Hapsco, Inc.

National Labor Relations Board - Board Decisions

May 5, 1972

196 N.L.R.B. 936 (N.L.R.B. 1972)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heating-Air Conditioning Plumbing Supply Co., d/b/a within 3 days after the revised tally of ballots has been
Hapsco, Inc. and Chauffeurs, Teamsters & Helpers furnished, he shall issue the appropriate certification
Local 150, International Brotherhood of Teamsters , pursuant to Section 102.69(g) of the Board's Rules
Chauffeurs , Warehousemen & Helpers of America . and Regulations, Series 8, as amended.
Cases 20-CA-6796 , 20-RM-1386, and 20-RC-
9986
May 5, 1972
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On March 9, 1972, Trial Examiner Herman Marx
issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief and the General Counsel filed a 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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order, and to direct that the chal-
lenged ballot of Timothy J. Palmer be opened and
counted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Heating-Air Conditioning Plumbing Supply Co.,
d/b/a Hapsco, Inc., Sacramento, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain representatives for the purposes of
collective bargaining among certain employees of
Heating-Air Conditioning Plumbing Supply Co.,
d/b/a Hapsco, Inc., Sacramento, California, in the
unit found appropriate in Cases 20-RM-1386 and
20-RC-9986, the Regional Director for Region 20
shall, at a time and place to be determined by him,
open and count the ballot of Timothy J. Palmer and
thereafter prepare and cause to be served on the par-
ties a revised tally of ballots, including therein the
count of said ballot, upon the basis of which, if no
objection to such revised tally is filed by any party
1 The Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: On May 19, 1971, pur-
suant to a stipulation for a "consent election" in Cases
20-RC-9986 and 20-RM-1386 between Heating-Air Con-
ditioning Plumbing Supply Co., d/b/a Hapsco, Inc. (herein
the Company or Respondent) and a labor organization
(herein Local 150 or the Union),' the National Labor Rela-
tions Board (herein the Board) conducted a representation
election among employees of the Company in an appropri-
ate bargaining unit, with the result that of the three ballots
cast, one was cast for the Union and one against it, and a
ballot cast by an individual named Timothy J. Palmer was
challenged by the Company on the asserted basis that he
had been terminated prior to the election.
On June 4, 1971, the Union initiated Cases 20-CA-6796
by filing an unfair labor practice charge against the Compa-
ny, alleging that Palmer had been discriminatorily dis-
charged in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended,2 (herein the
Act). Following an investigation, the Regional Director for
Region 20, on behalf of the Board's General Counsel, issued
a complaint alleging that the Company had violated Section
8(a)(l) of the Act by interrogating employees concerning
their union activities or sympathies, and by making prom-
ises of benefits to employees to induce them to abandon
their support of the Union, and had discriminatorily dis-
charged Palmer in violation of Section 8(a)(1) and (3) of the
Act. On the same date, the Regional Director issued a "Sup-
plemental Report" on the challenged ballot, stating, inter
alia, that the challenge and the unfair practice allegations of
the complaint "involved substantial and material issues of
fact which constitute a single, overall controversy, and
directing that a hearing be held on the issues raised by the
challenge, and that such hearing be consolidated with one
to be held before a duly designated Trial Examiner in Case
20-CA-6796.3
The Respondent has filed an answer denying, in sub-
stance, that it committed the unfair labor practices imputed
to it.
1 As used herein, the designations "Local 150" and "the Union" refer to
a labor organization named Chauffeurs, Teamsters and Helpers Local 150,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America.
2 29 U.S.C. 158(a)(1) and (3).
3 The Regional Director's "Supplemental Report" rescinded a previously
made "Report on Challenged Ballot," dated June 3, 1971, on the asserted
ground that the investigation of the charge revealed facts not previously
known to the Regional Director at the time of issuance of the "Report on
Challenged Ballot." That report had contained a recommendation that the
challenge be sustained.
196 NLRB No. 148
HAPSCO, INC. 937
A hearing in the consolidated proceedings was held be-
fore me, as duly designated Trial Examiner, at Sacramento,
California, on September 23, 1971. The Board's General
Counsel and the Respondent appeared through respective
counsel, and all parties were afforded a full opportunity to
adduce evidence, examine and cross-examine witnesses,
and submit oral argument and brief 5,4
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having read and considered
the briefs submitted to me since the hearing, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY 'S BUSINESS;
JURISDICTION OF THE BOARD
The Company is a California corporation ; maintains a
place of business , including an office and a warehouse, at
Sacramento , California , where it is engaged in the sale of
heating and air-conditioning equipment at wholesale; and
is, and has been at all material times, an employer within
the meaning of Section 2(2) of the Act.
