Haynie Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 353 (N.L.R.B. 1976)

HAYNIE ELECTRIC CO. 353
Haynie Electric Co ., Inc.; Baker Electric Company,
Inc.; Summerall Electric Company, Inc.; A. C.
Electric Company, Inc.; and its agent , James F.
Summerall and International Brotherhood of Elec-
trical Workers, Local Union No. 474 . Cases 26-
CA-5488, 26-CA-5502-1, 26-CA-5502-2, 26-
CA-5502-3, 26-CA-5502-4, 26-CA-5685, and
26-CA-5688
June 30, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On March 12, 1976, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The Charging Party filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had 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 and to
adopt his recommended Order as modified below.
Contrary to the Administrative Law Judge, we
find that Johnnie Hall was not constructively dis-
charged by the Respondent on October 1, 1974, for
union reasons, but that he voluntarily quit his job.
Because Supervisor Winter criticized him for his
handling of certain work tickets and told him it "Just
don't look like you're going to make it, does it," Hall
quit his job, fearing that he would be discriminated
against as had other union adherents. The Adminis-
trative Law Judge found that Winter harassed Hall
and precipitated the ticket incident for the purpose
of bringing about Hall's departure for union reasons,
since , except possibly for employee McClure, only
Hall was left of the employees who attended the
union meeting of September 5. But Hall admitted
that he had been questioned about inaccuracies and
omitted information on his work tickets half a dozen
times before the September union meeting. It there-
fore would be improper to find that criticism of him
on the occasion in question was motivated by differ-
ent considerations because, in the meantime, Hall
had demonstrated a prounion adherence. And, not
all of those who attended the September meeting, in-
cluding McClure, were victims of discriminatory
treatment. In the circumstances, we find that the
General Counsel has failed to establish that Respon-
dent played the sinister role in Hall's departure
found by the Administrative Law Judge.
Nor do we adopt in its entirety the remedy recom-
mended by the Administrative Law Judge. Although
Respondent's unfair labor practices were of a serious
nature, they were not so aggravated or pervasive as
to make necessary the extraordinary features of the
recommended remedy. Respondent has already of-
fered reinstatement to the discharges, which all but
Stroecker accepted in September 1975. And we be-
lieve that the order we shall issue, with its cease-and-
desist provisions, the affirmative action required to
fully remedy the discharges, and our normal posting
requirement, should adequately serve to effectuate
the policies of the Act in the circumstances of this
case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Hay-
me Electric Co., Inc.; Baker Electric Company, Inc.;
Summerall Electric Company Inc.; A. C. Electric
Company, Inc.; and its agent, James F. Summerall,
Memphis, Tennessee, and their respective officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so modi-
fied:
1. Delete the name of Johnnie Hall from para-
graph 2(a).
2. Substitute the following sentence for the first
sentence of present paragraph 2(e), retaining the
footnote 7:
"(e) Post at their offices and wherever else notices
to employees are customarily posted copies of the
attached notice marked 'Appendix."'
3. Delete paragraphs 2(c) and (d) and reletter pre-
sent paragraphs 2(e) and (f) as 2(c) and (d).
4. Substitute the attached notice for that of the
Administrative Law Judge.
i Inasmuch as we agree with the Administrative Law Judge 's determina-
tion on the merits that McDougall , Churchill, and L Hall were not supervi-
sors , we find it unnecessary to pass upon the validity of his finding that
Respondent had waived this defense because it was not asserted in a timely
fashion
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
225 NLRB No. 34
354 DECISIONS OF 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 offer the following employees rein-
statement to their former jobs or, if such jobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, and make them
whole for earnings lost since their discharges:
Billy Wayne Noe, Marion Michael Ames, Lester
Hall, Terry Kurt McDougall, Michael A.
Stroecker, Lester Churchill, and Jesse Burlison.
WE advise our employees that they have a
right to join or assist IBEW, Local Union No.
474, or any other union.
WE WILL NOT discharge, threaten to discharge,
or take any other discriminatory or harassing ac-
tion against employees for testifying in Labor
Board cases or for joining or assisting or sup-
porting IBEW, Local Union No. 474.
WE WILL NOT tell employees that we have dis-
charged other employees for union consider-
ations and that employees who join IBEW, Lo-
cal Union No. 474, cannot work for us.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed by Section 7 of
the National Labor Relations Act.
WE WILL NOT interrogate employees or ask
them to report on any other employees or spy on
them or indicate we have spied on them regard-
ing union membership or meetings or any other
union activity.
HAYNIE ELECTRIC CO., INC.; BAKER
ELECTRIC COMPANY, INC.; SUMMERALL
ELECTRIC COMPANY, INC.; A. C. ELECTRIC
COMPANY, INC.; AND ITS AGENT, JAMES F.
SUMMERALL
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Hearing in
this matter was held on various dates, beginning on June
16, 1975, and concluding on September 9, 1975, upon
charges filed by the Union, a complaint issued by the Gen-
eral Counsel on April 29, 1975 (the complaint was later
amended), and answers filed by Respondents.
Upon the entire record in the case,' including observa-
1 1 desire to acknowledge the excellent briefs filed in this case
tion of the demeanor of witnesses and consideration of
brief s,2 I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT COMPANIES
Haynie Electric Co., Inc. (Haynie), Baker Electric Com-
pany, Inc. (Baker), Summerall Electric Company, Inc.
