Gray Flooring

National Labor Relations Board - Board Decisions

Jul 31, 1974

212 N.L.R.B. 668 (N.L.R.B. 1974)

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern and Western Lumber Company d/b/a Gray
Flooring and United Brotherhood of Carpenters and
Joiners of America, Floor Coverers and Decorators
Local Union 1759 , AFL-CIO. Case 6-CA-6979
July 31, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 29, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as modified below.
The complaint alleged that Respondent violated
Section 8(a)(1), (3), and (5) of the Act. The Adminis-
trative Law Judge found no violations and recom-
mended that the complaint be dismissed in its
entirety. The General Counsel excepts, inter alia, to
the failure to find certain interrogations to violate
Section 8(a)(1) and the discharge of James Kelly on
September 24, 1974, to violate Section 8(a)(3) and (1).
We find merit in these exceptions.
In early September 1973,' Kelly got in touch with
the Union concerning organizing Respondent's em-
ployees. He thereafter received some authorization
cards, and he and certain other employees set about
getting Respondent's other employees to sign up with
the Union. There is no evidence that Respondent
knew at any time of Kelly's role in these activities. On
September 18, Union Agent Poplowski sent Respon-
dent a letter requesting recognition and on the follow-
ing day talked to Respondent's president, Gray,
stating that the Union represented a majority of
Respondent's employees. On September 20, Poplow-
ski asked Kelly to get him the names and addresses of
Respondent's employees so he could send them a let-
ter concerning a union meeting to be held on Septem-
ber 24.
September 22 was a Saturday and Kelly worked in
Respondent's warehouse till shortly after noon. In the
warehouse is the production office where are located
' All dates are 1973
the desks of supervisors Linderman and Fuscaldo.
Employees have free access to the office to get coffee,
to use a city map, to get work assignments and time-
cards, and for just visiting with the supervisors. Also
the supervisors' desks are usually covered with vari-
ous papers which employees may use in the course of
their work.
Sometime during the morning Kelly asked Linder-
man for a thumbtack to put a notice on the bulletin
board on the outside wall of the warehouse office.
Linderman told him he would find a tack on the bulle-
tin board. Kelly then posted a copy of Union Agent
Poplowski's letter to all employees, concerning a
union meeting for September 24, and its enclosure-
one of this Board's "Notices to Employees" outlining
certain employee rights under the Act. Linderman did
not actually observe the posting of the letter and no-
tice, but he did read them just after Kelly put them up
on the bulletin board.
Shortly after he stopped work at noon and also
shortly after Linderman had left for the day, Kelly
went into the warehouse office and began copying
names of employees from a schedule roster hanging
by Linderman's desk. Employee Griffin, who hap-
pened to be in the office at the time, asked Kelly what
he was doing and, on being told, asked if he needed
telephone numbers. When Kelly said he guessed they
would help, Griffin handed Kelly some index cards
containing employees' names and telephone numbers.
Usually the cards are kept in a pigeonhole over
Linderman's desk; however, Griffin testified that that
day he had picked them up off the top of Linderman's
desk. In any event, Kelly proceeded to write down the
employees names and telephone numbers.
After having given Kelly the cards, Griffin left the
office only to return a few munutes later to warn Kelly
that Franskousky, Respondent's vice president and
supervisor, was in the warehouse. Kelly said that was
all right as he was doing nothing wrong. Griffin left.
Shortly thereafter Franskousky came into the office,
saw Kelly copying the cards, and asked if Linderman
knew Kelly was theie. Kelly replied in the negative
and added that he was not doing anything wrong.
After vainly trying to get Linderman, Franskousky
took the cards. The next day he telephoned
Respondent's president, Gray, about the matter, and
on the morning of Monday, September 24, took Kelly
to Gray's office. There Gray asked Kelly if anyone
had told him to copy down the employees' names and
telephone numbers. Kelly said, "No." Gray then
asked if Kelly wanted to think about his "statement."
Kelly replied he did not understand; Gray repeated
his question and Kelly's reply was again "No." Then
Gray said: "You're fired for pilfering from company
records."
212 NLRB No. 107
GRAY FLOORING 669
The General Counsel, as noted, contends that the
discharge of Kelly violated Section 8(a)(3) and (1) of
the Act and that the above questioning by Gray at the
exit interview was unlawful interrogation. The Ad-
ministrative Law Judge did conclude-and properly
so-that "Respondent's sole reason for discharging
Kelly was the fact that it caught him using its records
without its permission to make a list of its employees'
names and telephone numbers for the Union." And in
reaching this result he rejected the Respondent's
claim that it had no knowledge of Kelly's prounion
activities, noting in this regard Supervisor
Linderman's reading of prounion material posted by
Kelly. He then brushed aside as incredible the testi-
mony by Franskousky and Gray to the effect that
despite the context of union activity in the plant it
never entered their minds that Kelly was copying data
for the Union. Nevertheless, he found no violation in
the discharge even though he found, correctly in our
view, that Kelly was clearly engaged in a concerted,
union activity. Instead, he held that activity unpro-
tected as it involved copying employees' names and
telephone numbers "surreptitiously from
Respondent's private records." Having held the activ-
ity unprotected, the Administrative Law Judge then
found that Gray's questioning Kelly at the "exit inter-
view" about that activity was not unlawful. We can-
not, as we have indicated, accept the Administrative
Law Judge's ultimate results here because the record
evidence does not support his finding that Kelly "sur-
reptitiously" copied the cards, and because we find
that the cards were not, in any meaningful sense, "pri-
vate records."
