
is challenged by the Respondent, should be included because
he was discharged discriminatorily a month before the criti-
cal date and was, in contemplation of law, an employee in
good standing on that date. The same determination must be
made in the case of Raffa, who was also discharged in viola-
tion of the Act before December 5. Accordingly, he should
be included and his card counted. The Respondent would in-
clude John Henry in the bargaining unit. However, as found
above, Henry was and is a supervisor within the meaning of
the Act and must be excluded.
The final unit determination dispute involves Fred
McRoberts. There is no contention that McRoberts was a su-
pervisor but, for purposes other than unit determination, the
General Counsel did contend that McRoberts was a non-
supervisory agent. McRoberts was a partsman who worked
at the Respondent’s shop in Levittown. His only contact with
field employees was to drive a truck from the shop to
jobsites from time to time to deliver parts. He frequently at-
tended management meetings at the company office and was
included in meetings with the Respondent’s labor counsel
where antiunion strategy was discussed and decided.
McRoberts had no community of interest with regular and
part-time electricians, helpers, and apprentices, and did not,
during his employment, fall in any of these job classifica-
tions. Accordingly, he should be excluded from the unit.
In sum, the total bargaining unit as of December 5, 1989,
included the 67 stipulated members, together with Bennis,
Goulet, O’Neil, Panariello, Harrison, Raffa, and Teichman,
or a total of 74 people. I so find and conclude.
(2) The cards
Based on a determination by the FBI’s handwriting expert,
the Respondent agreed that 33 cards proffered by the General
Counsel in support of the claim that the Union had majority
status on December 5 were valid. Among this number are in-
dividuals whose unit inclusion was discussed above. The Re-
spondent challenged 10 cards on the basis of some alleged
irregularity or problem relating to the cards. In some in-
stances, the irregularity was nothing more than the inability
of the handwriting expert to make a positive comparison. In
such instances, the General Counsel summoned the card
signers themselves to identify their signature under oath at
the hearing. Employees Thomas Buck, Terrence McGovern,
Raymond Randall, Larry Schrager, and William Warner per-
sonally identified the signatures on their cards and did so
without contradiction. Their five cards will be counted. The
Respondent objected to the cards of Elmer Jester and Thom-
as Quinn on the basis that the cards themselves were un-
dated. Both employees identified their cards under oath and
testified that they were each signed within the first 10 days
of November, well in advance of the critical date. In each
instance, their testimony was uncontradicted. There is no re-
quirement that a card actually be dated in order to be valid
so long as it can be established that the card was signed on
or before the date on which majority status is being deter-
mined. In both instances, such was done in this case, so Jest-
er’s card and T. Quinn’s card should be counted toward the
Union’s majority status.
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
James O’Neill testified credibly and without contradiction
that he signed a card well in advance of December 5. As a
precaution, he signed a second one the following February
because his first card was misplaced. He testified that the
one he signed on the earlier date was identical to the one
signed later on. It is well settled that the testimony of an em-
ployee can be used to determine majority status when, as
here, the card signed by that employee has been misplaced.
Hestrom Co., 223 NLRB 1409 (1976). Accordingly, I will
count O’Neill’s card toward the Union’s majority status.
In sum, on the critical date, the Union had obtained au-
thorization cards from a total of 41 employees in a bargain-
ing unit of 74 employees, well in excess of the number need-
ed to establish majority status. Accordingly, I find that, since
December 5, 1989, the Charging Party here has been the
duly authorized collective-bargaining representative of the
Respondent’s mechanic bargaining unit.
b. Refusal to bargain
In January 1990, the Union made a verbal demand for rec-
ognition and bargaining in a phone conversation between
Kennedy and Morris. Morris flatly rejected the demand at a
time when he was under a legal duty to grant recognition and
begin negotiations leading to a contract. By failing and refus-
ing to recognize and bargain with the Charging Party as the
duly authorized representative of its mechanic employees, the
Respondent here violated Section 8(a)(5) of the Act.
c. The unilateral discontinuance of gas and toll benefits
and Respondent contributions to its 401(k)
retirement plan
On October 24, 1991, the Respondent distributed to all
employees a notice which read in part:
Beginning today we must all begin to really tighten our
belts. As you know the economy is very poor, our work
load is very light and unemployment in this country is
again on the rise. In order to keep as many men work-
ing as possible we must temporarily stop the company
contributions to the 401K and eliminate the gas and toll
benefits paid to employees who are driving their per-
sonal vehicles. I hope you will all try your best to car
pool with employees who have company vehicles.
The letter went on to note certain exceptions to the gas rule,
provided permission was obtained in advance for any gaso-
line purchase for which reimbursement was requested.
There is no suggestion that the Union was notified of these
changes, that it was offered an opportunity to bargain about
them, or that it consented to them. Whether they were imple-
mented for sound business reasons, as indicated in the notice,
is beside the point. What is of importance is that there was
failure on the part of the Respondent to observe its duty to
bargain over changes in the fringe benefits of its employees
before they were implemented. By failing and refusing to
take these steps, the Respondent here violated Section 8(a)(5)
of the Act.
CONCLUSIONS OF LAW
1. Garney Morris Inc. is now and at all times material
herein has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
269 is a labor organization within the meaning of the Act.