(Summerall), and A. C. Electric Company, Inc. (A. C.),
are Tennessee corporations engaged in the business of
commercial and residential electrical contracting. The par-
ties agree, and I find, that these companies meet the
Board's jurisdictional standards and are engaged in com-
merce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union No. 474, herein called the Union , is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The named corporate Respondents are affiliated busi-
nesses with common officers, directors, and operators, and
constitute a single-integrated business enterprise and a sin-
gle employer, and this integrated enterprise had a common
labor policy affecting the employees of all companies.
James F. Summerall, president of Summerall and also a
named Respondent , owns all or a controlling interest in the
corporate Respondents; and all officers and managing
agents of these companies are "under the orders and super-
vision of, and obey the instructions of Respondent [James
F.] Summerall." Respondents maintain their offices in
Memphis, Tennessee I shall refer to the Respondents col-
lectively as the Respondent, unless separate identification
be necessary; and all dates herein are in 1974 unless stated
otherwise.
The complaint alleges that Respondent engaged in vari-
ous violations of Section 8(a)(1) of the Act and that it also
violated Section 8(a)(3) of the Act by discharging six em-
ployees 3 (two on September 9, three on September 24, and
one on December 17) and by constructively discharging a
seventh employee 4 on October 1. The complaint, as
amended, alleges that Respondent further violated Section
8(a)(3) as well as 8(a)(4) by terminating Lester Churchill a
second time on July 11, 1975, and also violated Section
8(a)(3) by releasing Jesse Burlison on that same date.
The Union Meeting of September 5, 1974
On the evening of September 5, 1974, a group of
Respondent's employees attended a meeting at the Union's
Memphis office. These employees were Barney McClure,
Lester Hall, Terry McDougall, Michael Stroecker, Michael
2 Errors in the transcript have been noted and corrected
3 Billy Wayne Noe, Manon Michael Ames, Lester Hall, Terry Kurt Mc-
Dougall, Michael A Stroecker, and Lester Churchill
4 Johnnie Hall
HAYNIE ELECTRIC CO. 355
Ames, James Smith, Jeffery Richerson, Billy Wayne Noe,
and Johnnie Hall. Each of these employees, except
Stroecker, signed a union card at the meeting. By the year's
end, none of these employees was on Respondent's payroll.
Noe and Ames were terminated on September 9; Hall, Mc-
Dougall, and Stroecker were terminated on September 24;
and Churchill was terminated on December 17. Smith and
Richerson quit in September and McClure in October; J.
Hall also quit in October under circumstances alleged by
the General Counsel as constituting a constructive dis-
charge.
A former employee, Thomas Doyle, had been rehired by
James Summerall in 1971. Doyle testified that he there-
upon became a "paid snitch" for Summerall and that Sum-
merall used him "to go around and get .. . information."
Although Summerall denied having had any union discus-
sions with Doyle, Doyle credibly testified that Summerall
called him at home in early summer of 1974 and told him
that he (Summerall) had heard that some of the employees
had been to the union hall and Summerall told Doyle "to
inquire around and get all the names and let him [Summe-
rall] know about it." Sometime in August 1974, Summerall
told Doyle to "inquire around and find out" if Churchill
had been to the union hall, explaining that he had heard
that Churchill had "something to do with the Union" and
he gave Doyle his "personal home" phone number with
instructions to make progress reports on the inquiry. Doyle
truthfully testified further that he asked J. Summerall
whether he (Doyle) should join the Union and attend its
meeting as a means of obtaining information about union
activities of other employees and that Summerall told him
to do so. Doyle thereupon arranged to appear before the
union executive board early in September but Summerall
instructed him at the last moment not to go, Summerall
explaining that he (Summerall) "would send somebody up
there [to the union hall] to get all the information he need-
ed... . 11
Also that summer, according to Doyle, Doyle called and
informed Summerall that he (Doyle) had heard that em-
ployee Billy Holley had been to the union hall. Within an
hour, Riding Superintendent Charles Ellis approached
Doyle at a worksite and said he (Ellis) had information
that Holley had joined the Union. Ellis told Doyle, accord-
ing to the latter's undenied and otherwise credible testimo-
ny, that "we can't just fire him [Holley] with no cause, so
we'll have to force him to quit" and Ellis then told Doyle
that Holley would be assigned "digging ditches with a
shovel and that'll be the only thing he can do, unless he
wants to quit." Doyle thereupon advised Holley he was to
be the "permanent ditch digger" and it was either that or
"quit." Holley quit. A month or so later, Holley sought
reemployment from Larry Murphy (general manager of
Respondent Baker), and he told Murphy at the time that
he would not engage in any further union activities. (Mur-
phy denied that the Union was mentioned in any conversa-
tion he had with Holley.) Murphy rehired Holley with the
admonition that Holley would be fired and not taken back
if Holley went "back up there [to the Union]." Murphy
also told Holley that he would "find out about it ["if you
do go back up there"] because they'll tell me about it."
Murphy did not explain who the "they" was.
Steve Zelinski was another employee whom Summerall
hired and used as an "undercover man," with instructions
to win the "employees' confidence, be their friend," and to
see if anyone was violating any company rules respecting
thievery, loafing, etc. Summerall also told Zelinski, accord-
ing to the latter's credible testimony, to report "promptly
and the faster, the better" if Zelinski heard anything about
unions. Summerall testified that he had hired Zelinski for
"intelligence work," and-at a time Summerall thought
was early in 1974-he admittedly asked Zelinski "to find
out if the employees were interested in the union." Zelinski
credibly testified that Summerall called him several times
inquiring whether he had heard any employees "talking
about unions."