With respect to the former matter, Kelly's conduct
was, throughout the incident, open and frank. He did
not sneak into the office and the office was not one
where he had no right to be. Also he did not go there
to copy the cards. In fact it was Griffin's suggestion,
not Kelly's initial purpose, that resulted in the cards
being copied. Also neither when warned by Griffin
that Supervisor Franskousky was in the warehouse
nor when Franskousky entered the office did Kelly
attempt to cover up what he was doing or otherwise
attempt to dissemble. Thus, we obviously do not have
here a situation where an employee sought by devious
means to obtain his employer's confidential or private
information.
But even more, the information sought did not, as
we have stated, involve confidential or private rec-
ords. First, it is clear that the Respondent had had no
announced policy concerning the use of the note
cards by employees-at least prior to the incidents
involved in this proceeding. Second, the cards were
not maintained in a place or manner that would indi-
cate management considered them to be of a private
or confidential nature. On the contrary, as the facts
show they were located in an office frequented by
employees for various reasons-both social and
work-related-and were normally kept there either in
an open pigeonhole or on the top of desk regularly
visited by employees to get for themselves, without
supervision or the asking of permission, various pa-
pers and other information. Finally, there obviously
was nothing in the nature of the information on the
cards-that is, in the employees' names and telephone
numbers-to suggest to anyone that management
considered the cards to be "confidential" or "private"
records. In fact, the employees' names were openly
listed on the schedule roster hanging beside the desk
where the cards were kept.
Certainly management had no obligation to supply
Kelly or the Union with information useful in orga-
nizing its operations 2 and could, had it desired to do
so, properly have considered and treated all such in-
formation it had compiled as confidential and private
records unavailable to others. However, in view of the
foregoing, we believe it is quite obvious that manage-
ment did not in fact consider the note cards to be
either confidential or private records, nor put its per-
sonnel on notice that they were to be so regarded by
others. In view of the casual way the cards were han-
dled and in the absence of any announced contrary
policy the employees-and specifically Kelly-had
no reason to believe that any such policy of confiden-
tiality existed.
We therefore find that Kelly's conduct in issue here
was not unprotected.' Accordingly, we find that
Kelly's discharge on September 24 for engaging in
concerted union activity violated Section 8(a)(3) and
(1) of the Act. Also in view of our conclusion and
findings here, and in the absence of proper justifica-
tion, we further find that Gray's interrogation of Kel-
ly on September 24 concerning who asked Kelly to
compile the list of the employees violated Section
8(a)(1).
CONCLUSIONS OF LAW
In adopting the Administrative Law Judge's Con-
clusions of Law, we substitute for those numbered 3
and 4 the following:
"3. By discharging James A. Kelly on September
24, 1973, for engaging in protected concerted activi-
ties, Respondent violated Section 8(a)(3) and (1) of
the Act.
"4. By interrogating James A. Kelly on September
2 With, of course, the hunted exception provided by our rule set forth in
Excelsior Underwear Inc, 156 NLRB 1236 (1966).
3 See, for example, Ridgely Manufacturing Company, 207 NLRB No 32
(1973).
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
24, 1973, concerning who had asked Kelly to engage
in certain protected concerted activities, Respondent
violated Section 8(a)(1) of the Act."
THE REMEDY
Having found that the Respondent has violated
Section 8 (a)(1) and (3) of the Act, we shall order that
it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Also having found the discharge of James A. Kelly
to be unlawful , we shall order Respondent to offer
Kelly 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 other rights and privileges , and make him whole for
any loss of earnings he may have suffered as a result
of the discrimination against him by paying him a
sum of money he would have earned from the date of
his unlawful discharge to the date Respondent offers
reinstatement , less net earnings during that period.
Backpay shall be computed in accordance with the
Board 's formula set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest therein at the
rate of 6 percent per annum as provided in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
Since a discriminatory discharge of an employee
goes to the very heart of the Act (N.L.R.B. v. Entwistle
Mfg. Co., 129 F.2d 532, 536 (C.A. 4, 1941)) we shall
order that the Respondent cease and desist from in
any manner infringing upon the rights guaranteed
employees in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Southern and Western Lumber Company d/b/a Gray
Flooring, Pittsburgh, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against any employee because he engages in protected
concerted activity on behalf of United Brotherhood
of Carpenters and Joiners of America, Floor Coverers
and Decorators Local Union 1759, AFL-CIO, or any
other labor organization.
(b) Interrogating employees concerning their pro-
tected concerted activities in a manner constituting
interference, restraint, or coercion.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, as amended.