In the course and conduct of its business operations dur-
ing the year immediately preceding the issuance of the com-
plaint , the Company purchased goods valued in excess of
$50,000 directly from suppliers located outside the State of
California. By reason of such purchases, it is, and has been
at all material times, engaged in interstate commerce, and
in operations affecting such commerce , within the meaning
of Section 2(6) and (7) of the Act. Accordingly , the Board
has jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 150 is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company's labor force normally numbers some 9 or
10 individuals, including sales and clerical personnel (not
involved in this proceeding), a truckdriver and 2 warehouse
employees. The alleged discriminatee named in the com-
plaint, Timothy J. Palmer, was the Company's truckdriver
between December 1, 1970, the date he was hired, and his
discharge on April 15, 1971, under circumstances to be de-
scribed later. The two warehousemen during Palmer's em-
ployment were Steven McKelvey and an individual
variously identified in the record as `Loren Bacardy," "Mc-
Carty," and "Macardy" (and referred to below as "Mc-
Carty" for convenience of identification).
McKelvey entered the Company's employ in or about
September 1967, working as a truckdriver until December
1967 when he left to enter military service. Following its
completion, he reentered the Company's employ in March
1971. Palmer had by then been its truckdriver for several
months, and upon McKelvey's return, the latter was as-
signed to warehouse duties. McCarty has been in the
Copies of the charge, the complaint, the Regional Director's "Report on
Challenged Ballot ," his "Supplemental Report on Challenged Ballot," his
order of consolidation, and a notice of hearing in the consolidated proceed-
ings have been duly served on the Respondent. Copies of the "Report on
Challenged Ballot," "Supplemental Report," consolidation order, and notice
of hearing have also been duly served on the Union.
Respondent's employ for some 6 or 7 years, and during the
period of Palmer s employment, divided his time between
the warehouse and duties in the Respondent's office.
The Company's operations are under the management
and direction of two of its corporate officers, Dave eagle,
its secretary and treasurer, and Bob Beamer, its presi-
dents
On or about April 1, 1971,6 McKelvey and Palmer tele-
phoned Local 150 and requested that it send a representa-
tive to meet with them with a view of their joining the
organization. The details of such a meeting are not spelled
out in the record, but, as Palmer testified, he and McKelvey
"signed the papers to try to go union," or, in other words,
in some written form, signified an interest in having the
Union serve as their bargaining representative. As is evident
from the record as a whole, this occurred in or about the
early part of April.
On April 8, the Union sent at telegram to the Company
stating, in substance, that the Company's driver and ware-
house employees had authorized the Union to serve as their
collective-bargaining representative, and requesting a meet-
ing with the Company.
On April 14, the Company filed a petition (Case 20-RM-
1386) with the Board's Region 20, seeking a representation
election among the employees in a bargaining unit defined
substantially as the Company's "drivers and warehouse-
men."
On April 15, the Company discharged Palmer and re-
placed him as driver with McKelvey. With that replace-
ment, McCarty was assigned full time to the warehouse,
where he has since worked on that basis.
The Company's petition, and one seeking certification
filed by the Union with Region 20 on April 19 (Case 20-
RC-9986), led to an agreement between the Union and
Company for a "consent election" among employees in the
relevant unit. The election was held on May 19, and three
ballots were cast, including one by Palmer, notwithstanding
his prior discharge. (As is evident, the other two were cast
by McKelvey and McCarty.) Of the three ballots, one was
cast for the Union, and one against it, and the third,
Palmer's, was challenged on the ground that he was no
longer an employee of the Company.
The validity of the challenge hinges on a determination
whether the discharge was unlawful. Findings on that issue
will be made at a later point following a resolution of the
General Counsel' s claim that the Company unlawfully in-
terrogated employees regarding their union activities or
sympathies and offered them benefits to induce them to
abandon support of the Union.
B. The Alleged Interrogation and
Promises of Benefits
On April 9, the day following receipt of the Union's
telegraphic claim of representation, Seagle and Beamer
summoned Palmer to their office, told him that they wished
to discuss the Union with him, referred to a "hospitaliza-
tion" and "profit-sharing" program (not elaborated in the
record) that the Company has, and asked him why he and
McKelvey wished to join the Union. Palmer, whose salary
was $400 a month, replied, in substance, that he and Mc-
Kelvey "couldn't live' on what they were being paid, had
insufficient time for lunch, and were working excessive
time. Seagle then offered Palmer an increase of $100 in his
monthly salary, and told him that he would be given "fast
5 As is evident, Seagle and Beamer are , and have been at all material times,
supervisors within the meaning of Sec. 2(11) of the Act.