Respondent also conducted employee meetings ("pep
talks from time to time," according to Summerall), at
which the Union was discussed. Doyle testified that he at-
tended one such meeting in June or July 1974, when com-
pany representatives indicated that "any man that talked
to the Union representative or had anything to do with
him, would be fired." At one meeting, J. Summerall asked
an employee-one "Mac" MacCarthy-to tell the employ-
ees of MacCarthy's financial losses resulting from a layoff
at a union shop, and Summerall testified, in explanation,
that he (Summerall) had heard that "union men" had been
talking to the employees and that he considered it "desir-
able" for MacCarthy to relate these experiences to the
other employees.
The original charge in this case was filed on February
28, 1975, and those of the foregoing items that presumably
occurred before the operative period under Section 10(b)
of the Act are not alleged as violations in this proceeding.
We now return to events after the September 5 union meet-
ing.
The day following the meeting, Superintendent Ellis
asked Terry McDougall, according to the latter's credible
testimony, whether McDougall had been to the union hall.
McDougall replied he had not, whereupon Ellis comment-
ed that "I think they got your name mixed up with some-
body else's, but I'm not sure." Ellis, while denying this
particular exchange, testified that he did ask McDougall
whether the latter "[had] been having dealings with any of
the union people." Ellis testified that McDougall replied
that a union person had spoken to him about the Union
but that he (McDougall) was not interested in it , and that
he (Ellis) said, "that's good."
On September 8, Haynie employee James Smith received
a phone call at home from Haynie Superintendent Paul
Jackson. According to Smith's credible testimony undenied
by Jackson, the ensuing conversation occurred:
. .. he [Jackson] said Jimmy do you know of anybody
going to the union hall Thursday night? And I said no,
and he said well, there were some guys from your job
that went up there and he said who are some of the
guys who have been working on your job? Well, Rich-
ard has been on my job. He said yeah, Richard Long
was one of them. And I said well, Richard Long has
been in the union for about six months. And he said
well, name the other guys who have been working on
yourjob. And I said Mike Ames, Billy Noe, Jeff Rich-
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erson, and he said yeah, they were up there. And he
said do you know why there were up there? And I said
I don't know why, I guess they were tired of the way
things were going where they were at. And he said
well, just what I said, Paul. If I got tired of something
I would leave myself. And he said well, OK, we'll talk
to you later.
Employee Barney McClure testified that, after attending
the September 5 union meeting, he told Summerall he
wanted to talk with the latter. Summerall asked McClure to
come to his office on Monday morning (September 9),
which McClure did. While mistaken or not quite certain of
some details, McClure credibly testified and Summerall in
effect denied and I find that Summerall told McClure on
this September 9 occasion that he (Summerall) had the
names of the men who were at the September 5 union
meeting, that he had already let one of the men go (Noe
and Ames were fired on September 9), and that "the union
had been fooling with him for 26 years [and] they weren't
going to get anywhere."
Noe and Ames
Ames was hired by Respondent J. Summerall in Febru-
ary 1973, on which occasion Summerall inquired whether
Ames was a union member and Ames said he was not.
Ames received his last wage increase in April or May 1974,
and his hourly rate was $4.75 in September 1974. Noe was
hired by J. Summerall in April 1970 and left Respondent's
employ in 1973; he returned in early 1974, and his hourly
rate of pay was $5 at his discharge in September 1974. It is
recalled that employee Smith had informed Superintendent
Jackson on September 8 that Ames and Noe had attended
the union meeting on September 5.
Noe and Ames were part of a five-man crew (including
Jeff Richerson, Barney McClure, and leadman James
Smith) working on a continental village job in September
1974. On September 9, Superintendent Ellis informed Noe
and Ames that they were terminated (it is not clear whether
words of layoff or discharge were used) but without stating
the reason therefor either to Noe or Ames or to the three
other employees on the job, and Smith and Richerson
thereupon quit. (Smith and Richerson'testified, in effect,
that they quit in protest because they believed Noe and
Ames were discharged for union reasons; earlier that
morning they had been discussing Superintendent
Jackson's conversation with Smith, as set forth above.) Not
until they picked up their separation notices and final
checks on September 13 were Noe and Ames advised that
the purported reason for their discharge was "loafing on
the job."
A day or so after releasing Noe and Ames, Ellis sepa-
rately told McDougall and L. Hall, according to the latter's
credible testimony, that Ellis had been instructed to fire
Ames and Noe for "messing around with the union." Ellis
also inquired of McDougall at the time whether McDou-
gall knew if Smith had been "going to the union hall."
Respondent's version of the Ames-Noe discharge is
based principally on testimony of Superintendent Ellis and
Paul Summerall (manager of Respondent Haynie and son
of Respondent J. Summerall). Respondent thus asserts that
Ellis visited the continental village project on Friday, Sep-
tember 6, about 4 p.m. or 4:15, which was before the regu-
lar quitting time of 4:45 p.m. for all except Smith and one
other employee who would have usually worked until 5:15
p.m. Ellis did not see Noe, Ames, Richerson, and Smith on
the job, and about 15 minutes later he saw them playing
pool and ping pong in the recreation room at the apart-
ment house project. Ellis then told the men to check out if
they were finished working for the day, and he uttered no
word of criticism or warning to them. On Monday, Sep-
tember 9, Ellis purportedly advised Paul Summerall of the
foregoing September 6 events and Summerall purportedly
instructed Ellis to discharge Ames and Noe, but to retain
Smith and Richerson until these latter two could be re-
placed. P. Summerall testified that he decided to retain
Smith, temporarily at least, because he was the leadman
and was necessary to continue the job, and that he also
decided to retain Richerson as Smith's helper. P. Summe-
rall denied any knowledge of Ames' or Noe's union activi-
ties and he also testified that he was not at all concerned
about employees joining the Union so long as they did
their work.