2. Take the following affirmative action which the
Board finds is necessary to effectuate the policies of
the Act:
(a) Offer James A. Kelly immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent one, with-
out prejudice to his seniority or other rights or privi-
leges, and make him whole for any loss of pay he may
have suffered by reason of Respondent's discrimina-
tion against him, with interest at the rate of 6 percent,
as provided in the section of the Board's Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount, if any,
of backpay due under the terms of this Order.
(c) Post at its premises at Pittsburgh, Pennsylvania,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
4 In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees for engaging
in union or other protected concerted activities
on behalf of United Brotherhood of Carpenters
and Joiners of America, Floor Coverers and Dec-
orators Local Union 1759, AFL-CIO, or any
other labor organization.
GRAY FLOORING 671
WE WILL NOT coercively question our employ-
ees concerning their union or other protected
concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights of self-organization, or to
form, join, or assist the United Brotherhood of
Carpenters and Joiners of America, Floor Cover-
ers and Decorators Local Union 1759, AFL-
CIO, or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in
all such activities.
WE WILL offer James A. Kelly immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent one, without prejudice to his seniority
and other rights and privileges, and make him
whole for any loss of pay he may have suffered
by reason of his discharge, with interest at the
rate of 6 percent per annum.
SOUTHERN AND WESTERN
LUMBER COMPANY d/b/a
GRAY FLOORING
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other, material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in this case was filed on September 19, 1973,1 and
amended on September 24 and November 30. The com-
plaint was issued on November 30 and amended at the
hearing. The hearing was held on February 6 and 7, 1974,
in Pittsburgh, Pennsylvania.
i Dates are 1973 unless otherwise indicated.
The principal issue litigated was whether Respondent vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, by discharging James A. Kelly on
September 24. For the reasons set forth below, I find that
it did not and that, therefore, Respondent did not commit
a Gissel-type 2 violation of Section 8(a)(5) and (1) of the Act.
(Respondent's motion to dismiss, which I took under ad-
visement at the conclusion of the hearing, is disposed of by
my findings below. Its motion to correct trial transcript is
hereby granted.)
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
oral argument and briefs, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent , a Pennsylvania corporation , is engaged in
Pittsburgh , Pennsylvania , in the business of selling and in-
stalling flooring and carpeting. During the year just prior to
issuance of the complaint, it provided services valued in
excess of $50,000 to Ryan Homes and other employers di-
rectly engaged in interstate commerce.
II THE UNFAIR LABOR PRACTICES
A. Facts
The following facts are essentially undisputed:
James Kelly contacted Joseph Poplowski (frequently
misspelled Potlowski in the transcript ), business representa-
tive for Local 1759, in early September about representation
of Respondent's employees. Poplowski mailed Kelly ap-
proximately 35 blank authorization cards. Kelly signed one
himself on September 6 and, with the help of four other
employees, circulated others among Respondent's employ-
ees.
On September 18 Poplowski mailed a letter to Respon-
dent in which he claimed to represent a majority of
Respondent's "floor covering and warehousing employees"
and demanded recognition . That same morning Poplowski
and a colleague went to Respondent's office and asked to
see G. Richard Gray, Jr., Respondent's president. Poplow-
ski had with him valid authorization cards 3 executed by 19
of Respondent's 30 production and maintenance employ-
ees. (He subsequently acquired four more.) He was told that
he could not see Gray without an appointment. Later that
day Poplowski called Gray's office and made an appoint-
ment for September 19.
On September 19 Poplowski and a colleague returned to
Gray's office. As they waited in the anteroom, the demand
letter which Poplowski had mailed the day before was deliv-
2 N L R B v Gissel Packing Co., Inc, 395 U S. 575.
3 G C Exh 2(e), an authorization card executed by Charles J Lang on
September 7, and G C hxh 2(f), an undated authorization card executed by
Russell Earl on September 7, were rejected on February 6, 1974. However,
they were received into evidence the next day after being properly authenti-
cated by the General Counsel Each bears a reporter 's stamp which correctly
shows that it was identified and received into evidence . However, they are
contained in a file labeled "Rejected Exlubits ." I hereby order that they be
transferred to the file labeled "General Counsel 's Exhibits."
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered. When they were ushered into Gray's office, the opened
letter was lying on Gray's desk . Gray's holstered gun was
hanging behind the desk. Poplowski introduced himself and
stated his business . Gray replied that Respondent would
only deal with Poplowski through the Labor Board.
Poplowski went directly to the Regional Office and filed
the initial charge in this case, alleging a violation of Section
8(a)(5) and (1) of the Act.
After Poplowski left, Gray called a meeting of all
Respondent 's supervisors . He informed them that Local
1759 was attempting to organize Respondent's employees.
He instructed them not to discuss the Union with employees
and not to, do anything about the situation, whether pro- or
anti-Union.
On September 20 Poplowski prepared a letter to
Respondent's employees announcing a meeting to be held
on the evening of September 24 "in order to further discuss
the present organizing of your shop." With each copy of the
letter he enclosed a copy of a form captioned "NOTICE TO
EMPLOYEES from the National Labor Relations Board"
which listed employees' Section 7 rights and some "exam-
ples of conduct which interfere with the rights of employ-
ees." He asked Kelly to get him the names and addresses of
Respondent's employees so that he could mail the letter to
those employees whose addresses he did not yet have.