3. All regular full-time and regular part-time electricians,
helpers, and apprentices employed by the Respondent at its
Levittown, Pennsylvania facility, but excluding office clerical
employees, guards, and supervisors as defined in the Act
constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since on or about December 5, 1989, the Union here
has been the exclusive collective-bargaining representative of
the employees employed in the unit found appropriate in
Conclusion of Law 3 for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain collectively with
the International Brotherhood of Electrical Workers, Local
269 as the exclusive collective-bargaining representative of
the employees employed in the unit found appropriate in
Conclusion of Law 3; by unilaterally instituting and imple-
menting a change in its discipline form and its disciplinary
procedure; and by unilaterally discontinuing payments to its
401(k) plan and discontinuing reimbursement of employees
for gasoline purchases and toll payments, the Respondent
here violated Section 8(a)(5) of the Act.
6. By discharging Keith Raffa, Stephen Aldrich, Jerome
Quinn, Bruce Goulet, and Michael Harrison; by repeatedly
laying off John Hughes because of their membership in and
activities on behalf of the Union; and by adopting new dis-
ciplinary forms and implementing a new disciplinary proce-
dure in response to the Union’s organizing drive, the Re-
spondent here violated Section 8(a)(3) of the Act.
7. By repeatedly laying off John Hughes because an unfair
labor practice charge had been filed on his behalf, the Re-
spondent here violated Section 8(a)(4) of the Act.
8. By the acts and conduct set forth above in Conclusions
of Law 5, 6, and 7; by threatening employees with plant clo-
sure, discharge, and layoff if they supported the Union; by
creating among employees the impression that their union ac-
tivities are a matter of company surveillance; by promising
and by granting to employees increases in compensation in
order to persuade them to abandon their support for the
Union; by threatening to engage in protracted litigation in
order to defeat an organizing drive; by soliciting grievances
with a view toward adjusting them during an organizing
campaign; by coercively interrogating employees concerning
their union activities, including but not limited to insisting
that employees disclose in writing or by a showing of hands
their union sympathy or lack of union sympathy; by threaten-
ing to monitor the activities of employees in order to find
a pretext for discharge; and by assaulting employees because
of their union sympathies or affiliations, the Respondent here
violated Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Because the independent violations of
Section 8(a)(1) of the Act found here are repeated and perva-
123GARNEY MORRIS, INC.
21 F. W. Woolworth Co., 90 NLRB 289 (1950).
sive, and evidence on the part of this Respondent an attitude
of total disregard for its statutory obligations, I will rec-
ommend to the Board a so-called broad 8(a)(1) remedy de-
signed to suppress any and all violations of that section of
the Act. Hickmott Foods, 242 NLRB 1357 (1979). The rec-
ommended Order will also recommend that the Respondent
be required to offer to Keith Raffa, Stephen Aldrich, Jerome
Quinn, Bruce Goulet, and John Hughes full and immediate
reinstatement to their former or substantially equivalent em-
ployment and to make them whole for any loss of earnings
which they may have sustained by reason of the discrimina-
tions practiced against them, in accordance with the Wool-
worth formula,21 with interest at the rate prescribed by the
Tax Reform Act of 1986 for the overpayment and under-
payment of income tax. New Horizons for the Retarded, 283
NLRB 1173 (1987). The recommended Order will require
the Respondent to expunge from the personnel files of all
employees any disciplinary actions noted on the form which
it illegally adopted and implemented, and will further require
it to notify those employees that such action has been taken
and that the infractions indicated on each of these forms will
not be used as a basis for future discipline. The rec-
ommended Order will require the Respondent to reimbuse its
401(k) plan for all moneys which it has unlawfully withheld
and its employees to whom gasoline and toll payments have
unlawfully been withheld, with interest computed at the com-
pliance stage of these proceedings. Merryweather Optical
Co., 240 NLRB 1213 (1979).
The General Counsel and the Charging Party have re-
quested, inter alia, a so-called Gissel remedy which would
require the Respondent to recognize and bargain with the
Union as the exclusvie collective-bargaining representative of
its mechanics. In this case, the Respondent engaged in a
campaign of wholesale intimidation and coercion of its em-
ployees immediately on learning that a union was undertak-
ing an organizational campaign. Included in that effort were
the layoff or discharge of several union adherents, the threat
to discharge more, threats to close the business, a threat to
delay the vindication of employee rights by the Board, re-
peated and coercive interrogation, physical assault, and
promising and granting of benefits aimed at heading off the
union drive. It is hard to imagine any conduct on the part
of an employer which could more thoroughly decimate an or-
ganizing drive and more surely render a Board election
meaningless. The Board and the Third Circuit have issued
Gissel orders and decrees based on conduct far milder than
that which was found in this case so I have no hesitance in
recommending it here. NLRB v. S. E. Nichols-Dover, 414
F.2d 561 (1969); NLRB v. Broad Street Hospital, 452 F.2d
302 (1971); NLRB v. Easton Packing Co., 437 F.2d 811
(1971); NLRB v. Colonial Knitting Corp., 464 F.2d 949
(1972); Toltec Metals v. NLRB, 490 F.2d 1122 (1974); Frito-
Lay v. NLRB, 585 F.2d 62 (1978); NLRB v. Kenworthy
Trucks of Philadelphia, 580 F.2d 55 (1978); NLRB v. Eagle
Material Handling, 558 F.2d 160 (1977); Midland-Ross
Corp. v. NLRB, 617 F.2d 977 (1980). I will also recommend
that the Respondent be required to post the usual notice ad-
vising its employees of their rights and of the results in this
case.
[Recommended Order omitted from publication.]