Smith, Ames, Richerson, and Noe testified, in effect,
that they had quit work early on September 6 but that they
did so in accordance with an arrangement they had with
Ellis to take off early, in the nature of compensatory leave,
in lieu of submitting a claim for 2 hours' overtime work
which they had performed but which had not been previ-
ously authorized. The record contains the details of this
arrangement with Ellis, and it is unnecessary to recite those
details here except that I am satisfied that the events oc-
curred as Smith testified, with substantial corroboration by
Noe, Ames, and Richerson. Smith was a completely trust-
worthy witness and his testimony is to be believed as
against the testimony of Summerall and Ellis.
L. Hall, McDougall, and Stroecker
The complaint alleges that Respondent unlawfully dis-
charged L. Hall, McDougall, and Stroecker on September
24, 1974. Respondent claims that it laid off these employ-
ees in a reduction in force.
Respondent's supportive testimony for its defense re-
specting these three employees is as follows: The four re-
spondent companies interchange employees, as needed and
on a billing basis, and the borrowed employee is returned
to his own "lending" company when the borrowing compa-
ny no longer needs him; "if the loaning company no longer
had an available position when the borrowed employee re-
turned to work the employee was laid off"; Respondent
Company Summerall laid off 36 employees between July 2,
1974 and September 24, 1974; the companies did not have
a seniority system "in the usual collective bargaining con-
text" and the layoffs were consequently made on consider-
ation of "ability, experience and general impressions of the
employees" in terms of available jobs, and when a reces-
sion "necessitated work force reductions, the companies
tightened up in terms of retaining the best men. The tight-
ening-up affected the cases of Stroecker, McDougall and
L. Hall "
HAYNIE ELECTRIC CO. 357
Respondent J. Summerall hired L . Hall for Respondent
Haynie 's payroll in March 1972 , and told him at the time
that Respondent was a "non -union" company. Hall pro-
gressed from an hourly rate of $2.50 to $5, and in Septem-
ber 1974 he was on loan as a leadman on a Respondent
Baker project at Tanglewood Oaks (Sycamore View).
McDougall was hired by J. Summerall in April 1973 and
assigned to Haynie , at a $5 hourly rate as a journeyman
electrician . He was earning an hourly rate of $7 in Septem-
ber 1974 , his last increase received shortly before his termi-
nation , at which time he was on loan as a leadman on
Baker's Fairfax Manor job.
Stroecker was hired for electrical work at Respondent
Summerall in 1971, and at the time of his termination in
September 1974 he was on loan as a leadman on Baker's
Tanglewood Oaks project. His starting rate of pay was
$2.50 an hour ; he was earning $4 in 1974.
Superintendent Ellis notified McDougall and Hall of
their respective layoffs on September 24. Ellis told Mc-
Dougall , according to the latter 's credible testimony, that
Paul Summerall had instructed Ellis to lay off McDougall
and that he (Ellis) did not know the reason for the termina-
tion. Ellis further told McDougall at the time that Paul
Summerall was laying off all his good men and that Ellis
did not know where he would get men to do the work. (At
the time , the Fairfax Manor project was only half complet-
ed). According to Hall , an additional 3 to 4 months' work
remained to be done at the Tanglewood Oaks project
(Stroecker's estimate was 3 to 7 months ), and Hall further
credibly testified that Ellis also told him that he (Ellis)
didn' t know the reason for Hall 's layoff and that Hall
should tell McDougall that Ellis was not responsible for
either Hall 's or McDougall's layoff and that they should let
him (Ellis) know if either needed a recommendation. Ellis
meanwhile also told Doyle , according to Doyle 's credible
testimony , that J . Summerall had instructed Ellis to fire
Hall and that Ellis couldn't understand why, because Hall
"was doing a good job ." (J. Summerall testified he did not
know who made the decision to terminate Hall, but that it
could have been he ; he also testified to a similar effect as to
the other alleged discriminatees in this case.)
Paul Summerall testified that Baker Manager Murphy
informed him on September 24 that Baker no longer need-
ed McDougall 's services because Murphy required the
work for his own (Baker) employees . Summerall further
testified that McDougall was not needed on any Haynie
projects and that, without consulting anyone, he then di-
rected McDougall 's selection for layoff because McDou-
gall was one of his "lesser" men and because of what Re-
spondent asserts to be McDougall's "bad attitude."
Summerall referred in this connection to the fact that Mc-
Dougall had "gigged me for raises" and had done "poor"
work . Respondent had in fact given McDougall a wage
increase only a month before , and Summerall later testi-
fied , inter alia, that McDougall was better than some em-
ployees whom Respondent retained . Summerall denied any
knowledge that McDougall had been to the union hall.
Ellis testified that Summerall did not tell him why Mc-
Dougall was selected for layoff and he denied having relat-
ed to Summerall his aforementioned conversation with
McDougall on September 6 concerning the Union.
Paul Summerall denied knowledge of Hall 's union activ-
ities and testified on direct examination that he selected
Hall for layoff because of a dispute Hall had with another
contractor on a job . Summerall referred to the matter as a
"personality problem" and he then testified that he did not
even speak to Hall concerning the dispute because "I was
planning on laying him off pretty soon anyway, and that
was a real fine reason."