Kelly worked overtime on the morning of Saturday, Sep-
tember 22, in Respondent's warehouse. In the warehouse is
a production office which is shared by John Linderman
(misspelled Lindeman throughout the transcript),
Respondent's supervisor of installation for ceramic , resil-
ient, and hardwood flooring, i.e., floors and floor coverings
other than carpets, and Bruce Fuscaldo, supervisor of
Respondent's truckdrivers. Each has a desk in the office.
The room is open to employees who freely enter it to get
coffee, use a map of the city which hangs on one wall, get
work assignments or timecards , or simply pass the time of
day with Linderman and/or Fuscaldo. Blank timecards are
kept in a rack on top of Fuscaldo's desk. Both desks are
usually covered with papers relating to work. Employees, on
occasion , use these papers in the course of their work with-
out special permission from Linderman or Fuscaldo.
Linderman was also in the warehouse on the morning of
September 22. During the course of the morning, Kelly
posted a copy of Poplowski's September 20 letter and the
enclosure on a bulletin board which hangs on the outside
wall of the production office near the door. Before he posted
them, he asked Linderman for a thumbtack. Linderman
told him there were some on the bulletin board. Linderman
was not aware of what Kelly was planning to post when he
asked for a thumbtack. He did not see Kelly post the letter
and notice . However, a few minutes after Kelly posted
them, Linderman came out of the office and read them. (I
do not consider Linderman 's "no" answers to question
whether he saw Kelly put the letter on ,the bulletin board or
had any knowledge that Kelly was active on behalf of the
Union prior to his discharge denials of Kelly's testimony.
Since , as Respondent 's brief makes clear , they were so in-
tended, I credit Kelly over Linderman.)
A few minutes after he finished work at noon Kelly went
into the production office. Linderman had left for the day
shortly before. James Griffin, a truckdriver, was in the of-
fice. Kelly began copying the names of Respondent's em-
ployees from work schedules which are posted over
Linderman's desk. Griffin asked Kelly if he needed the
telephone numbers of the men. Kelly replied, "Well, I guess
it would help." Griffin handed Kelly a packet of five or six
filing cards held together with a paper clip which list the
names and home telephone numbers of all employees. Grif-
fin picked them up from the top of Linderman's desk. They
are normally kept in a pigeon hole at the back of
Linderman's desk.
Griffin left the office as Kelly was copying names and
telephone numbers from the cards. In the warehouse, he saw
Regis Franskousky (misspelled Franskowski throughout the
transcript), Respondent's vice president and supervisor of
carpet sales and installation. Griffin returned to the office
to warn Kelly that Franskousky was in the warehouse. Grif-
fin said, "Jim, Reg is back there."
Kelly said, "That's OK. I'm not doing anything wrong."
Griffin said, "Yeah, but I know what you have to do is
about the Union."
Kelly said, "OK, I'm still not doing anything wrong."
Griffin said, "OK, I'm going home" and left.
Franskousky walked into the office and caught Kelly
copying information from the cards. Franskousky said,
"Does John [Linderman] know you're in here?"
Kelly said, "No, he doesn't." Frightened by
Franskousky's angry look, Kelly added, "Reg, I'm not
doing anything bad."
Franskousky went to the intercom system in the ware-
house. He called for Linderman but was informed that he
had left for the day. He returned to the office and took the
cards away from Kelly. Kelly left, taking his list with him.
(The record does not indicate whether it was complete or
not.)
Franskousky telephoned Gray at home on Sunday eve-
ning and told him what had happened.
On the morning of Monday, September 24, Franskousky
came to the warehouse and took Kelly to Gray's office.
Linderman was already there. Gray asked Kelly what he
had been doing in Linderman's office on Saturday. Kelly
said that he had been copying down a list of employees'
names and phone numbers. Gray said, "Did anyone tell you
to do that?"
Kelly said, "No, sir."
Gray said, "Do you want to think about that statement?"
Kelly said, "I don't understand."
Gray said, "Do you want to think about that statement?"
Kelly said, "No."
Gray said, "You're fired for pilfering from company re-
cords."
Later that morning, Kelly telephoned Poplowski and told
him he had been discharged and that the reason he had been
given was pilfering from company records. Poplowski im-
mediately amended the charge in this case to add an 8(a)(3)
and (1) allegation.
The next morning approximately 25 of Respondent's em-
ployees struck. When they tried to see Gray, they were told
he was unavailable that morning but would meet with a
delegation of four of them that afternoon. They telephoned
this news to Poplowski. Poplowski instructed them to insist
either on a meeting with Gray which all of them would be
GRAY FLOORING 673
permitted to attend or one in which four of them would be
accompanied by Poplowski. They relayed this position to
Gray. Gray refused to see all of them in a group or Poplow-
ski under any circumstances . No meeting with Gray took
place, either that day or subsequently . Poplowski attempted
to contact Gray by telephone without success during the
strike. On September 26 Gray sent each striker a letter
which read:
This letter is not an effort to dissuade you from your
views.
