Gerber Co.

National Labor Relations Board - Board Decisions

Jun 18, 1984

270 N.L.R.B. 1235 (N.L.R.B. 1984)

GERBER CO.
The Gerber Co., Inc. and Local 217, United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefltting Industry of the United
States and Canada, AFL-CIO. Cases 1-CA-
18362, 1-CA-18803, and 1-RC-17183
18 June 1984
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 January 1983 Administrative Law Judge
James J. O'Meara, Jr. issued the attached decision.
The General Counsel, the Charging Party, and the
Respondent filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 and to adopt the recommended Order
as modified herein.
Although we agree with the judge that the rea-
sons given for James Noel's discharge were pretex-
tual, we also find merit in the General Counsel's
exception that Noel was treated disparately by the
Respondent for discriminatory reasons.
The record shows that in 1980 employee Alfred
Clemens was involved in an incident after work
with one of the Respondent's trucks. The truck
was damaged and Clemens was also under the in-
fluence of alcohol. The record also shows that the
i On 12 June 1982 an election was conducted among the employees in
the appropriate unit. The tally of ballots showed that II employees cast
ballots for, and 11 against, the Petitioner (the Union). There was one
challenged ballot, a number sufficient to affect the results of the election.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a Contrary to the judge, we do not find that the Respondent interro-
gated employees Keene and Grant during a discussion with them regard-
ing the merits of unionization because there is no evidence that the Re-
spondent inquired as to the union sentiments or activity of these or any
other employee. Further, we do not find the Respondent's statement that
"it could guarantee employees work for 52 weeks" constitutes a promise
of benefits because the Respondent was merely making a comparison be-
tween its existing terms and conditions of employment and what the
Union could not provide to employees. Comments such as these are per-
missible under Sec. 8(c) of the Act and therefore do not violate Sec.
8(a)(1). Accordingly, we shall modify the order where appropriate.
Member Zimmerman finds it unnecessary to pass on these incidents
since any finding of violations based thereon would be cumulative and
would not affect the remedy.
Chairman Dotson does not agree with his colleagues that the various
conversations engaged in by the Respondent with its employees, and
found by the judge to constitute illegal interrogations. are unlawful
Chairman Dotson is of the opinion that these conversations were rather
innocuous and reasonable given the circumstances in which they oc-
curred.
Respondent did not discipline Clemens in any
manner whereas the Respondent discharged Noel
for allegedly abusing tools which belonged to him
and for driving recklessly in the Respondent's
parking lot. We find that Noel's alleged acts barely
measure up to more than a minor incident which
did not involve any loss or damage to the Re-
spondent's property. Further support for our con-
clusion of disparate treatment stems from the fact
that Noel was one of the Respondent's better em-
ployees who had never received any type of warn-
ing and who, just prior to his discharge, had re-
ceived more than the usual wage increase from the
Respondent because he was deemed to be "worth
it." Thus it is clear that had it not been for Noel's
protected concerted activity the Respondent would
not have discharged such a good employee for
such a minor incident and would have treated Noel
the same as it had treated Clemens.
In fashioning a remedy for the Respondent's
unfair labor practices, the judge gave a conditional
bargaining order, the necessity of which depended
on the challenged ballot of discriminatee Noel. Al-
though the judge found that the Respondent's
unfair labor practices were sufficiently severe to
warrant the issuance of a bargaining order, he,
nonetheless, failed to explicitly provide for the cer-
tification of representative if the Union prevails in
the election after Noel's challenged ballot is
opened. Therefore we shall provide for a certifica-
tion of representative to issue if appropriate and we
find it unnecessary to pass on the propriety of a
bargaining order at this time.4 Accordingly, the
judge's recommended Orders is adopted as modi-
fied and the Direction is issued as set forth below.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Gerber Co., Inc., Portland, Maine,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph l(g).
"(g) Discharging employees because of their pro-
tected concerted activities on behalf of the Union."
2. Insert the following paragraph l(h).
"(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
4 Member Zimmerman, for the reasons stated by the judge, would
adopt his recommendation for a bargaining order to remedy Respond-
ent's unfair labor practices, in the event the Union does not win the elec-
tion.
' We have confirmed the judge's recommended Order and notice.
270 NLRB No. 189
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Substitute the attached notice for that of the
administrative law judge.
DIRECTION
It is directed that the Regional Director for
Region 1 shall, within 10 days from the date of this
decision, open and count the ballot cast by James
Noel in Case I-RC-17183, and prepare and serve
on the parties a revised tally of ballots. If the re-
vised tally reveals that the Petitioner has received a
majority of the valid ballots cast, the Regional Di-
rector shall issue a Certification of Representative.