Robert McBride is general manager of Respondent
Summerall . McBride denied having any knowledge of
Stroecker 's union activities and he testified that he selected
Stroecker for layoff because of an "accumulation of
things" including the fact that Stroecker called in late
"numerous times" in 1973 and 1974 and that he spoke to
Stroecker concerning this lateness in July or August 1974.
The credible testimony establishes that Stroecker had been
late because of a transportation problem related to a man-
tal situation , but that this lateness occurred only during a
2-month period in 1971 , and that he received no warnings
concerning such matter since then , and that he had been
given a wage increase in March 1974.
The record shows that Respondent had approximately
233 electrical employees on its payroll ending July 2, 1974,
and that this number was reduced to approximately 84 by
August 30 , 1975. Hall , McDougall , and Stroecker were se-
parated in September 1974, and the record shows, inter
alia, that Haynie and Baker nonetheless hired and rehired
employees while laying off others in September , October,
and November , 1974. When asked concerning the quali-
ties used by Respondent in designating a leadman , Gener-
al Manager Murphy enumerated "honesty, a will to work,
fair intelligence . . . competency . . . [and] the ability to
do good electrical work."
Johnnie Hall
The General Counsel alleges that Respondent harassed
and constructively discharged Hall on October 1, 1974, for
union reasons . Hall attended the union meeting on Sep-
tember 5, the only employee of Respondent A. C. Electric
to do so. Hall's employment with Respondent began in
1971; he is a brother of Lester Hall whom Respondent let
go on September 24.
Hall was required to prepare certain records or tickets in
connection with his operations , and he had turned in such
records on a South Perkins Road project sometime before
the aforementioned union meeting. Hall's supervisor, Gene
Winter (superintendent of A. C.), inquired about the tick-
ets toward the end of September 1974 and he told Hall that
Respondent did not have or could not find the records and
he instructed Hall to return to the project and prepare new
tickets. When Hall submitted new tickets, Winter com-
plained that one particular ticket did not contain the cor-
rect address of the job . Hall disputed this, and Winter
threw the paper to the floor and walked off with the com-
ment , "Just don't look like you're going to make it, does
it.
19
Hall called in sick the next day, and later that day he
quit.
Hall testified that Respondent had not previously
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"jump[ed] all over me" concerning the tickets, although he
did testify that even before the union meeting Respondent
had spoken to him about omitted information or inaccura-
cies on tickets he had submitted. Hall testified that his rea-
son for quitting was his belief in the circumstances that
Respondent would let him go at any time because of what
had happened to the other employees (Noe, Ames, L. Hall,
McDougall, Stroecker, etc.) who attended the September 5
union meeting.
Churchill
Churchill was hired as an electrician at Summerall in
1969, and was transferred to Baker some 2 years later. He
advanced from an hourly rate of $3.25 to $6 .25, his last
increase being received a month or two before his dis-
charge in December 1974. Respondent J. Summerall and
other supervisors had complimented Churchill's perfor-
mance , and Churchill had never been criticized during his
entire employment period . Churchill, as the General Coun-
sel asserts , had indeed been a "model" employee. At the
time of his discharge in 1974 , Churchill was a leadman at
Respondent's Tanglewood Oaks project.
It is recalled that , in or around August, J. Summerall had
instructed Doyle (the self-styled "paid snitch") to find out
whether Churchill had been to the union hall, and Doyle
further credibly testified that he informed Summerall a day
or two later that he (Doyle) had no information that
Churchill had visited the Union. Sometime in November,
according to Churchill's credible testimony , Baker Manag-
er Murphy asked Churchill , "what's going on" and said he
"[had] information that you've been to the union hall . .
[and] were seen there ." Churchill denied such activity to
Murphy, and Murphy then directed him to J. Summerall's
office . In an ensuing conversation , according to Churchill's
credible testimony denied by Summerall , Summerall told
Churchill that "It's possible that we were mistaken . . I
want you to swear to me that you haven't been to the union
hall." Churchill swore to such effect, and Summerall ended
the conversation with "O.k., that' s all."
The following month , on December 17, a private investi-
gator-one Graydon Tines-appeared on the jobsite while
Churchill and three other employees were taking a mid-
morning coffeebreak . Tines told the men that J . Summerall
5 Murphy testified as follows concerning this incident
Lester [Churchill] had come into the shop one morning to service his
vehicle , and I had heard some rumors that he was contemplating going
into the Union and so I just asked him Lester , can you and me talk
private? And he said we can, so we went upstairs by ourselves in the
tool room, and he went in the door and I w-nt in the door and I said
what's going on9 In general terms what's happening , and he said not
much and I said I heard you planned on going to the Union and he
said no, and I said well , I heard it rumored around and I was at the
supply house the other day and I heard several electricians talking
about it and they were talking about loud enough so I could overhear
and I suppose purposely, I don't know , but I did overhear them You've
been with me a long time and you 're a leadman, of the crew on the job,
and I would just like to know what your feelings was, you know if you
go into the union you can't work for a non-union contractor , and they'-
ve got some kind of stipulation that they use, they have a grievance
some way that you can ' t work for a non -union contractor, and that
was-he said I haven't been up there and I'm not interested and I said
OK let's go to work
had engaged him to investigate losses of equipment and
that he would be checking the job from time to time. Tines
invited Churchill aside for a private conversation and men-
tioned various job-related matters, including pilfering, and
said he would make periodic visits to the project. Accord-
ing to Churchill's credible testimony denied by Tines,
Tines also inquired whether Churchill had been to the
union hall, and Churchill said he had not, and Tines also
asked whether Churchill "discuss[ed] the Union on the
job" to which Churchill replied that "we have talked about
it, dust general conversation."