It is simply to notify you that the Company is contin-
uing its operations and that there is work for you here
now, as there has been in the past.
The men began picketing Respondent's place of business
on the morning of Wednesday, September 26. They picket-
ed through the following Monday. They returned to work
on the morning of Tuesday, October 2. As Wilbert Klaas
(misspelled Kloas throughout the transcript), manager of
Respondent 's home remodeling division , was passing out
job sheets to the men under his supervision, he said , "I don't
think you fellows are going about this the right way. I think
if you went to see Rich [Gray], he would give you something
pretty good ." (This finding is based on the testimony of
Charles Kaib, a carpenter . Klaas' version of the comment
he made at that time was "I think this matter could have
been handled like the matters before, Rich Gray could have
handled this matter." I do not consider this a denial of
Kaib's testimony or significantly different from Kaib's ver-
sion of what Klaas said . Since, as Respondent's brief makes
clear, it was so intended, I credit Kaib over Klass.)
B. Analysis and Conclusions
1. Allegations of independent 8(a)(1) violations
Mark Miksic testified that on an unspecified Saturday
following September 24, Gray approached him in the store
and asked him how the Union was going. Miksic , busy with
a customer at the time, simply shrugged and answered,
"Fine." The General Counsel thereupon moved to amend
the complaint to add an allegation of interrogation of em-
ployees "concerning their union membership, activities and
sympathies , and the union membership, activities and sym-
pathies of their fellow employees" by Gray "on or about
November 1973." The General Counsel admitted that he
knew about this evidence prior to opening of the hearing.
Since he had not moved to amend the complaint in this
regard at the opening of the hearing, I denied his motion on
the ground that it was untimely made. I hereby reaffirm that
ruling. Even if this incident falls within the allegations of
paragraph 6(a) of the complaint that Gray, Linderman, and
Franskousky engaged in such interrogation on September
24 and Klaas on October 2, I would find nothing coercive
and, therefore , nothing illegal in this exchange.
The September 24 interrogation allegation is predicated
on Kelly's discharge interview that day. My reasons for
finding that Kelly's discharge did not violate Section 8(a)(3)
and (1) because he was discharged for engaging in an unpro-
tected union activity are set forth in the next section . In view
of that conclusion , I find nothing coercive in the sense that
they would constitute an independent violation of Section
8(a)(1) about the questions which Gray put to Kelly on
September 24.
The October 2 interrogation allegation is predicated on
Klaas' statement to employees that morning that Gray
would give them something pretty good if they went to him.
It is obviously not interrogation in any sense of that term
of art. I can only assume the complaint is framed that way
because the General Counsel anticipated a different re-
sponse from his witness . However, the words Klaas spoke
are susceptible of the interpretation that Respondent was
making an implied promise of benefits to employees if they
ceased or refrained from union activities , as much an inde-
pendent violation of Section 8(a)(1) as interrogation. Even
if I were to find such a violation , I would not recommend
an order or remedy since, in view of my findings as to all
the other allegations of the complaint , it would be an isolat-
ed incident. In view of the possible due process problem
created by the muddled nature of the General Counsel's
pleading, I find Respondent, in the person of Wilbert Klass,
did not violate Section 8(a)(1) of the Act by interrogating
employees on or about October 2.
At the conclusion of the General Counsel's case in chief,
I granted Respondent 's motion to dismiss an allegation that
Respondent had, on or about December 20, "threatened
employees with a reduction of available work if they select-
ed the Union as their collective-bargaining representative,"
on the ground that the General Counsel had failed to make
out a prima facie case. I hereby reaffirm that ruling. This
allegation was predicated on a speech Gray made to the
employees on December 20 in which, in the context of
references to the history of the Company, the fact it had
always been one, big, happy family , and the cloud which the
Union had placed over it, he said there was no way Respon-
dent could compete if it had to pay union wages. (More
precisely, the three separate versions of this remark in the
-record are "they couldn't have a union in the company
because we bid so close on those jobs" (James Griffin),
"they bid the jobs really close to be competitive and that if
the union would get it, possibly we might lose contractors"
(Ronald Trader), and "there was no way he could compete
with other flooring companies if he had to pay us union
wages" (John Windisch).) This was a prediction of a future
event over which Respondent had no control and not a
threat of an action inimical to employees within
Respondent's control.