However, if the revised tally shows that the Peti-
tioner has not received a majority of the valid bal-
lots cast, the Regional Director shall set aside the
election results and forward the case to the Board
for further consideration.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
Accordingly, we give you these assurances.
WE WILL NOT interrogate you regarding your
union activities and sympathies or the activities and
sympathies of your coemployees.
WE WILL NOT create the impression of surveil-
lance or conduct surveillance of you regarding
your union activities.
WE WILL NOT solicit grievances from you or re-
solve such grievances without negotiating with the
Union.
WE WILL NOT promise benefits to employees
without bargaining regarding such benefits with
the Union.
WE WILL NOT threaten employees with dis-
charge or replacement by other union journeyman
plumbers.
WE WILL NOT offer benefits to employees to
abandon the Union.
WE WILL NOT discharge employees because of
their protected concerted activities on behalf of the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James Noel immediate and full
reinstatement 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 privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
THE GERBER CO., INC.
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA, JR., Administrative Law Judge.
These cases, as reflected by the consolidated amended
complaint filed on August 5, 1981, are based on certain
charges of unfair labor practices filed by Local 217,
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO (the Union), against the
Respondent, The Gerber Co., Inc. These cases have been
consolidated with a case arising out of an election held
on June 12, 1981, to which the Union has timely filed
several objections. Since the objections are based on con-
duct factually similar to alleged unlawful conduct carried
out by the Respondent and recited in the complaint, the
cases have been consolidated for hearing.
The complaint alleges that the Respondent has interro-
gated employees concerning their union activities and
sympathies; created the impression of surveillance of its
employees' activities; solicited grievances which it prom-
ised to resolve; promised benefits to employees; threat-
ened that it would not bargain with the Union and that
such bargaining would be futile; threatened to discharge
employees for union activities; revoked certain employee
privileges; and discharged an employee, all in order to
discourage union activity.
The Respondent has admitted the allegations of the
consolidated amended complaint designed to invoke the
jurisdiction of the Board and has denied that it is guilty
of any violations of the Act.
The Union has filed timely objections to the election
of June 12, 1981, alleging that during the critical period
the Respondent: (1) engaged in extensive interrogation of
employees about union activities; (2) threatened employ-
ees with discharge and other adverse consequences if
they would not abandon the Union; (3) solicited griev-
ances and promised to remedy such grievances; (4) dis-
1236
GERBER CO.
criminated against various employees by revoking truck
use privileges, transferring employees, and imposing new
work rules; and (5) discriminatorily discharged James
Noel.
A hearing on the consolidated amended complaint was
held in Portland, Maine, on March 29 and 30, 1982. At
the close of the hearing the parties waived oral argument
and were requested to and did file briefs which have
been received and considered.'
Based on the evidence of record, including the testi-
mony and demeanor of the witnesses, and in consider-
ation of the briefs filed by the parties hereto, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and at all times material herein has
been, a corporation duly organized and existing under
and by virtue of the laws of the State of Maine, and is a
plumbing contractor engaged in the installation of
plumbing, heating, and air-conditioning systems in south-
ern Maine, maintaining its principal office and place of
business in Portland, Maine. In the course and conduct
of its business operation, the Respondent annually pur-
chases goods and materials valued in excess of $50,000
directly from points located outside the State of Maine.
The Respondent admits in its pleadings, and I find,
that the Respondent is, and at all times material herein
was, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I further find that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION
Local 217, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, is an organization
in which employees participate, which deals with em-
ployers concerning grievances, labor disputes, wages,
rates of pay, hours of employment or conditions of work
and, at all times material herein has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
A. Supervisory Status of Certain Employees
The Respondent has asserted that employees James
Noel, Thomas Smith, and Mark Golden are supervisors
and not employees as those terms are defined in the Act.
The definition of the term "employee" contained in Sec-
tion 2(3) of the Act excludes therefrom "any individual
employed as a supervisor." Section 2(11) the Act defines
the term "supervisor" as:
Subsequent to filing its brief, the Respondent, by letter to me prof-
fered additional argument on the issue of supervisory status of the Re-
spondent's leadmen. The General Counsel has filed a motion to strike the
document from the record.
The practice in which counsel for the Respondent has engaged by his
"letter-reply" is not only contrary to the Board's rules but constitutes an
ex-parte communication. Counsel is requested to refrain from such prac-
tice in the future and the document is ordered stricken from consider-
ation as part of the record in this case.