Shortly later that day, Manager Murphy told Churchill
that J. Summerall had instructed Murphy on a two-way
radio to fire the crew for "loafing," and Churchill ex-
plained to Murphy that the men were not loafing but had
been on a morning break on the occasion of Tines' visit
earlier that day. Murphy then discharged Churchill but not
the other three crewmembers. Respondent asserts that it
has a rule prohibiting sitting down during a break and that
it discharged Churchill for such reason.
(Tines testified that J. Summerall engaged him early in
November to check on losses of materials at Tanglewood
Oaks and two other jobsites, that he did not speak to any-
one at the Tanglewood project until December 17, that he
did not again visit the Tanglewood site , and that he gave
up his investigating role with J. Summerall on or about
January 1, 1975. Tines further testified that he informed J.
Summerall that he found the men on a coffeebreak on the
occasion of his December 17 visit to the project, that he did
not tell Summerall the men were loafing, and that Summer-
all did not mention that taking a coffeebreak was against
company rules or that he (Tines) should report any other
instances of finding employees on a coffeebreak. Tines fur-
ther testified that he told Churchill he (Tines) was not in-
terested in any union matters.)
Respondent variously contended and witnesses variously
testified that Respondent's work rules (1) prohibited breaks
entirely, (2) permitted only drinking a soft drink while con-
tinuing to work, and (3) permitted drinking a soft drink
while not working but only if the employee were standing
at the time. Riding Superintendent Ellis testified , in effect,
that he did not consider an employee to be loafing who sits
down while having a soft drink and that he had not been
otherwise instructed by Paul Summerall or Murphy. James
Thompson was one of the men on the break on the occa-
sion of Tines' visit to the Tanglewood Oaks job on Decem-
ber 17, and Thompson testified that J. Summerall told em-
ployees on December 18 that he did not authorize breaks.
Thompson truthfully further testified that he had never be-
fore been told that company rules prohibited any regular
breaks, that the employees on the job were on a break at
the time of Tines' visit, that employees regularly took two
short breaks each day-both before and since December
17, and that Murphy told the men that Churchill had been
fired for "laying down on the job" but without explaining
in what respects Churchill had been "laying down."
Churchill and Burlison
Baker Manager Murphy rehired Churchill on May 12,
1975, and let him go again on July 11 at which time Re-
HAYNIE ELECTRIC CO. 359
spondent also released Jesse Burlison, an experienced elec-
trician who had been working with Churchill on a Charter
Oaks job. While both Churchill and Burhson were in-
formed by Manager Murphy that they were "laid off,"
their separation notices stated they were "terminated"; and
when Churchill inquired why Respondent had not checked
the block on the notice which indicated a layoff for lack of
work, Murphy replied that the separation notice was pre-
pared thusly "on advice of counsel."
The General Counsel alleges that this second termina-
tion of Churchill also violated Section 8(a)(3) of the Act, as
well as Section 8(a)(4)-(Churchill testified in this proceed-
ing on June 17 and July 2, 1975)-and that Respondent
unlawfully terminated Burlison in order to lend substance
to Churchill's termination. The union campaign had con-
tinued meanwhile, and a representation petition was filed
on August 19, 1975, and Churchill credibly testified that,
sometime after he was recalled, Ellis asked him "something
about was we going to have a union election and I told him
I didn't know anything about it."
Respondent contends that it rehired Churchill only tem-
porarily until the Charter Oaks project would be completed
and that it accordingly terminated Churchill and also re-
leased Burlison at the completion of that job. Murphy testi-
fied that it was "on advice of counsel" that he rehired
Churchill for such limited purpose because "it would be a
good economic move." Murphy was unable to explain why
recalling Churchill was a "good business" move. Murphy
testified, in effect, that he did not then place Churchill on
available residential work because Churchill had, more re-
cently, been doing apartment work and that Churchill's
past work on apartments had been slow. Before his em-
ployment at Respondent, Churchill had done housewiring
work under the supervision of one Jimmy Herndon at an-
other establishment (Jett Electric Company) and he subse-
quently worked under Herndon at Respondent. The record
establishes that he had never been criticized by Herndon or
any other supervisors concerning his performance of
housewiring functions. Like Churchill, Burlison had also
performed housewiring under Herndon at Jett.
The record further shows that Respondent rehired other
employees shortly before and even after Churchill's and
Burlison's July 11, 1975, termination.
Concluding Findings
This record establishes a flagrant course of conduct by
Respondent James F. Summerall and his subordinate man-
agement officials and representatives in seeking to root out
and stifle the organizational efforts of Respondent's em-
ployees. Respondent has long been opposed to the union-
ization of its employees, it has a right to be, and it is also
free to communicate such views to its employees. N L.R.B.
v. Gissel Packing, Co., Inc., 395 U.S. 575, 618 (1969). But it
may not impose those views on employees and rid itself of
employees holding differing views and who otherwise en-
gage in protected activities under the Act. This record
shows among other things: Coercive interrogation concern-
ing their own and other employees' union activities-by
Respondent James F. Summerall, Superintendent (or Gen-
eral Foreman) Ellis, Superintendent Jackson, General
Manager Murphy, Agent Tines; surveillance, giving im-
pression of surveillance, or instructing employees to obtain
information concerning union activities-by James F.
Summerall, Superintendent Ellis, General Manager Mur-
phy; telling employees that Respondent discharged other
employees for union reasons-by James Summerall, Super-
intendent Ellis.