Unless otherwise indicated , all dates set forth below occurred in 1971.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advancement," and would not have to work during his
lunch period or before 8 a.m. or after 5 p.m . Palmer said
"no" to the offer, "because I wanted to see how the teamster
thing (union representation) worked out."7
Seagle did not expressly condition the offer upon
Palmer's abandonment of the Union, but it is evident from
Palmer's reply that he read such a condition into the offer.
In any case, I am persuaded , and find , that the underlying
purpose of the offer was to induce Palmer to abandon his
support of the Union.
Seagle and Beamer had a conversation in much the same
vein on the same day with McKelvey , seeking him out for
that purpose while he was at work in the warehouse .8 Seaggle
asked McKelvey whey he "want[ed] to go union ," and 1^Ic-
Kelvey replied that they" (the Union) offered him "more
benefits ." Seagle then "brought up" the Company 's "hospi-
talization" and "profit-sharing" program , and McKelvey,
whose monthly salary , until that pay period , had been $460
(as reflected in his payroll record in evidence ), replied, in
substance , that he was aware of such benefits , but that his
salary was insufficient to cover his family's living costs.
Seagle then said that if McKelvey had asked for ` 6 bills"
(in other words , an increase in his salary to $600 a month)
the Company would have given it to him; and inquired
whether there was any way in which the Company could
"change". McKelvey's attitude concerning union represent-
ation . McKelvey replied in the negative.
Seagle 's inquiry, in the context of his prior assurance to
7 Findings regarding the conversation between Seagle and Beamer and
Palmer are based on Palmer's testimony. I do not credit denials by Seagle
and Beamer that either asked Palmer how he felt about the Union, or made
him any offers of benefit. Beamer tells us little of what was said, claiming
that he was on the telephone most of the time while Palmer was in the office:
In substance, the sum of Beamer's version is that he "explained to Tim
(Palmer) the functions of our business, the wages." Why Beamer would point
all this out to Palmer did not appear on Beamer 's direct examination until
almost its end when, in response to a question by the Trial Examiner , Beamer
conceded that he and Seagle told Palmer that "we'd like to talk to you about
this union situation." Seagle pictures himself as calling Palmer to the office
to outline the Company's benefits, and as describing them to Palmer, but, as
in Beamer 's case, Seagle's account of what he said, given in response to his
direct examination by the Respondent 's counsel , contains no indication that
the discussion involved the subject of unionization; and it was only after the
close of his direct examination by the Respondent's counsel that Seagle
testified, in response to a question by the Trial Examiner, that he mentioned
the Union to Palmer, stating that he told Palmer that the management
understood "that the union is trying to organize our company." The sum of
the matter is that both Seagle and Beamer appeared to me to be lacking in
candor, and I am unable to regard their accounts of their conversation with
Palmer, as well as of a somewhat similar one they had with McKelvey on the
same day, as a reliable basis for findings as to what was said on either
occasion. I am convinced that Seagle's and Beamer's underlying purpose in
each conversation was to ascertain why the employee in question desired
union representation, and to attempt to turn him against it; and I have made
corresponding findings regarding details of both conversations.
8 Seagle and Beamer also had some discussion that day with McCarty on
the subject of unionization, but McCarty did not testify, and there is nothing
of substance regarding the matter in the record beyond a statement by Seagle
that he and Beamer spoke to McCarty, "too"-the context of that testimony
conveying an intimation that the conversation was "basically" the same as
the discussions that day with McKelvy and Palmer. Although it is evident
that the subject of unionization was at the bottom of the conversation with
McCarty, the record is insufficient to spell out details or the legality of what
Seagle and Beamer said to McCarty, and I make no findings in that regard.
9 Findings as to the discussion are based on McKelvey's testimony. As
previously indicated, Seagle and Beamer appeared to me to be lacking in
candor in their versions of their conversation with Palmer, and I formed
much the same impression of their accounts of their discussion with Mc-
.Kelvey. In contrast, McKelvey impressed me as an objective and credible
witness. It may be noted, in that regard, that he is no longer in the Company's
employ, having left voluntarily to resume his schooling.