[A]ny individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly direct them,
or to adjust their grievances, or effectively recom-
mend such action, if in connection with the forego-
ing the exercise of such authority is not merely rou-
tine or clerical nature, but requires the use of inde-
pendent judgment.
The Respondent hired employees who were classified
either as journeymen plumbers or apprentices. 2 During
the period from January I to June 12, 1982, the comple-
ment of the Respondent's employees fluctuated from 16
to 22 employees. These employees were supervised by
John Gerber, president of Respondent, who spent ap-
proximately 50 percent of his time at the jobsites over-
seeing the progress of the work. The Respondent charac-
terized some of its journeymen plumbers as "leadmen."
It was the Respondent's practice to assign an individual
journeymen plumber to a specific construction job. On
most occasions the man so assigned worked alone and on
some occasions the journeymen plumber would be as-
signed an apprentice to assist him on the job. The ap-
prentice was expected to performn less skilled tasks and
would, in effect, engaged in "on-the-job training" in the
plumbing trade. On other occasions a journeyman would
be provided assistance from another journeyman plumber
in order to expedite the work or to engage in the time of
the second plumber. On these occasions neither journey-
men plumber would direct the work of the other since
both were equally skilled. The job assignment of the
journeymen or "leadman" was to perform the work as
scheduled from blueprints and to schedule his plumbing
work to coordinate with the work of other crafts. When
routine changes from the blue prints, or "minor prob-
lems," arose the "leadmen" could make such adjust-
ments; however, in the event a change in the blueprints
was required which could entail additional materials or
labor, the change would require the consideration and
approval of Gerber.
The "leadmen" journeyman plumber had no authority
to, nor did he hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees or responsibily direct them, nor did he adjust
their grievances, nor did he recommended such action.
It is clear from the evidence that the employees of the
Respondent who were journeymen plumbers usually per-
formed the work of the Respondent on the jobsite in
their individual capacity exercising their individual ex-
pertise. When an apprentice was provided to jounery-
man, the direction of that apprentice's work was in ac-
cordance with the rules of the craft in which they were
engaged. The apprentice was an "on-the-job trainee" and
as such was directed by the journeyman. This incidental
"craft oriented" supervision is not within any of the indi-
I In order for an employee to be classified as a journeymen plumber he
must take an examination administered by the State of Maine designed to
test his qualifications to represent himself as an accomplished plumber.
An apprentice is an employee working in the plumbing trade who has
not taken and successfully passed the state test for journeymen plumbers.
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cia spelled out in the statutory definition of a "supervi-
sor." In Southern Bleachery & Print Works, 115 NLRB
787 (1956), enfd. 257 F.2d 235 (4th Cir. 1958), cert.
denied 359 U.S. 911 (1959). The Board noted that the di-
rection of lesser skilled employees by skilled journeymen:
. . is not the type of authority contemplated in the
statutory definition of a supervisor; it is not the au-
thority responsibly to direct other employees which
flows from management and tends to identify or as-
sociate a worker with management. Throughout the
industry of the nation, there are highly skilled em-
ployees whose primary function is physical partici-
pation in the production or operating processes of
their employers' plants and who incidentally direct
the movements and operations of less skilled subor-
dinate employees. These artisans have a close com-
munity of interest with their less experienced co-
workers and the amended Act has preserved for
them the right to be represented by a collective-bar-
gaining agent in dealings with their employers. [115
NLRB at 791.]
See also Westlake United Corp., 263 NLRB 1095 (1978).
(A degree of supervison analogous to those exercised by
skilled workers over helpers was insufficient for a finding
of a statutory supervisor.)
The Respondent's characterization of Noel, Smith, and
Golden as "leadmen" is not pursuasive of their status as
"supervisors." It is well established that an individual's
function and authority, rather than his title, determine his
status under the Act. Orr Iron, Inc., 207 NLRB 863
(1973). The "leadmen" have the experience to work a
job alone. He is paid $2 to $3 more per hour. He is pro-
vided a company truck. The leadmen does, in fact, per-
form his tasks alone. 8 While these "leadmen" were usual-
ly the sole representative of the Respondent on their
jobs, they did not exercise vicarious acts for their em-
ployer in relation to others in the employer's hire. See
John Cuneo of Oklahoma, 238 NLRB 1438 (1978).
Accordingly, I conclude that Noel, Smith, and Golden
were not supervisors as that term is defined in the Act
but are employees and entitled to the protection of, and
are within the provisions of, the Act.
C. Unfair Labor Practices
As set forth above, the complaint alleges several acts
attributed to the Respondent which acts allegedly consti-
tute a violation of Section 7 of the Act. All, save the dis-
charge of Noel, fall under the provision of Section
8(a)(1) of the Act.