2. The discharge of James Kelly
The General Counsel contends, first, that this is a routine
pretext case , i.e., that Respondent discharged Kelly because
of animosity growing out of his efforts to organize
Respondent's employees , whether those activities be his
leadership in the organizing campaign, his posting of the
Union's letter and notice on the bulletin board, or his copy-
ing of names and telephone numbers from Respondent's
record, and that the reason advanced by Respondent is a
pretext masking its real motive. There is no merit to such an
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument. There is no evidence in the record on which to
base a finding that Respondent was aware Kelly had taken
the initiative in contacting the Union or had been responsi-
ble for introducing authorization cards into its shop. While
there is evidence of anti-union animus in the sense that
Respondent is opposed to organization of its employees,
there is little evidence such as independent 8(a)(1) violations
to indicate that Respondent was so violently opposed that
it would break the law by discharging the leader as a warn-
ing to other employees. On the contrary, it is significant in
this respect that, according to Kelly's credited testimony,
Linderman merely read the letter and notice soon after
Kelly posted them. If Respondent's "animus" was of a level
to explain its discharge of Kelly, I have no doubt Linderman
would have removed letter and notice as soon as he saw
them on the bulletin board. Most important, there is no
evidence of any disparate application in Kelly's case of the
reason given by Respondent for discharging Kelly.
"Pilfering from company records" was the reason given
to Kelly when he was discharged. It is the reason advanced
by Respondent throughout the hearing. By it, Respondent
simply means that it discharged Kelly for copying names
and telephone numbers of its employees from the cards kept
on Linderman's desk. Despite the fact that Respondent's
answer is couched in terms of "unauthorized and clandes-
tine entry into the office of supervisory employees of Re-
spondent . . . without Respondent's knowledge and
consent," it is a fact, as stressed by the General Counsel,
that Kelly's being in the office a few minutes after noon on
September 22 when neither Linderman nor Fuscaldo was
there was nothing unusual. It is also a fact, also stressed by
the General Counsel, that it is not unusual for employees to
look at or even use the papers on Linderman's and
Fuscaldo's desks in connection with their work. The only
evidence, however, that would create a true disparity would
relate to use of the materials on the desks without
Respondent's permission for a purpose not related to an
employee's work. In that regard, the only evidence in the
record is the testimony of James Griffin that he once got the
telephone number of John Windisch from the cards in order
to call Windisch on a matter unrelated to their work. How-
ever, Griffin conceded, and Linderman corroborated, that
Griffin did so only after first asking Linderman's permission
to use his cards. It is clear, therefore, that no inference can
be drawn from this record on the basis of disparity of treat-
ment accorded Kelly and other employees by Respondent
when employees have used its records for nonwork purpos-
es.
A major element of Respondent's defense is its conten-
tion that it had no knowledge of Kelly's union activities
when it discharged him; therefore, it could not have been
motivated by them. I have already found it was unaware of
the scope of those activities. However, it is clear, from
Kelly's uncontradicted account of asking Linderman for a
thumbtack, posting letter and notice on the bulletin board,
and watching Linderman read them a few minutes later,
that Respondent had knowledge of that particular union
activity prior to discharging Kelly. More germane to the
issue posed by this case is whether Respondent was aware
Kelly was copying information from its records for the
Union. To this end, Franskousky and Gray each testified
the thought never crossed his mind in connection with the
discharge of Kelly that Kelly was copying data for the
Union. Gray testified, affirmatively, that the thoughts
which did occur to him related to an effort of a competitor
some years ago to steal his employees and some recent
burglaries in which records such as bids were taken. I do not
believe either one of them. Franskousky and Gray are high-
ly intelligent, sophisticated businessmen. That they would
have caught Kelly making a list of Respondent's employees'
names and telephone numbers only 3 days after Poplowski's
demand for recognition and only 2 days after receipt of a
copy of the original charge in this case and not immediately
have surmised Kelly was working for the Union strains my
credulity beyond the breaking point. Anserphone of Michi-
gan, Inc., 184 NLRB 305 (1970). I find, therefore,
Respondent's sole reason for discharging Kelly was the fact
that it caught him using its records without its permission
to make a list of its employees' names and telephone num-
bers for the Union.
Making a list of names and telephone numbers for the
Union is obviously a concerted and union activity. Wheth-
er, under all the circumstances of this case, it is also a
protected activity, as the General Counsel contends, is what
this case is really all about. Clearwater Finishing Co., 100
NLRB 1473, enforcement denied 203 F.2d 938 (C.A. 4), is
the strongest case cited by the General Counsel for the
proposition that it is. There, the Trial Examiner found viola-
tions of Section 8(a)(3) and (1) in the discharges of one
Livingston and one Hutto where Livingston, a clerk, copied
company maintenance records at the behest of Hutto, a
union official, in anticipation of the respondent's defense in
a prior unfair labor practice case. The Board reversed as to
Livingston, sustained as to Hutto, saying:
Although superficially the cases of Hutto and Liv-
ingston might appear to be similar , we believe there are
several important points of distinction.
It was not shown that Livingston was, or was sus-
pected to be, a member of the Union. Moreover, at the
time of Livingston's discharge , the Respondent had not
been apprised by Hutto of his purpose in obtaining the
list. Unlike Hutto, Livingston was not a plant employ-
ee, but was a clerk , charged with the proper custody of
the Employer 's records . It was clearly inconsistent with
the performance of his duties for Livingston to disclose
such records, whether or not of a confidential nature,
to Hutto. Such an indiscretion on Livingston's part
might well be deemed by the Respondent to demon-
strate his lack of fitness for his job as custodian of the
Respondent's records , as the Respondent was entitled
to have such a position occupied by an employee in
whose discretion it had implicit confidence . In view of
all these circumstances, particularly the lack of evi-
dence that the Respondent knew , at the time it dis-
charged Livingston, of the purpose of the list , and the
fact that Livingston himself was unaware of its pur-
pose , we find , unlike the Trial Examiner, that Living-
ston was not discharged for engaging in concerted
activities , and that his discharge did not violate the Act.
Hutto, however, was an officer of the Union, and, as
GRAY FLOORING 675
found by the Trial Examiner, this fact was known to
the Respondent before his discharge . Moreover, the
Respondent was apprised by Hutto, before it dis-
charged him on December 16, of his purpose in obtain-
ing the list of AFE jobs. Unlike Livingston, Hutto's
conduct in obtaining the list had no bearing on his
future usefulness in his job, which was that of mill-
wright. The Respondent contends that he was dis-
charged solely because he procured the disclosure of
confidential information . The Trial Examiner found,
however, that this was not the true reason for Hutto's
discharge but that he was, in fact , discharged for engag-
ing in activity designed to aid the Union to obtain
evidence to be used in the then pending unfair labor
practice case (Case 10-CA-620). We agree.
Like the. Trial Examiner, we are not persuaded that
the Respondent actually regarded the list of its AFE
jobs as confidential information , or had any business
reasons for objecting to the disclosure of such informa-
tion . This is underscored by the fact that the same
information had been posted on plant bulletin boards
at various intervals during that period . There was no
evidence, or contention , that this information was in
the nature of a "trade secret," or that the Respondent
could have been prejudiced in any way by the release
of the list except for its possible use as evidence in Case
10-CA-620. As the only reason alleged by the Respon-
dent for Hutto 's discharge is not , in our opinion , credi-
ble, and as there is no other apparent reason for the
discharge except the Respondent's opposition to his
activity on behalf of the Union in preparing and ob-
taining evidence in support of the 1949 charge , we find,
like the Trial Examiner, that Hutto 's discharge violated
Section 8(a)(3) and (1) of the Act. [Footnotes omitted.]
Here, without doubt, Kelly is more akin to Hutto than to
Livingston . Kelly did not occupy the sort of clerk position
that would have entitled Respondent to an employee in
whose discretion it had implicit confidence . Thus, by copy-
ing Respondent 's records, Kelly did not demonstrate his
lack of fitness for his job. Also, the records Kelly copied
were in no sense confidential . Gray's claimed thought pro-
cesses to the contrary notwithstanding, names and tele-
phone numbers of employees are not a trade secret and
there is no way Respondent could have been prejudiced by
their release except for their possible use as an aid in the
Union's efforts to organize its employees . In fact, it would
be difficult to imagine anything more innocuous for Kelly
to "pilfer." Given the small size of the unit involved here,
Kelly could easily have asked any employees not already
known to him by name what their names were. The numbers
(and, for that matter , addresses , the information Poplowski
was most interested in and the one thing not contained on
the cards) he could have looked up in a telephone book. The
fact that Respondent did not keep the cards under lock and
key but left them openly on top of Linderman's desk so that
Linderman could use them to call employees at home to
direct them whatjob to go on is a measure of the importance
Respondent attached to the cards. However, the legal prin-
ciple at issue does not turn on the importance of the records
involved.
Clearwater is cited most recently in Ridgely Manufactur-
ing Company, 207'NLRB 193 (1973 ), where the Board af-
firmed Administrative Law Judge Jennie M . Sarrica
without comment . That case involved the discharge of one
Durban , who had the temerity to ask the respondent for a
list of its employees ' names and addressed for union orga-
nizing purposes . Judge Sarnca wrote:
Although the purpose of this activity was for use by
the Union in organizing and was clearly concerted ac-
tivity, the question remains whether it was also protect-
ed activity. The applicable rule of thumb seems to be
that employees are entitled to use for self-organiza-
tional purposes information and knowledge which
comes to their attention in the normal course of work
activity and association but are not entitled to their
Employer's private or confidential records .9 Thus, Re-
spondent could rightly deny Durban the list of its em-
ployees and their addresses and he would not be
protected in obtaining such list from Respondent's re-
cords surreptitiously . He was, however, protected in his
actions of requesting such list from the top official in
charge of the plant.
Thus, protection for such activity depends on the
question of whether timecards located by the timeclock
fall into the category of private or confidential records
of the Employer or constitute information available to
all employees in the course of their normal work rela-
tionship . I place them in the latter category as a source
through which any employee may learn ' the names of
his fellow employees as rightfully as through personal
in-plant contact. Accordingly,1 conclude that when he
was memorizing the names of fellow employees from
the timecards for the purpose of contacting them con-
cerning union representatioii, he was engaged in pro-
tected activity.
9 See Murray - Ohio Manufacturing Company, 148 NLRB 1541, enfd
358 F.2d 948 (C.A. 6); Steele Apparel Company, Inc., 172 NLRB 903,
912-913 , enfd . in pertinent part 437 Fi2d 933; Anserphone of Michigan,
Inc., 184 NLRB No. 31, compare , e.g., The Hoover Company, 12 NLRB
902, Clearwater Finishing Company, 100 NLRB 1473; Vitronic, Incorpo-
rated, 183 NLRB No. 103, and Farlow Rubber Supply, Inc., 193 NLRB
570.
Here, Kelly did not attempt to memorize names of em-
ployees from timecards or, an analogous source, posted
work schedules . He attempted to copy them and telephone
numbers surreptitiously from Respondent's private records.
I find , therefore , that the activity for which he was dis-
charged on September 24 was unprotected and Respondent
did not violate Section 8(a)(3) and (1) of the Act.
° Other cases cited by the General Counsel in oral argument and/or in his
brief are inapposite . Whiten Machine Works, 100 NLRB 279, involved the
misleading of employees about the use to which a paper on which they were
asked to write their names and addresses was to be put Murray-Ohio Manu-
facturing Company, supra, involved the discharge of a timekeeper who re-
quested lists of employees from other timekeepers . Cello-Foil Products, Inc,
Continued
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
The only unfair labor practice I could find on this record
is one that Respondent interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights
on October 2 when Wilbert Klaas impliedly promised them
benefits if they ceased or refrained from union activities.
Even the General Counsel does not contend that this alone
is sufficient to support a Gissel theory that Respondent, by
its unfair labor practices, has made a fair election unlikely
or authorization cards a more reliable test of the desires of
Respondent's employees as to union representation. I find,
therefore, that Respondent has not violated Section 8(a)(5)
and (1) of the Act by refusing, at all times since on or about
September 19, to recognize and bargain with the Union.
Respondent raised a defense at the hearing to the 8(a)(5)
aspect of this case which, in light of this finding, I technical-
ly do not reach. I turn to it nonetheless so that this decision
will resolve all the issues raised.
The complaint alleges, and the answer admits, that all
production and maintenance employees of Respondent at
its Freeport Road, Pittsburgh, Pennsylvania, location, in-
cluding floor covering installers, helpers, drivers, ware-
housemen, yardmen, remodelers, and laborers; excluding
salesmen, store clerks, office clerical employees and guards,
professional employees and supervisors as defined in the
Act, constitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act. However, Respondent contended that there is a fatal
variance between a unit so described and the unit of "floor
covering and warehousing employees" demanded by Po-
plowski in his letter of September 18 and on the occasion
of his visit to Gray's office on September 19. Respondent
advanced two grounds to support this argument.
First, Respondent pointed out that, while drivers and
remodelers are properly included in an appropriate unit,
Poplowski's "floor covering and warehousing employees"
171 NLRB 1189, involved the discharge of a nonstriking office employee who
was suspected of keeping strikers informed about what was going on in the
plant Steele Apparel Company, supra, like Ridgely, supra, involved the copy-
ing of names from timecards. The distinction drawn in Rrdgely between the
protection afforded by the Act to an employee who copies names from
timecards which are displayed for all to see and the lack of protection for
an employee who copies "private records" is the distinction on which
this case turns. News-Texan, Inc, 174 NLRB 1035, involved information
obtained by an employee in the course of a conversation with her foreman
about the employer's business plans Anserphone of Michigan. Inc, supra.
involved the discharge of an office manager for forwarding lists of employees
to a union as a pretext for getting rid of a union adherent This is not a pretext
case
phrase does not include them. Second, and more strenuous-
ly, Respondent contended that Poplowski did not intend to
include Respondent's ceramic tile setters in his request be-
cause that particular craft falls under the jurisdiction of a
sister local in the Pittsburgh area. Neither position is fully
developed in the record. What little evidence there is does,
in fact, show a sufficient community of interest between
drivers and remodelers on the one hand and "floor covering
and warehousing employees" on the other to make their
inclusion appropriate. I do not think Poplowski's failure to
spell out them or, for that matter, any other specific inclu-
sions in his demand letter is a sufficient variance from the
more precise language of the complaint to render the
Union's demand for recognition legally inoperative. As to
the ceramic tile setters issue, whatever the facts are as to
jurisdictional lines and trade practices with respect to car-
penters in the Pittsburgh area, it is clear that Respondent's
employees in the classification do, at times, put ceramic tile
on floors. Consequently, they are encompassed in
Poplowski's "floor covering ... employees." I find, there-
fore, that the Union demanded recognition from Respon-
dent on September 19 as the collective-bargaining
representative of an appropriate unit of Respondent's em-
ployees at a time when the Union represented a majority of
the employees in that unit.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Southern and Western Lumber Company d/b/a Gray
Flooring and Ryan Homes are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Floor Coverers and Decorators Local Union
1759, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent vio-
lated Section 8(a)(1) of the Act by interrogating employees
on or about September 24 and October 2, 1973, and by
threatening them on or about December 20, 1973, have not
been sustained.
4. The allegation of the complaint that Respondent has
violated Section 8(a)(3) and (1) of the Act by discharging
James A. Kelly on or about September 24, 1973, has not
been sustained.
5. The allegation of the complaint that Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union at all times since
September 19, 1973, has not been sustained.
[Recommended Order omitted from publication.]