McKelvey that the Company would, upon his request, have
increased his wages to $600 a month, amounted, in my
dggment, to an intimated offer of such an increase if Mc-
telvey would "change" his attitude toward union repre-
sentation or, in other words, if he would abandon support
of the Union.
I find that the Company interfered with, restrained, and
coerced employees in the exercise of rights guaranteed them
b Section 7 of the Act, and thereby violated Section 8(a)(1)
of the Act, as a result of each of the following: (1) the
inquiry of Palmer as to the reason why he and McKelvey
wished to join the Union; (2) the offer of a wage increase
to Palmer, and the promise made him that he would have
"fast advancement', and would not be required to work
during his lunch period, or before 8 a.m. or after 5 p.m.; (3)
the inquiry of McKelvey as to why he "want[ed] to go
union"; and (4) the intimation to McKelvey that he would
be given a wage increase if he withheld his support from the
Union.
C. The Discharge
The Respondent makes no claim that Palmer was dis-
charged because of any deficiency in his work-in fact, his
performance was "good ," as Seagle testified. What it con-
tends, through testimony by Seagle and Beamer, is that
Palmer was terminated because McKelvey performed his
warehouse duties "very badly" and thus, so the claim goes,
because of McKelvey 's deficiencies , and since he had been
"excellent" as a truckdriver in his prior employment with
the Company , and had seniority over Palmer, the manage-
ment decided to discharge Palmer and replace him as truck-
driver with McKelvey . The decision , according to Seagle
and Beamer , was made on April 5 before either had any
knowledge of any interest in unionization by any of the
employees , and was to become effective , together with a
"cost of living" increase of $25 in McKelvey 's monthly
salary on April 15, the end of the current semimonthly pay
period.
That the Respondent should discharge Palmer , who per-
formed his work well, because of shortcomings in Mc-
Kelvey's work is on its face something of an oddity, and the
credibility of the claim is not , in my view, enhanced byy
Seagle's generalization that McKelvey had been an "excel-
lent' driver in his prior employment , for McKelvey had
held the driver's job some 3 years earlier, and had worked
in that capacity only for about 3 or 4 months . The implausi-
bility of the explanation of Palmer's discharge becomes
even more apparent from , the terms in which Seagle de-
scribes McKelvey's alleged shortcomings . According to
Seagle , because of McKelvey , "[t]he material wasn 't gettingg
put away. The warehouse was sloppy looking, garbage aIl
around , orders were getting wrong, orders weren 't getting
put away. A lot of mistakes . ' As an example of these, Seagle
cited an instance when , according to him, McKelvey was so
remiss in his duties as to leave "a thousand dollars worth of
copper" in such a position (apparently outside the ware-
house) over a weekend that any passerby could have taken
it. One may doubt, to say the least , that the management
would retain such an employee in preference to a good one
such as Palmer admittedly was.
Moreover, the credibility of both Seagle and Beamer is
seriously impaired by their claim that the discharge decision
was made on April 5, some 10 days before Palmer was told
of his dismissal . The obvious point of that testimony, if
accepted and harnessed to the management 's disclaimer of
any knowledge of any union activity as of April 5, is that
the discharge decision could not have had an antiunion
HAPSCO, INC.
purpose . But the claim that the decision was made on April
5 is plainly at odds with the course of conduct followed by
Seagle and Beamer with Palmer on April 9, the day after
they received the Union 's claim of representation . It is evi-
dent even from Seagle 's and Beamer 's accounts of what
took place in the April 9 discussion with Palmer that the
Union's claim was at the bottom of the episode and that
their purpose was to dissuade Palmer from supporting the
Union . Seagle implied as much with testimony that upon
receipt of the Union's telegram , the management decided to
"tell the employees what we had to offer and what the
company offers them ." Obviously , there would be no point
in following such a course with Palmer if the management
had already decided to discharge him, and, plainly, that
conclusion is strongly reinforced by the credited evidence
that during the course of the April 9 discussion, Seagle and
Beamer interrogated Palmer as to his reason for desiring
union membership and offered him benefits , including a
wage increase , upon the implied condition that he abandon
support of the Union . In short , I do not believe the
Company's explanation of the discharge , nor its claim that
the discharge decision was made on April 5; and find that
it was made following the April 9 discussion , and with
knowledge by the management'that Palmer favored repre-
sentation by the Union. °
The motive for the discharge is fairly inferable from a
sequence of events which began with the effort by Mc-
Kelvey and Palmer , about the beginning of April, to secure
union representation . This led to Local 150's telegram of
April 8 , notifying the Company of its claim of representa-
tion ; and on the very next day Seagle and Beamer , having
learned from some source , or at least believing , that Mc-
Kelvey and Palmer were adherents of the Union , attempted,
through offers or promises of benefit , to turn them away
from union representation.