1. Alleged 8(a)(l) violations
In October 1980, Noel and others among the Respond-
ent's employees explored the procedures to be undertak-
en to accomplish union representation of the Respond-
ent's employees. Several meetings were held between
employees and the union representative, as well as meet-
ings between the employees. On December 8, 1980, John
3 Smith worked as the Respondent's residential serviceman responding
to residential trouble calls. He worked alone and had a company vehicle.
Gerber, the principal officer and stockholder of the Re-
spondent, conversed with Thomas Smith, an employee,
asking Smith what he knew about union activities in the
shop. Smith replied that rumor was that the Union
wanted to organize either the Gerber Company or an-
other company. Gerber replied that he wished the Union
would leave him alone.
On February 2, 1981, Gerber telephoned Smith at his
home and stated that Gerber had been told that employ-
ees had met with the Union and that he had a list of
their names. He inquired of Smith whether the proce-
dure had extended as far as authorization cards being
signed. Smith advised Gerber that nothing had been
signed and Gerber asked Smith what he could do about
stopping the union movement. Smith advised Gerber that
if anything was going to be done it had to be done
within 24 hours. Gerber told Smith he would call a
meeting of the employees the following morning. At the
meeting with the employees, Gerber stated that he "felt
like he had been kicked in the balls." Gerber told the
employees that he did not like the way that they had
gone behind his back and that he would fight them all
the way. He pointed out some of the benefits offered by
the Company, such as vacations and holidays and a
steady paycheck for 52 weeks a year which the Union
could not offer. He further asked them to look at the his-
tory of union shops in the area and pointed out that the
union shops had declined from 20 to 6 in the past 10
years.
On February 6, 1981, on a jobsite, Gerber spoke with
employee James Noel, asking him, "What's going on
with this union business? What is this anyway?" Noel ad-
vised Gerber that he was, "100 percent for the Union."
The two then continued the discussion relating to the
pros and cons of unionization in regard to the employer's
and employees' interest. This conversation was at times
heated. Gerber told Noel "Look, you're single. If there
was to be a strike it wouldn't hurt you. Think about mar-
ried guys that are here and can't afford to go out on a
strike. If you don't like the way things are, you don't like
working for me, why don't you quit. At least leave the
married guys alone." Noel also told Gerber that the lack
of a pension plan meant no security but with the Union
he would have security.
Again, on February 6, on a jobsite, Gerber approached
James Grant and Lawrence Keene, two of his employ-
ees, and engaged in a discussion regarding the merits of
unionization. Gerber asked the two employees what they
thought they were to gain by going union and pointed
out certain benefits then provided. Gerber stated to
Keene that, "Even if we are able to make $50 an hour, if
we weren't working, then it wouldn't do us any good."
Keene also told Gerber the basic reason was that the
Union offered a good pension plan where Gerber did
not. Gerber responded that he had been working on the
pension plan for quite a while and was going to talk
about it that week.
Later that day, in the company office, Gerber dis-
cussed a pension plan with Smith and said he had a man
coming in about the pension plan. He also said he had
discussed the Union with Noel and that Noel "gave me
1238
GERBER CO.
the typical union speech." Gerber added that he heard it
a hundred times from the Union. Gerber told Smith
"He's single. If he gets the Union, he'll probably take a
travel card and go out of town." Gerber continued,
"Can you do that? You're a married man. You have a
family. I can guarantee you work fifty-two weeks a year.
Can the Union guarantee you that."
Again on February 8, 1981, Gerber engaged Smith in
a conversation at the office. Gerber asked Smith what he
thought he could possibly gain by going union. Smith re-
sponded again by raising the existence of a pension plan
for union workers. Gerber again stated that he had a
man coming in on it that week. Gerber requested Smith
to help him win the election.
On February 6, Gerber received notice from the
Union that it represented a majority of Gerber's employ-
ees and requested a meeting to commence negotiations.
On February 10, Gerber responded by advising the
union representative that he believed the fairest approach
was through a Board-conducted secret ballot and refused
to negotiate with the Union prior to such an election.
On February 9, Gerber again talked to Smith and
asked whether Smith had had an opportunity to speak
with other employees at the union hall. On the prior
Friday night, Smith told Gerber that they had each paid
$216 into the Union for initial membership and were not
going to back out now. Gerber responded that "the
money could be taken care of."4
On February 18, 1981, Gerber met with employees
Golden on a jobsite and stated that if the Union comes in
Gerber would replace 50 percent of the shop and was
going to have the last laugh."
2. Alleged 8(a)(3) violations
On February 13, Noel and Grant returned to the shop
about 4:15 p.m. When Noel learned that his regular park-
ing space was taken and was told to unload his tools and
park the truck on the other side of the driveway, Noel
became angry. He turned the truck around, swore, un-
loaded tools from the truck in a rough fashion, and
drove the truck about 40 or 50 feet at a rapid pace to
park it. Noel denies that he "squealed" the tires or
"burned rubber" when he moved the truck.
Charlotte Schaumacher, the bookkeeper, heard "tools
and materials" being thrown off the truck and heard
Noel "burn rubber" when he drove across the driveway.
Lenny Drapeau, an employee of the Company and Ger-
ber's brother-in-law, was also at the shop that afternoon
and heard banging noises in the garage and saw the
4 Although Gerber denies stating that, "the money can be taken care
or' I credit the testimony of Smith in view of the fact that Gerber was
interested in avoiding union membership among his employees and had
previously requested of Smith information as to what he could do to pre-
vent it. It is consistent with this attitude that Gerber would offer to make
his employees whole if they withdrew from the Union.
I Gerber denies the literal recount of such a statement. In such a denial
Gerber, in essence although with different words, implied that other,
more qualified plumbers would work for Gerber and present employees
would be out. Gerber embellished his explanation of the statement by
adding that if he had to chose from union employees he would chose
more qualified employees than his current nonunion plumbers and "If the
choice came down to who I would choose, that's where it was at."
truck speeding across the driveway with the tires squeal-
ing.
About an hour later, Drapeau saw Gerber at a gas sta-
tion across the street from the shop. Drapeau went
across the street to tell Gerber what happened. Gerber
later called Grant. Grant told him that he did not hear
or see Noel "burn rubber." Gerber discharged Noel
when he reported to work on Monday, February 16.
Gerber told Noel that he did not have to put up with
Noel's swearing, throwing of tools, or reckless driving.
Gerber told him to grab his tools and "hit the road."
Noel was given no chance to explain the incident.
D. Discussion and Conclusions
I. The 8(aX)() violations
Section 8(aX1) of the Act prohibits employers from
interfering with, restraining, or coercing employees in
the exercise of their rights of self-organization as guaran-
teed by Section 7 of the Act. In evaluating the conduct
of an employer as to whether it violates the Act, the
issue is whether the employer's conduct tended to affect
the employees' freedom of choice, not whether such con-
duct, in fact, did affect that choice. The unlawfullness of
the employer's conduct is derived from the aggregate of
circumstances arising from statements and conduct of the
parties.
The evidence establishes that the employees of the
Gerber Company, in October and November 1980, un-
dertook to acquire representation of the Union. Gerber,
on several occasions, originated discussions with employ-
ees regarding their activities in the process of attempting
to unionizing the Respondent. He acknowledged to
Smith that he had been told that the employees had met
with union representatives and even stated that he "had
list." He asked Smith if the meeting had gone as far as
the signing of authorization cards. He later also asked
Smith if he had an opportunity to speak to the employ-
ees before they paid their initiation fees. In addition to
this conversation with Smith, Gerber interrogated sever-
al of the other employees about the union campaign.
It is clear from Gerber's professed possession of a list
of employees and the frequent interrogation of employ-
ees about the union campaign that Gerber either had ob-
tained information from some undisclosed source or was
attempting to obtain such information from the individ-
ual employees. Such conduct on the part of the Re-
spondent's principal officer clearly would create the im-
pression among reasonable persons that the Respondent
was conducting a surveillance of the union activities of
his employees. It is also clear that such impression would
tend to dampen the enthusiasm that the average employ-
ee would have for the union effort. This is true even in
the absence of an expressed threat of reprisal. Smith's re-
sponse to Gerber's interrogation of him was that "he
shouldn't be talking to him." Smith was clearly con-
cerned about peer reprisal and/or employer reprisal in
the event he did not cooperate in submitting to the inter-
rogation. These interrogations are improper and created
the impression that the Respondent had the employees'
union activities under surveillance. Mark I Tune-Up Cen-
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters, 256 NLRB 898 (1981); Pilgrim Life Insurance Co.,
249 NLRB 1228 (1980).
The evidence also establishes that Gerber solicited
grievances and promised benefits to remedy those griev-
ances in his conversations with employees. In his tele-
phone conversation with Smith on February 2, Gerber
asked Smith if there was anything he could do to stop
the Union. He also asked several employees what they
expected to gain by going to the Union and volunteered
the statement, on several occasions, that the Company
was working on a pension plan and could guarantee 52
weeks a year of employment. He also specifically re-
quested from his employees a recitation of their "gripes."
The conduct displayed by Gerber reflects that as part of
his antiunion campaign he solicited grievances from em-
ployees, a practice which had not existed previously.
This conduct constitutes an implied promise to take steps
to remedy the "gripes" manifested by the employees.
Specifically, Gerber certainly gave the impression that
he would institute a pension plan and a guarantee of a
52-week paycheck. These suggested promises of benefits
during the union campaign were clearly designed to
affect decisions of the union supporters among his em-
ployees. In the context of such an organizational cam-
paign, such conduct suggests that these benefits might be
withdrawn if existent or granted if not existent. Such
promises of benefit or threats to withdraw such benefits
constitute violations of Section 8(a)(1) of the Act.
2. The Respondent's union animus
The evidence conclusively establishes that Gerber was
antiunion and considered the support of the Union by his
employees as betrayal, or as he colorfully portrayed it, a
"kick in the balls." In his conversation with Smith, he
asked if the employees had paid their dues. When Smith
advised him that they had, Gerber told Smith that the
money was not the issue. While it is not unlawful for an
employer to be antiunion and oppose the union cam-
paign, it is unlawful to pursue his antiunion campaign in
a matter that unfairly affects the judgment of the em-
ployees in the exercise of their evaluation of the issue
proposed by the forthcoming union election.
Gerber further said that if they were successful in their
union campaign the Company would replace 50 percent
of the shop, and thus he was going to have the last
laugh. He stated in that event he would staff his compa-
ny with other union employees whom he characterized
as the most qualified among union plumbers and further
emphasizing this fact by implying that "if the choice
came down to who I would choose, that's where it was
at." This statement is a clear threat to discharge the cur-
rent employees among his staff by eliminating those
among his employees whom he deemed less qualified
than other available union plumbers. Such a remark is
clearly an effort on the part of Gerber to dissuade those
to whom the remark was made and those to whom such
remarks were conveyed to abandon their support for the
Union in order to maintain their tenure. These threats of
selection of other union plumbers to staff his company
certainly carries the implication that present employees
would be discharged. There is no more significant
method to coerce an employee than to infuse into his
considerations the potential loss of his employment. Such
conduct violates Section 8(a)(1) of the Act.
Gerber also in his discussions with two of his employ-
ees suggested that if they did not like the circumstances
of their employment and if they wanted the Union they
should quit their job. Such a statement is a violation of
Section 8(a)(l) of the Act. Rollion Corp., 254 NLRB 22
(1981).
Gerber's discharge of Noel, a known leader among the
prounion employees, also had an adverse effect upon
others of the Respondent's employees. Noel told Gerber
that he was 100 percent for the Union. They had a
"heated" discussion on the subject in the presence of two
other employees. Noel's discharge, allegedly for discipli-
nary reasons,6 could only tend to cause other employees
to fear for their jobs because of overt prounion activities.
3. Summary of 8(aX)() violations
In summary, the evidence establishes, and I find, that
the Respondent has violated Section 8(aXl) of the Act in
that the Respondent:
1. Created an impression of surveillance by Respond-
ent of employees' union activity.
2. Interrogated employees about their union activity
and such activities of other employees.
3. Solicited employees' grievances and implied an
intent to resolve such grievances.
4. Offered to provide benefits for employees in the
form of employee pensions and a guarantee of full em-
ployment.
5. Offered to reimburse employee members for fees
and/or dues paid by such employees to the Union in
return for their abandonment of the Union.
6. Threatened to replace present employees with other
union plumbers if the Union won the election.
7. Discharged a known union leader because of his
union activity.
4. The 8(a)(3) violation
The discharge of Noel on February 16 was allegedly
because of Noel's intemperate conduct on February 13.
As stated previously, Noel had expressed his prounion
attitude to Gerber and had debated the pro's and con's of
union membership for the Respondent's employees with
Gerber on a construction site in the presence of other
union members. It is clear that Noel was one of the more
outspoken prounion employees among the Respondent's
plumbers. Noel's conduct on February 13 comprised a
loss of temper that did not result in any detriment to the
Respondent. At the end of the working day on Friday,
February 13, Noel was advised that the usual indoor
parking facility for the truck he was using was not avail-
able and that he would have to park the truck outside
the protected garage. This necessitated his removing
tools and materials into the garage. Apparently Noel was
angry by this requirement and unloaded the tools and
materials in what is deemed to be a rough fashion. He
swore and drove the truck about 40 to 50 feet at an al-
leged rapid rate of speed to the allotted parking location.
6 The discharge of Noel is discussed in detail below.
1240
GERBER CO
No contention has been made that tools or materials
were damaged by the manner in which they were un-
loaded nor was the truck in any way damaged by the
mode of driving it to the parking place. The Respond-
ent's bookkeeper and Gerber's brother-in-law overheard
and witnesses the episode and advised Gerber. It is my
conclusion that the incident was a minor loss of compo-
sure by Noel and one which would not haven attracted
such attention unless other reasons existed for close ob-
servation of Noel's conduct. This impression that Noel's
conduct was more closely observed than ordinary is fur-
ther suggested by the haste with which Gerber's brother-
in-law exercised in conveying the episode to Gerber. An
hour after the incident Gerber's brother-in-law crossed
the street to a gas station where he saw Gerber to tell
him of the incident. The incident is not one such as
would warrant discharge in ordinary cirucmstances but
rather was seized upon by Gerber to discharge Noel a
leader, if not the primary leader, of the union activists.
Further supporting the conclusion that Noel was dis-
charged other than for disciplinary reasons is the signifi-
cant fact that he was not given an opportunity to explain
the circumstances giving rise to the incident. According-
ly, I reject the proffered reasons for the discharge of
Noel and find that Noel was discharged because of his
union activities which gave rise to an expressed antago-
nism to Noel in Gerber. Accordingly, I find that the Re-
spondent by discharging Noel on February 16, violated
Section 8(a)(3) of the Act.
5. The objections of the Union to the election of
June 12 and the challenged ballot
The Union has filed objections to the election of June
12. These objections are alleged as follows:
1. During the critical period the employer engaged in
extensive interrogation of employees about union activi-
ties.
2. During the critical period the employer threatened
employees with discharge and other adverse conse-
quences if they would not abandon the Union.
3. During the critical period the employer solicited
grievances and promised to remedy grievances.
4. During the critical period the employer discriminat-
ed against various employees by revoking truck privi-
leges, tranferring employees, and imposing new work
rules.
5. During the critical period the employer discrimina-
torily discharged James Noel.
In conformance with the foregoing findings of viola-
tions on the part of the Respondent of Section 8(aX1)
and (3) of the Act, Objections 1, 2, 3, and 5 are sus-
tained. The fourth objection filed by the Union to the
election charges that the employer discriminated against
various employees by revoking truck privileges, transfer-
ring employees, and imposing new work rules. The truck
privileges were invoked as a result of the Respondent's
reluctance to have his vehicles parked in front of a
tavern frequented by the employee driver even though
such circumstances arose outside the period of employ-
ment. The involved employees agreed that such a re-
quest was reasonable and chose to use their own vehicles
after hours rather than those of the Respondent. This is
not an unreasonable or discriminating adjustment of prior
conduct. The transferring of employees and the imposi-
tion of new work rules has not been established by a pre-
ponderance of the evidence to be of any substance and,
accordingly, the fourth objection is overruled. 7
The challenged ballots was that of James Noel. The
challenge arose at the insistence of the Board agent con-
ducting the election because Noel's name did not appear
on the eligibility list furnished by the employer. Since I
have found that Noel was discharged in violation of Sec-
tion 8(aX3) of the Act and as set forth below, Noel shall
be reinstated and the appropriate remedies in the case ap-
plied. As a result, Noel should have been eligible to vote
at the election and I find that the challenge to his ballot
is not sustained and that ballot shall be counted.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within meaning of Section 2(2), (6), and (7) of the
Act and the Board has jurisdiction over the subject
matter in the parties hereto and further that it will effec-
tuate the poliices of the Act to assert jurisdiction in this
case.
2. The Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(aXl) of the Act by:
(a) Interrogating its employees concerning their union
activities and sympathies and the union activities and
sympathies of other employees.
(b) Imparted the impression of surveillance of the em-
ployees' union activities.
(c) Solicited grievances from the employees with the
implied promise of remedying such grievances.
(d) Promised benefits to its employees in the form of
pensions and guarantees of employment.
(e) Offered to reimburse financial outlays of new union
members among its employees if the employees would
abandon the Union.
(f) Threatened the employees with loss of their jobs by
the hiring of other journeymen plumbers who are union
members.
(g) Threaten to discharge employees in the event of a
successful union election.
(h) Discharged James Noel because of his union activi-
ties.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(aX3) of the Act by
discharging James Noel because of his exercise of Union
and protected concerted activities.
5. The General Counsel has failed to establish by a
preponderance of the evidence in this record that the
Respondent has violated the Act by revoking certain em-
ployee privileges.
The aforestated practices comprise unfair labor prac-
tices affecting commerce within the meaning of the Act.
' Objections 6 and 7 have been withdrawn by the Union.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices it shall be ordered that it cease and desist
therefrom or from engaging in any similar or related
conduct and that it take certain affirmative action by
posting an appropriate notice, and taking certain affirma-
tive action designed to effectuate the purposes and poli-
cies of the Act.
Having found that the Respondent discharged James
Noel, I recommend that the Respondent be ordered to
reinstate him to his former position or, if such position
no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges he previously enjoyed and to make him whole
for any loss of earnings he may have suffered by reason
of his discharge by paying to him a sum of money equal
to that which he would normally have earned absent the
discharge, less earnings during such period to be comput-
ed in the manner described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed in the manner
described in Florida Steel Corp., 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962).
The General Counsel has requested that the remedy
appropriate in this case in regard to the representative
election on June 12, and all surrounding circumstances is
that the ballot of James Noel be counted and as a result
of such count a determination be made whether or not
the election of June 12 resulted in certification of repre-
sentation on the part of Respondent's employees and in
the event such ballot does not provide the Union with
the majority in such election that a bargaining order be
issued. Ordinarily, a tainted election should be held for
naught and declared null and void; however, in this case
in view of the potential that the election would have re-
sulted in a union majority notwithstanding the unlawful
conduct of the Respondent had Noel's ballot been count-
ed, it is prudent in the interest of time and expense to
validate the election if the Union obtains a majority as a
result of Noel's ballot.s The alternative remedy request-
ed by the General Counsel is the imposition of a bargain-
ing order on the Respondent. In order to impose a bar-
gaining order on the Respondent, it must be concluded
that the Respondent's unlawful conduct had a "tenden-
cy" to undermine the Union's majority. The unlawful
conduct undertaken by the Respondent here was of such
a degree in severity and frequency as to tend to under-
mine the Union's strength and to intimidate an employee
in the exercise of his free choice. It is also questionable
whether the conventional remedy of a cease-and-desist
order without the bargaining order would accomplish an
erasing of the effects of the Respondent's past practices
and ensure a fair election in the event a new election is
ordered, NLRB v. Gissel Packing Co., 395 U.S. 575, 614-
615 (1967). Accordingly, it is appropriate here for the
reasons expressed above to require that in the event the
counting of the ballot cast by James Noel does not give
the Union a majority that the Respondent be ordered to
negotiate with the Union as the certified representative
8 There were 23 ballots cast at the election, II for the petitioner and
II1 against the petitioner. The inclusion of Noel's ballot in the results of
the election, therefore, would tip the scale.
of the employees of Respondent comprising the appro-
priate unit.
On these findings of fact and conclusions of law and
on the entire record, I make the following recommend-
ed9
ORDER
The Respondent, The Gerber Company, Portland,
Maine, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees regarding their union ac-
tivities and sympathies or the activities and sympathies of
coemployees.
(b) Creating the impression of surveillance of its em-
ployees of their union activities.
(c) Soliciting grievances of the employees and by so
doing implying to resolve such grievances without nego-
tiations with the Union.
(d) Promising benefits to its employees without bar-
gaining regarding such benefits with the Union.
(e) Threatening employees with discharge or replace-
ment by other union journeymen plumbers.
(f) Offering benefits to employees to abandon the
Union.
(g) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions of
employment with Local 217, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, as
the exclusive bargaining representative of the Respond-
ent's employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees, including construction and
service employees employed by this Respondent at
its Portland, Maine location excluding office clerical
employees, professional employees, guards and su-
pervisors as defined by the Act.
2. Take the following affirmative action which has
been found to effectuate the policies and purposes of the
Act.
(a) Offer James Noel full reinstatement to his former
job or if said position no longer exists to a substantially
equivalent position of employment without prejudice to
his seniority or rights and privileges he formerly enjoyed
and to make him whole for any loss of pay or other ben-
efits which he may have suffered by reason of the unlaw-
ful discrimination practiced against him to be computed
in accordance with the F. W. Woolworth formula,'o with
interest calculated in accordance with the adjusted prime
rate used by the Internal Revenue Service to compute in-
terest tax payments. Florida Steel Corp., 231 NLRB 651
(1977); Isis Plumbing Co., 138 NLRB 716 (1962).
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
to F W. Woolworth Co., 90 NLRB 289 (1950).
1242
GERBER CO.
(b) Expunge from its files any reference to the dis-
charge of James Noel and notify him in writing that this
has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post in a conspicuous place on the Respondent's
premises copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by the
I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
1243
Regional Director for Region 1, 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 cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"