As outlined above, the facts and circumstances are such
in my opinion that it is unnecessary to restate the individu-
al cases of discrimination alleged here. Considering each
situation alone as well as in the context of the entire case,
the record overwhelmingly establishes in my opinion that
Respondent terminated Noe, Ames, L. Hall, McDougall,
and Stroecker because of their union activities. I also find
that Respondent terminated Churchill in December 1974
because of his suspected union activities. Churchill was re-
hired in May 1975, about a month before this hearing be-
gan; he testified as a witness for the General Counsel on
June 17, 1975, and was terminated a second time on July
11. Churchill's testimony is set forth above, and he was the
only employee to testify in behalf of the complaint while
on Respondent's payroll. Whatever question, if any, Re-
spondent may have had originally as to Churchill (it is
recalled that Churchill was discharged in December on
suspicion of union activities and sympathies, rather than
for actual activities or sympathies as in the case of the
other discriminatees), his testimony adverse to the Respon-
dent resolved the matter for Respondent. I conclude that
the record preponderantly establishes that Respondent dis-
charged Churchill in July 1975 for union reasons as well as
for his testimony in this proceeding, and it also establishes,
as the General Counsel alleges, that Respondent terminat-
ed Burlison at the same time in order to support
Respondent's purported reason for the second termination
of Churchill.
Finally, there is the matter of Johnnie Hall's alleged con-
structive discharge in October 1974. By that time, except
possibly for McClure who quit some time that month-the
record does not show exactly when-only Hall was left of
the employees who had attended the union meeting of Sep-
tember 5. Respondent's design for these union sympathetic
employees is abundantly clear in this record, namely, to be
rid of them and Hall was aware of it. Supervisor Winter
told Hall that Hall's days with Respondent were num-
bered, and I find that the record preponderantly estab-
lishes that Winter harassed Hall and precipitated the "tick-
et" incident for the purpose of bringing about Hall's
departure for union reasons.
Supervisory Defense-McDougall, Churchill, and L. Hall
At the start of the hearing as well as during presentation
of the General Counsel's case-in-chief, the Respondent was
asked to explicate its defenses as to each allegation of dis-
crimination, and it did so. Neither in its answer filed in this
matter nor dunng the General Counsel's case did Respon-
dent claim or even suggest that McDougall, Churchill, and
L. Hall were supervisors within Section 2(11) of the Act
and that it was therefore entitled to discharge or otherwise
discriminate against them with impunity for union reasons.
Moreover, during a colloquy early on in the hearing when
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I indicated my understanding that Respondent was not as-
serting a supervisory defense, Respondent said nothing to
the contrary.
It was not until Respondent was putting in its case and
after the General Counsel had concluded his case-in-chief,
that Respondent claimed for the first time that McDougall,
Churchill, and L. Hall (Stroecker apparently also was a
leadman) were statutory supervisors and not employees.
The General Counsel objected to the belatedness of such
defense and I originally overruled his objection. I later re-
considered the matter and advised the parties that I would
reserve ruling on the General Counsel's objection and
meanwhile receive evidence as to supervisory status and
that I would ultimately resolve the matter in my Decision
on the case.
The question of supervisory status in a discrimination
case is hardly a matter which, like the Board's statutory
jurisdiction, may be raised at any time and I now conclude
that Respondent should be held to have waived the matter
here for not having urged such defense in timely fashion.
KFXM Broadcasting Company 183 NLRB 1187, 1203
(1970). I therefore sustain the General Counsel's objection
and thus strike the supportive testimony for Respondent's
contention, the effect being that such evidence is now in
the record as an offer of proof. Nevertheless, and as
Respondent's evidence on the matter was received at the
hearing, I shall decide the issue on such evidentiary show-
ing in case the Board disagrees with my procedural ruling
in this respect.
A leadman in this case is usually a journeyman electri-
cian working at his trade with a crew of electricians and
helpers. He may be a leadman on one job today and not on
another of Respondent's jobs tomorrow; his hourly wage
rate is not any higher when he happens to perform as a
leadman. The leadman has a key to trailers on a fob where
tools and equipment are stored and he opens the storage
places in the morning and secures them at night; he pre-
pares material lists at the end of the day and notifies Re-
spondent of needed supplies and he also tells Respondent
when a particular job is completed; he lays out work for
the fellow crewmen and may tell them "to do this or to do
that," but he does so on a routine basis without exercising
any independent judgment so far as the record indicates;
he reports to a job a half hour before other crewmen and
leaves a half hour later in order to perform his extra chores
(on some jobs , if not all , other crewmen also work an extra
hour on a rotation basis); a riding superintendent regularly
visits the jobs. Leadmen have never hired or fired employ-
ees, nor, so far as the record indicates, have they ever effec-
tively recommended such action or any other individual
personnel action. While Paul Summerall testified that lead-
men are not authorized to hire, he also testified that they
are empowered to discharge employees in certain circum-
stances; however, there is no competent credible testimony
that leadmen have been informed to such latter effect and
the record, in fact, shows they have not been so advised.
In the context of this case (and recalling Manager
Murphy's description of leadman qualities), a leadman is
"merely a superior workman or lead man who exercises the
control of a skilled worker over less capable employees"
rather than "a supervisor who shares the power of manage-
ment ." N.L.R.B. v. Southern Bleachery & Print Works, 257
F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911
(1959); N.L.R.B. v. Fred Stark et al., 525 F.2d 422, 431
(C.A. 2); N.L. R. B. v. Beaver Meadow Creamery, Inc., 215
F.2d 247, 251 (C.A. 3, 1954); Poultry Enterprises, Inc. v.