Against that background , and bearing in mind that Palm-
er performed his work satisfactorily , and that the
Company's explanation of his discharge lacks plausibility,
I am convinced that there was a material link between the
Company's filing, on April 14, of its petition for a Board-
conducted election and Palmer 's discharge on the next day.
The bargaining unit consisted of only three employees at the
time the petition was filed , and, obviously , the unit's reduc-
tion to two as a result of the dismissal of a known supporter
of the Union would materially reduce its prospect for a
majority , for only one vote against it in a two-man unit
would be sufficient to bring about its electoral defeat. A
conclusion that such a purpose was at the bottom of
10 The inference I draw from the April 9 discussion remains notwithstand-
ing testimony by Seagle and the Company's accountant , W. E. Hillman, that
the management informed Hillman on April 5 that McKelvey was to be given
the wage increase and be assigned to driving as of April 15. Seagle claims
that it was he who notified Hillman of the changes , but Hillman sounded a
speculative note about the matter , stating that " it would either have been Mr.
Seagle or Mr . Beamer ," and, at a later point , that he "believe [s]" that it was'
Seagle . It is also noteworthy that a penciled entry in McKelvey 's payroll
record purportedly made by Hillman under the date of "45-71" (although
he was unable to say when he made the entry) notes that McKelvey was to
receive the pay increase as of April 15, but makes no reference to his assign-
ment to truckdriving ; and that the only such reference , consisting of' the
phrase "now on tk .," appears on the line containing the payroll entries for
McKelvey for April 15. Hillman, who says he made that entry, manifested
evasiveness when queried about its date . Asked when he made it, he replied
unresponsively " I was advised on the 5th [of April]"; then when the matter
was pressed , he turned to assumption , stating that " I must have made it on
the 5th" (although the entry is on the same line as the salary entries for April
15); and , finally , he stated that he could not remember when he made it. In
sum, I do not credit the testimony that the management informed Hillman
of McKelvey 's assignment to driving on April 5.
939
Palmer 's discharge is not negated by the fact that McKel-
vey, also a known adherent of the Union , was retained, for
the spring season , during which the discharge and the filing
of the petition occurred , is not the Company 's "busiest
period, and Palmer's replacement with McKelvey , who had
had some experience as a driver , coupled with McCarty's
assignment full time to the warehouse , would be sufficient
to meet the Company's need for trucking and warehousing
personnel at least until the summer months, as was in fact
the case ,' I while, at the same time , Palmer's discharge would
materially reduce the Union 's chance of winning the elec-
tion in the remaining two-man unit.
Upon consideration of the full record , I am convinced,
and find, that such a reduction was the underlying reason
for Palmer 's dismissal . Thus I find that by discharging
Palmer , the Company discriminated against him in viola-
tion of Section 8(a)(3) of the Act, and interfered with,* re-
strained , and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act , thereby violating
Section 8 (a)(1) of the statute.
Finally, as the discharge violated the Act, I find that
Palmer was eligible to vote in the election as an employee
of the Company , and shall thus recommend below that the
Board overrule the challenge to his ballot and direct that the
ballot be counted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing the free flow of
commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding I make the following:
CONCLUSIONS OF LAW
1. The Company is, and has been at all material times,
an employer within the meaning of Section 2(2) of the Act.
2. Local 150 is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Timothy J. Palmer .as
found above , the Company has engaged in, 'and is en aging
in, unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with , restraining, and coercing employ-
ees in the exercise of rights guaranteed them by Section 7
of the Act, as found above, the Company has en gaged in
unfair labor practices with the meaning of Section $(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend below that it cease and desist from
its unfair labor practices, and take certain affirmative ac-
tions designed to effectuate the policies of the Act. In view
" Following Palmer's discharge, McKelvey and McCarty were the only
employees engaged in driving or warehouse work until the summer months
when McCarty's son was employed on a part-time basis in the warehouse,
as had been done "for years" previously, according to Seagle.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the nature and extent of the unfair labor practices com-
mitted, and in order to make effective the interdependent.
guarantees of Section 7 of the Act, I shall recommend an.
order below which will in effect require the Respondent to
refrain in the future from abridging any of the rights guar-
anteed employees by said Section 7.12
Having found that the Company discriminatorily dis-
charged Timothy J. Palmer on April 15, 1971, in violation
of Section 8(a)(1) and (3) of the Act, I shall recommend
below that the Company offer him immediate and full rein-
statement to his former job or, if such job 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 said discharge from the date of such discharge to the
date on which he is offered reinstatement, as aforesaid,
together with interest thereon as provided below; and that
the said loss of pay be computed in accordance with the
formula and method prescribed by the Board in F. W. Wool=
worth Company, 90 NLRB 289, and-include interest at the
rate of 6 percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
RECOMMENDED ORDER13
Heating-Air Conditioning Plumbing Supply Co., doing
business as Hapsco, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging. membership of its employees in Chauf-
feurs, Teamsters & Helpers Local 150, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization, by
discharging or, in any other. manner, discriminating against,
any employee with respect to, such employee's hire, tenure
of employment or any term or condition of employment.
(b) Interrogating any employee concerning his interest or
participation in any activity by, in, or with any labor organi-
zation.
(c) Offering or promising any wage increase or any other
benefit to any employee for the purpose of influencing his
attitude toward any labor organization or representation by
any such organization.
(d) In any other manner interfering with, restraining, or
coercing any employee in the exercise of rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act:
(a) Offer Timothy J. Palmer immediate and full rein-
statement to his former job or, if that no longer exists, to a
substantially equivalent one, without prejudice to his senior-
ity and other rights and privileges, and make him whole as
provided in section VI, above, entitled "The Remedy."
(b) Preserve until compliance with any order for back-pay
made by the National Labor Relations Board in this pro-
ceeding is effectuated and make available to the said Board
and its agents, for examination and copying, all payroll
records, social security records, time-cards, and any other
records relevant to a determination of the amount of back-
pay due.
(c) In the event Timothy J. Palmer is now serving in the
Armed Forces of the United States, immediately notify him
of his right to reinstatement upon application after his dis-
charge from the Armed Forces in accordance with the Se-
lective Service Act and the Universal Military Training and
Service Act.
(d) Post, in conspicuous places at the Company's place of
business in Sacramento, California, including alp places
there where. notices to employees are customarily posted,
copies of the attached notice marked "Appendix." Copies
of the said notice, to be furnished by the Regional Director
for Region 20 of the National Labor Relations Board, shall,
after being duly signed by an authorized representative of
the Company, be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in such conspicuous places. Reasonable steps
shall be taken by the said Company to insure that said
notice is not covered, altered, or defaced, by any other
material. 14
(e) Notify the said Regional Director, in writing, within
20 days from the date of receipt of a copy of this Decision,
what steps Respondent has taken to comply therewith.15
IT IS FURTHER RECOMMENDED that the Board overrule the
challenge to the ballot of Timothy J. Palmer and direct that
the ballot be counted.
12 " ... a discriminatory discharge of any employee because of his union
affiliation goes to the very heart of the Act" N.L.R.B. v. Entwistle Manufac-
turing Co., 120 F.2d 532, 536 (C.A. 4). See also May Department Stores v.
N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L.R. B.,.120 F.2d 641
(C.A.D.C.).
13 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and recommended order herein shall, as.pro-
vided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board,
become its findings , conclusions , and order , and all objections thereto shall
be deemed waived for all purposes.
14 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
15 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 20, in writing, within 20 days from the date
of this Order , what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National La-
bor Relations Board has found that we have violated the
National Labor Relations Act, and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any such activi-
ties.
WE WILL NOT discharge or otherwise discriminate
HAPSCO, INC.
against any employee because such employee exercised
any of such rights.% ,
WILL NOT interrogate any employee about his in-
terest or participation in any activity by, in or with any
union.
WE WILL NOT offer or promise any employee any wage
increase in order to inf luence his attitude toward any
union or representation by any union.
The National Labor Relations Board has found that
we discriminated against Timothy J. Palmer by dis-
charging him, and has ordered us to offer him imme-
diate reinstatement to his former job, and to reimburse
him for any loss of pay he may have suffered because
of our discrimination against him , together with inter-
est as provided in the Board's Order.
WE WILL comply with the Board's Order.
HEATING-AIR CONDITIONING
PLUMBING SUPPLY CO.,
d/b/a HAPSCO, INC.
Dated By
941
(Employer)
(Representative) (Title)
WE WILL immediate notify the said Timothy J. Palmer, if
presently serving in the Armed Forces of the United States,
of his right to reinstatement, upon application after his dis-
charge from the Armed Forces, in accordance with the Se-
lective Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 13050 Federal Building, 450 Gold-
en Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.