N.L.R B, 216 F.2d 798, 802 (C.A. 5, 1954); N.L.R.B v.
Security Guard Service, Inc., 384 F.2d 143, 146-147 (C.A. 5,
1967); N L.R.B. v. City Yellow Cab Company, 344 F.2d 575,
581-582 (CA. 6, 1965).
I conclude that McDougall, Churchill, and L. Hall (and
Stroecker were not supervisors within Section 2(11) of the
Act, and I accordingly reject this defense as untimely made
and, in any event, as lacking in merit.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of the
Act by discharging or otherwise discriminating against Bil-
ly Wayne Noe, Marion Michael Ames, Lester Hall, Terry
Kurt McDougall, Michael A. Stroecker, Johnnie Hall, Les-
ter Churchill (in December 1974 and in July 1975), and
Jesse Burlison.
4. Respondent has also violated Section 8(a)(4) as to
Churchill in July 1975.
5. Respondent has violated Section 8(a)(1) of the Act in
the following respects: (a) coercively interrogating employ-
ees concerning their own and other employees' activities
and sympathies in behalf of the Union ; (b) engaging in
surveillance or creating the impression of surveillance of
union activities ; (c) instructing or soliciting employees to
report on other employees' union sympathies and activi-
ties; (d) harassing employees because of their union activi-
ties; and (e) telling employees it has discharged other em-
ployees for union considerations and that they could not
work for Respondent if they joined the Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1), (3), and (4) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tion including reinstating and making whole the afore-
named eight employees , in order to effectuate the policies
of the Act. All backpay computations shall be in accor-
dance with F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In Churchill's case, he shall be made whole for the
entire period beginning with his first discharge in Decem-
ber 1974. The parties stipulated at the hearing on July 2,
1975, that Johnnie Hall had been recalled and was em-
ployed on that date . If Hall has been fully reinstated as
prescribed in the Order herein , Respondent will not be re-
quired to repeat such offer of reinstatement.
The unfair labor practices in this case were flagrant and
pervasive in my opinion . Even though reinstated , it is rea-
HAYNIE ELECTRIC CO. 361
sonable to believe that the employees discriminated against
might be apprehensive of retribution from Respondent,
particularly in a situation where seniority is not practiced
and where the record shows, as Respondent asserted, a
practice of interchanging employees on a borrowing basis
between the Respondent Companies. I accordingly believe
that the discnminatees are entitled to a further measure of
security from a repetition of Respondent's conduct in re-
gard to their organizational rights. I shall therefore require
that for a period of a year from the start of compliance the
Respondent advise, in writing, the Regional Office in
Memphis and the Union of any adverse personnel actions
taken as to the returned discriminatees, such as layoffs and
discharges.
In view of the gross interference with employees' organi-
zational rights in this case, it will also be required that
Respondent mail copies of the notice in this case to all of
its employees, including those on layoff status, and that for
a period of a year it provide the Union with reasonable
access to Respondent's bulletin boards and wherever else
notices to employees are customarily posted, for the post-
ing of union notices and other organizational literature.
Heck's, Inc., 191 NLRB 886, 887-888 (1971), and cases
cited therein, enfd. sub nom. Food Store Employers Union,
Local No. 347 Amalgamated Meat Cutters, 476 F.2d 546
(C.A.D.C., 1973), reversed and remanded 417 U.S. 1, 5, In.
4 (1974).
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER6
Haynie Electric Co., Inc.; Baker Electric Company, Inc.;
Summerall Electric Company, Inc.; A. C. Electric Compa-
ny, Inc.; and its agent, James F. Summerall; and their re-
spective officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, threatening to discharge, or otherwise
discriminating against employees because of sympathies or
activities on behalf of International Brotherhood of Elec-
trical Workers, Local Union No. 474.
(b) Discharging or otherwise discriminating against em-
ployees for giving testimony in Labor Board proceedings.
(c) Harassing employees for union reasons.
(d) Coercively interrogating employees concerning their
own or other employees' union activities and sympathies.
(e) Creating the impression of, or engaging in, surveil-
lance of employees' union activities, and directing or re-
questing employees to report on such activities
(f) Telling employees they have discharged other em-
ployees for union considerations and that employees who
join I.B.E.W., Local Union No. 474, could not work for
Respondents.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer the following employees immediate reinstate-
ment to their former jobs or, if these jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges , and make
them whole as set forth in "The Remedy" section above,
for any loss of earnings suffered as a result of the discrimi-
nation against them:
Billy Wayne Noe Michael A. Stroecker
Marion Michael Ames Johnnie Hall
Lester Hall Lester Churchill
Terry Kirt McDougall Jesse Burlison
(b) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due and the right of
reinstatement under the terms of this recommended Order.
(c) Advise Region 26 of the Board and IBEW, Local
474, for a period of 1 year from date of reinstatement of
any adverse personnel action respecting any of the afore-
named employees.
(d) Grant to IBEW, Local No. 474, and its representa-
tives upon said Union's request, reasonable access for a
1-year period to their bulletin boards and all places where
notices to employees are customarily posted.
(e) Post at their offices and wherever else notices to em-
ployees are customarily posted, copies of the attached no-
tice marked "Appendix," and mail a copy thereof to each
of their employees.' Copies of said notice, on forms provid-
ed by the Regional Director for Region 26, after being duly
signed by Respondents, shall be posted by them immedi-
ately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondents to in-
sure that said notices are not altered, defaced, or covered
by any other material
(f) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
6 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, and the recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
r In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "