Hendon & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1972

197 N.L.R.B. 813 (N.L.R.B. 1972)

t I V I VV I
HENDON & COMPANY, INC. 813
Hendon & Company Inc. and Service Employees
International Union, Local 623, AFL-CIO. Case
'10-CA-9097
June 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 15, 1972, Trial Examiner Robert
Cohn issued the attached Decision in this proceed-
ing. Thereafter , Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National - Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
brief i and has decided to affirm the Trial Examiner's
rulings, findings , 2 and conclusions3 and to adopt his
recommended Order.
ORDER
before me at Birmingham, Alabama, on October 26-28,
1971,1 with all parties present and represented by counsel,
involves a complaint issued 2 pursuant to Section 10(b) of
the National Labor Relations Act, as amended (herein the
Act), alleging that Hendon & Company, Inc. (herein the
Company or Respondent), interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
under Section 7 of the Act by engaging in certain conduct
described more fully herein, including the discharge of
employees in order to discourage membership in and
activities on behalf of Service Employees International
Union, Local 623, AFL-CIO (herein the Union or
Charging Party), in violation of Section 8(a)(3) of the Act,
and refused to bargain with the Union in violation of
Section 8(a)(5) of the Act. Respondent's answer, as
amended, admitted the jurisdictional allegations of the
complaint, but denied the commission of any unfair labor
practices.
At the trial, full opportunity was afforded all parties to
introduce relevant evidence, to examine and to cross-
examine witnesses, to argue orally on the record, and to
submit briefs. Oral argument was waived. Helpful briefs
were submitted by counsel for the General Counsel and by
counsel for the Respondent, which have been duly
considered. On the pleadings, stipulations of counsel, the
evidence, including my observation of the demeanor of the
witnesses,3 and the entire record in the case, I make the
following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Hendon & Company Inc., Bir-
mingham, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i Respondent's request for oral argument is denied, as the record,
including Respondent 's exceptions and brief , adequately presents the
positions of the parties
2 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
preponderance 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
3 While Chairman Miller agrees that a bargaining order is appropriate
herein , he would, for reasons stated in his separate concurrence in United
Packing Company of Iowa, Inc, 187 NLRB No 132, predicate this remedy
solely on the extensive 8(a)(I) and (3) violations found herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This proceeding, tried
i All dates hereinafter refer to the calendar year 1971, unless otherwise
specified
2 Dated September 9, based upon a charge filed July 19 (subsequently
FINDINGS OF FACT
1. COMMERCE
Respondent, an Alabama corporation, is, and has been
at all times material herein, engaged in the operation of
parking lots and the leasing of parking facilities at
Birmingham, Alabama. The sole owners of Respondent
also own and operate Hendon's Parking and Service
Stations, which, along with Respondent's operation,
constitute a single employer for the purposes of junsdic-
tion.
Respondent and Hendon's Parking and Service Stations,
during the past calendar year, which period is representa-
tive of all times material herein, have gross revenues in
excess of $500,000. Of these gross revenues received during
the past calendar year, at least $20,000 was received from
South Central Bell Telephone Company which is a public
utility with its principal office and place of business located
in Birmingham, Alabama, where it is engaged in the sale of
telephone and other communication services. During the
past calendar year, which is representative of all times
material herein, South Central Bell Telephone Company
purchased and received products valued in excess of
$50,000 directly from points located outside the State of
Alabama.
Based on the foregoing allegations, which Respondent
amended August 25 and September 3)
3 Cf Bishop and Malco, inc, d/b/a Walker's, 159 NLRB 1159, 1161.
197 NLRB No. 111
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted at the hearing herein , I find , as Respondent
admits, that it is, and has been at all times material,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Mr. Howard Breed
Hendon and Company
209 1/2 21st North
Birmingham , Alabama
Dear Mr. Breed:
July 15, 1971
It. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Commencement of the Union Campaign
At the time of the events herein , Respondent operated
approximately 38 attended parking lots in Birmingham,
Alabama. Prior to July 1, none of the parking lot
attendants had been represented for purposes of collective
bargaining by a labor organization . On or about said date,
Michael McKeown, a business agent of the Union,
commenced an organizational campaign among Respon-
dent 's employees . On July 8, he met with several employees
at the union hall in Birmingham and gave them authoriza-
tion cards to be signed themselves and solicited among the
other employees of Respondent . On July 14, there was
another union meeting, attended by approximately 40 of
the employees , at which McKeown distributed additional
union literature and union buttons. The buttons were
about the size of a United States silver dollar,4 and
McKeown told the employees not to take a button unless
they intended to wear them . He also told employee
Clifford Sylvus on that evening to check the timecards the
following morning to ascertain how many parking lot
employees Respondent employed.
The following morning, July 15, shortly after 7 a.m.,5
Sylvus telephoned McKeown and advised that he had
counted 72 or 74 timecards At that time , according to
McKeown's testimony , he had 46 signed authorization
cards in his possession . Accordingly, at approximately 8
a.m. that day, McKeown telephoned Howard Breed,
Respondent 's city manager and advised him that he
(McKeown) represented a majority of the employees.
According to Breed's testimony, he told McKeown that he
was not interested "in his damn union " and that he could
"cram it." However , Breed refused McKeown 's request
that he put such statement in writing.
Following this telephone conversation , McKeown, ap-
parently lacking any secretarial service in Birmingham,
telephoned his secretary in Atlanta , Georgia, and directed
her to write a letter to the Company requesting recognition
as the employees ' collective-bargaining representative, and
he dictated the letter over the telephone . The letter, which
was mailed in Atlanta on July 15 by certified, special
delivery mail, stated as follows-
4 See G C Exh 2
This is to advise you that a majority of your
employees in an appropriate bargaining unit at the
Hendon and Company , Inc., Birmingham , Alabama,
have designated the Service Employees International
Union Local 623, AFL-CIO, as the exclusive represent-
ative of such employees , for the purpose of collective
bargaining in respect to rates of pay, wages , hours, and
other terms and conditions of employment , to become
effective immediately . The bargaining unit consists of
parking lot attendants in Birmingham , Alabama.
We stand ready to prove our majority status by
submitting signed authorization. cards to a mutually
selected impartial person.
The Union requests negotiation with you with
respect to rates of pay, wages , hours, and other terms
and conditions of employment.
No other person or organization now represents a
majority of such employees and you are hereby
cautioned against entering into any contract, or any
renewal of any of the provisions of any existing
contract , or any collective bargaining or negotiating
with any person or organization presuming to act as
agent for, or in behalf of, any such employees.
We would appreciate a prompt reply.
Very truly yours
Mike McKeown
President S.E.I.U.
Local 623
The aforesaid letter was delivered to Respondent's
premises on July 16 and was refused by one of Respon-
dent's agents without being opened . From that time
forward , it is undisputed that Respondent has refused to
acknowledge any obligation it may have to bargain or treat
with the Union as the collective-bargaining representative
of its parking lot employees.
B. The Discharge of Employees and the Strike on
July 15
On the morning of July 15, many employees of
Respondent wore union buttons attached to their uni-
forms. This fact was noticed by Supervisor Marvin Busby
who made his usual round of the parking lots under his
supervision shortly after 7 a.m. that day. At Car Park 31,
which was just around the corner from the Respondent's
main office , Busby inquired of Ronald Youngblood what
kind of button he was wearing . The latter replied that it
was a union button. Busby said that he had better take it
off because they were going to fire him for wearing it.
Busby then went into the office . A few minutes later,
Youngblood was advised that City Manager Breed wanted
5 The workday of Respondent 's parking lot employees commenced at 7
a m
HENDON & COMPANY, INC.
to see him, so Youngblood proceeded to the office where
Breed, Busby, and Jim Vance, a management trainee, were
present. Breed inquired of Youngblood the kind of button
he was wearing6 to which the latter responded that it was a
union button. Breed directed that he pull the button off or
"hit the clock" because he (Breed) was preparing to fire
everyone that was wearing them. Youngblood left, but did
not remove his button; he testified that he considered
himself fired because he did not want to pull off the
button.?
Following the conversation with Youngblood, and the
telephone conversation with McKeown, hereinabove re-
ferred to, Breed, Busby, and Supervisor O. D. Gaines
proceeded in Breed's car to Car Park 9 where employee
Robert Battle, assertedly wearing three union buttons, was
at work. Breed asked Battle "how he felt about those
buttons," but Battle made no reply. Breed directed him to
take the buttons off, but Battle shook his head indicating
no. Finally, Breed told him to take the buttons off or hit
the timeclock. Battle left.8
Breed then drove his car across the street to Car Park 25
where employees Gerald Austin, Raymond Harris, Frazier
Sailes, and Douglas Tarrant were standing. Austin, Harris,
and Sailes each testified that they were wearing a union
button on their uniform that morning (Tarrant did not
testify), and that Breed asked them whether they thought
they could eat those (obscenity) union badges. When the
employees made no response, Breed stated that they could
dust "hit the damn street because [he] will put parking
meters on every damn lot."9
Breed, Busby, and Gaines then returned to Car Park 9
where employee Clifford Sylvus was standing, wearing his
union button. Breed asked him to take off the button and
when he refused to do so, Breed told him to clock out, too.
Sylvus then walked across the street to a telephone booth,
called Michael McKeown, and advised him that Hendon
had fired several employees and that others were out on
the street. McKeown advised Sylvus to secure some
cardboard with which picket signs could be made and
commence picketing the Company's premises. He also
suggested that the following legend be placed upon the
homemade picket signs:
6 The legend on the button states only "I'm for SEIU," without
identifying what the letters SEIU stand for
r Credited testimony of Youngblood I have considered the testimony of
Breed and Busby (Vance did not testify) and discredit it to the extent that it
varies from that of Youngblood, even though the record reflects that
Youngblood was subsequently convicted in a state court for participating in
an incident of violence on the picket line I have considered as particularly
significant , in addition to demeanor considerations , that Breed and Busby
admittedly did, in fact, subsequently proceed to discharge several employees
because they wore union buttons , as described infra
8 The foregoing findings are based upon the testimony of Breed and
Busby, which is not in substantial variance from that of Battle except that
the latter claimed that he was only wearing one union button
9 Credited testimony of Raymond Harris, as corroborated by Austin and
Sailes Breed testified that he told Austin that the latter was fired When
Austin asked the reason , Breed replied , "stealing " Respondent maintained
the defense at the hearing , however , for reasons set forth infra, I find that
the evidence does not substantiate Respondent 's contention in this regard
Additionally, based upon the foregoing findings, I conclude and find, as the
815
UNFAIR-LABOR-PRACTICE
STRIKE
CAR-PARK
LOCAL - 623
SERVICE-EMPLOYEES-INT
UNION
AFL-CIO
Picketing continued for several days thereafter . By letter
dated July 21, McKeown made an offer of unconditional
reinstatement on behalf of all striking employees, the
circumstances of which will be considered more fully, infra.
Analysis and Concluding Findings
1. The alleged refusal to bargain
The complaint alleges and the Respondent 's answer, as
amended, admits that the following unit of employees is
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All parking lot attendants employed at the Respon-
dent's Birmingham, Alabama, parking lots, excluding
office clerical employees, guards and supervisors as
defined in the Act.
As respects the Union's majority status on July 15, the
record reflects that there were 71 employees at work at 8
a.m. that day.io
Forty-two signed authorization cards were received in
evidence in the record, which cards contained the
following language above the employee's signature:
I desire to be represented by the Service Employees
International Union which is part of the AFL-CIO and
I hereby designate the SEIU as my bargaining agent in
matters of wages, hours and other conditions of
employment.
Of these 42 cards, at least 36 (a majority of 71) were
signed prior to the telephone call of Michael McKeown to
Howard Breed shortly after 8 a.m. that day.ti Respondent
argues that McKeown made no proper request to bargain
in the telephone conversation. Although McKeown testi-
fied that he made an offer to Breed to have the card
complaint alleges , that the Respondent coercively interrogated its employ-
ees concerning their union membership and activities , in violation of
Section 8(a)(1) of the Act
io General Counsel contends that there should be only 70 employees
counted since the list (Res Exh I ) includes the name of one Bill Moor who,
General Counsel contends , is a supervisor within the meaning of the Act I
find , hereinafter, that the General Counsel did not sustain his burden on
this issue, however, this finding is essentially irrelevant on the issue of
majority status since I find that the Union represented a majority of the
employees at this point in time whether or not Moor is included or excluded
from the unit
ii This includes the cards of William Roscoe and John Tyer who signed
their cards for employee Clifford Sylvus at approximately 7 a in on that
date There are four additional cards dated July 15 which could have been
signed after the said telephone conversation However, in view of my
finding on this point, it is unnecessary to determine their legal efficacy But
see, e g, Scobell Chemical Co v N L R B, 267 F 2d 922, 925 (C.A. 2), Local
152 v N L. R B (American Compressed Steel Corporation ), 343 F.2d 307
(CADC)
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked by a third party, I deem it unnecessary to make
this particular credibility resolution since Breed made it
abundantly clear by his statement that McKeown could
"cram his damn union" that such a request would have
been a futile in any event. The tone of Breed's response
reflected that here as in Local No. 152 v. N.L.R.B., supra,
"The Company responded that it was not interested in
talking to the union, but in no manner disputed the union's
representative capacity."
That McKeown intended to request recognition in the
telephone conversation is confirmed by the special delivery,
certified letter sent to the Respondent on July 15, which
was refused by Respondent on July 16. While it is true, as
Respondent argues, that there can be no breach of the
statutory duty of the employer to bargain until the
willingness of the employees is evidenced by their request
(citing N.L.R.B. v. Columbian Enameling and Stamping
Company, 306 U.S. 299), the Respondent surely may not
escape such obligation by refusing to receive a communica-
tion from the Union in the ordinary course of business. See
M. J. Pirollt and Sons, Inc., 194 NLRB No. 37; Quick Shop
Markets, Inc., 168 NLRB 180, 188.12
Accordingly, I find that on July 15 and 16 the
Respondent refused to bargain with the Union as the
exclusive representative of its employees in an appropriate
unit, in violation of Section 8(a)(5) of the Act.
2. The alleged discriminatory discharge of
employees on July 15
The complaint alleges that on or about July 15,
Respondent discharged and thereafter failed and refused
to reinstate the following named employees: Gerald
Austin, Robert S. Battle, Raymond Harris, Frazier Sailes,
Clifford Sylvus, and Ronald Edward Youngblood. It is
further alleged that Respondent discharged the aforemen-
tioned employees because of their membership in and
activities on behalf of the Union, and because they
engaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual aid
and protection. In its answer, Respondent admits that it
discharged Battle and Sylvus "for violation of uniformly
enforced appearance codes," and discharged Austin for
theft of company funds. It is denied that Sailes, Harris, and
Youngblood were discharged on July 15.
As respects Battle and Sylvus the evidence shows that
Respondent requires its parking lot attendants to wear
khaki uniforms while at work. Respondent assertedly had
in force and effect a rule extending many years prior to the
events in question which proscribed the wearing of any
12 The Board finding of an 8(a)(5) violation in the latter case was
reversed by the Court of Appeals for the Seventh Circuit (416 F 2d 601, 606)
on the ground that "the unopened registered letter containing a demand to
bargain, which was validly refused pursuant to a company policy, was not
sufficient to convey a clear demand to bargain " Here, as in the Pirollt case,
it is undisputed that the Respondent 's agent did not refuse the union letter
pursuant to any general company policy but specifically because the
envelope enclosing this particular letter reflected that it emanated from the
Union
13 Donald G Lawson, Respondent's vice president, testified that he had
directed certain employees not to wear political buttons during the election
campaign of 1968 for the obvious reason of not wishing to show favoritism
to any political party.
14 Under these circumstances, I do not reach the issue of whether such a
ornamentation on the uniform such as buttons. Although
City Manager Breed testified that this rule was printed,
and that a copy of it would be furnished at the hearing, this
was never done. Moreover, I note that in his conversations
with the various employees on the morning of July 15,
Breed never mentioned to them that there was a company
rule against the wearing of buttons and that was the reason
he was firing them. Furthermore, although Supervisor
Busby noticed employees wearing the button on his early
morning inspection of the parking lots on July 15, he made
no mention to anyone of the asserted rule. Finally, there is
record evidence that, in the past, employees have worn
various types of buttons and other insignia on their
uniform without resulting disciplinary action on the part of
the Respondent.13
Under all circumstances, I find that the Respondent has
not sustained its burden of proving the existence of a rule
prohibiting the wearing of buttons. Moreover, even if it
could be found that such a rule did exist, the preponder-
ance of the evidence shows that it was not rigidly enforced
until the advent of the union campaign and I therefore find
that the Respondent discriminatorily enforced the rule
against the wearers of union buttons.14
Contrary to Respondent's contentions, I find, based on
the credited testimony of the employees involved, that
Ronald Youngblood, Raymond Hams, and Frazier Sailes
were unlawfully discharged by the Respondent when they
were given the alternative of removing their union buttons
or "hitting the clock (street)," and they lawfully refused to
do So. 15
As respects Gerald Austin, I find that Respondent's
contention that he was discharged for stealing company
funds is not substantiated by competent and credible
evidence. It is to be recalled that Austin was among the
group of employees on the morning of July 15 who were
given the choice by Breed of removing their union buttons
or hitting the street. It is apparent from Breed's testimony
that when he advised Austin that the latter was fired,
Austin asked why and Breed told him it was for stealing.
Thus, under this version of the event, it is conceded that
Austin did not know on the morning of July 15 that the
decision had been made by Respondent to fire him. Breed
claimed that the decision was made on July 14 based on an
audit of July 9 and July 13 where Austin had "come up
short." However, this testimony is contradicted by Supervi-
sor Marvin Busby who testified that he knew about the
decision to discharge Austin "probably a week before,"
and that the final decision was made on Monday or
Tuesday, July 12 or 13. Indeed, Busby testified that he had
rule was lawful in any event since "the right of employees to wear union
insignia at work has long been recognized as a protected activity " Republic
Aviation Corporation v N LR B, 324 U S 793. 1 would not consider that the
fact that the parking lot employees here come into contact with customers
would constitute such "special circumstances " as to deprive them of their
rights, under the Act, to wear union buttons at work Cf. Floridan Hotel of
Tampa, Inc, 137 NLRB 1484, 1486.
15 In addition to the foregoing, I note , with respect to Ronald
Youngblood, the uncontradicted and credited testimony of Clifford Sylvus
who, in August , acted as spokesman for a group of employees, including
Youngblood, who personally applied to Howard Breed for reinstatement.
When the latter saw Youngblood in the group, he stated to Youngblood that
he could not come back to work at all because he had been fired.
HENDON & COMPANY, INC.
helped Supervisor Fields hire a replacement (Tarrant) to
replace Austin. This clearly impeaches Breed's testimony
that the decision was made only the day before July 15. In
my view, it seems highly unlikely that if the real reason for
the discharge was stealing, Respondent would have
allowed Austin to remain in its employ and handle
company funds I day longer than it was necessary.16
Further evidence that the proffered reason was an
afterthought as the fact that it was not until July 27 that
Respondent finally got around to notifying Austin that the
reason for his termination, which was effective July 13,
1971, "was due to several discrepancies on station audit."
(G. C. Exh. 18). Finally, I note that the decision to
terminate Austin was made and effectuated without giving
him any opportunity to present his side of the story, which
has been held to constitute an indicia of discriminatory
intent.17
Based on all of the foregoing, I find and conclude that
the reason proffered by Respondent for the discharge of
Gerald Austin is pretextual, and that the real reason is as
alleged in the complaint herein. Accordingly, I find and
conclude that the discharge of Gerald Austin on July 15
was in violation of Section 8(a)(3) of the Act.
C. The Offers of Reinstatement
By letter dated July 21, the Union advised the Company
that it was "applying for unconditional reinstatement" of
some 43 employees on strike . By letter dated July 23, the
Company responded to the Union as follows:
Mr. Val Cox, Sr.
July 23, 1971
International Representative
Service Employees International Union
501 Pulliam Street,
S.W. Atlanta, Georgia 30312
Dear Mr. Cox-
We have received your letter of July 21, 1971.
Your labor organization is not a certified collective
bargaining agent for the Hendon employees in Bir-
mingham , accordingly we do not understand that you
are in position to apply for the unconditional reinstate-
ment of the employees listed in your letter.
As in the past, the employment status of any personnel
of our employ will he determined on an individual
basis.
Sincerely
/s/ H. D. Leake
H. D. Leake
On July 26, Respondent sent the following letter (herein
sometimes referred to as the "polygraph letter") to 36
employees on strike: 18
16 The record further reflects that in some instances shortages in
employee receipts are deducted from their pay
17 Rockingham Sleepwear, Inc, 188 NLRB No 110 See also United
States Rubber Company v N L R B, 385 F 2d 660,662-663 (C A 5), where
the court stated
Perhaps most damning is the fact that both [employees l were
Dear [employee ]
817
July 26, 1971
We have received a letter, dated July 21, 1971, from
the Service Employees International Union purporting
to apply for your unconditional reinstatement at
Hendon & Company, Inc. However, since the Service
Employees have not been certified as a collective
bargaining representative, we do not believe that they
are in an appropriate position to request your reinstate-
ment.
Indeed, some of the employees for whom they
request reinstatement have not severed their employ-
ment relationship with the Company.
If you desire to apply for unconditional reinstate-
ment, you may do so on the following basis. First, you
must telephone Mr. Howard Breed and make ' an
appointment to come to the Hendon offices at 209-1/2
North 21st Street (rear) and arrange to take a
polygraph (lie detector) examination which will cover
questions as to any shortages in receipts at your lot on
July 15, 1971, incidents relating to improper retention
of customer car keys, and any picket line misconduct in
which you may have participated If your examination
reveals that you have not participated in any improper
conduct which would subject you to possible discipli-
nary action (including discharge), we will accept your
application for unconditional reinstatement, subject to
our usual employment requirements to conduct our
business.
Very truly yours
HENDON & COMPANY,
INC.
BY
Howard D. Leake,
Executive Vice President
The record reflects that six or seven of the striking
employees agreed to take the polygraph test which was
administered by a third party security organization, based
upon questions promulgated by the Company and its
attorneys. All of the employees who took the test "passed"
and were reinstated by the Company. Thereafter, in
August, several employees orally applied for unconditional
reinstatement "for the second time," without success.ts
However, commencing on or about September 10, the
Respondent made an unconditional offer of reinstatement,
by mail, to some 28 employees without requiring that they
summarily discharged after reports of their misconduct without
being given any opportunity to explain or give their versions of the
incidents
18 The employees sent the "polygraph letter" are named in G C Exh 56
19 See e g , testimony of Clifford Sylvus and Ronald Austin
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take the polygraph test. The record reflects that approxi-
mately 18 striking employees have accepted reinstate-
ment.20
Analysis and Concluding Findings
The undisputed evidence reflects that the strike of
employees which commenced on July 15 was caused by the
unlawful discharge of some of the employees for wearing
union buttons. Therefore, I find and conclude that the
strike was at all times an unfair labor practice strike. It
follows that , upon an unconditional offer of reinstatement
by the striking employees, the Respondent had a duty to
offer them reinstatement to their same or substantially
equivalent positions without prejudice to their seniority or
other rights or privileges , even to the extent of removing
any replacement hired in the interim period.21 It is equally
well established that the employees are not required to
make their unconditional application for reinstatement on
an individual basis, but may do so through their designated
collective-bargaining representation.22 This was done in
this case by the union letter dated July 21; therefore, the
Respondent was in error when, by its letter of July 23, it
refused to recognize the Union's authority to make such
application on behalf of the employees By such conduct, it
violated Section 8(a)(1) and (3) of the Act.23
Respondent contends, however, that some of the striking
employees engaged in misconduct following the inception
of the strike, such as theft of company funds, failure to
turn in office keys or customer keys, vandalism, etc. It
contends that, as part of its investigation to determine the
identity of the personnel who may have been guilty of
engaging in such conduct, it had the right to require all
striking employees to take a polygraph e:.amination
concerning, and limited to, events occurring on July 15, as
a condition to granting reinstatement. Whatever may be
the law with respect to the use of a polygraph test as a
permissible technique for the purposes of investigating
alleged employee misconduct.24 I do not deem it necessary
to determine as applied to the facts in this case for the
reason that, as counsel for the General Counsel argues, a
careful reading of Respondent's July 26 letter, hereinabove
quoted, reveals that Respondent did not state in the letter
that reinstatement would be granted if the employee took
and "passed" the test. Rather, the letter only promised
that, assuming the employee progressed that far, the
Company would then accept his application for uncondi-
tional reinstatement, "subject to our usual employment
requirements to conduct our business." I therefore find
and conclude that the sending of the July 26 letter to
striking employees did not satisfy Respondent's obligation
to offer reinstatement to such employees who were not
shown to have committed or participated in such serious
misconduct as to warrant denial of their right to reinstate-
ment. As previously set forth, the record reveals that
subsequently, Respondent did offer many striking employ-
20 See G C Exh 57
21 However , there is no contention or evidence that any of the strikers
had been replaced
22 As the court stated in N L R B v I Posner, Inc, 304 F 2d 773 (C A
2), "Nothing in the Act precludes a minority union from acting as the
employee's agent to request reinstatement " A fortiori, a majority
ees unconditional reinstatement , and 18 employees are
listed as having accepted reinstatement.25
D. The Alleged Picket Line Incident
The complaint alleges that the Respondent, by its
supervisor and agent , Bill Moor , on or about July 26, in the
vicinity of one of the parking lots, "caused a customer of
Respondent to assault a striking employee while said
striking employee was engaged in peaceful picketing." I do
not reach the merits of this allegation since , as previously
noted , I find insufficient evidence on the record to support
a finding that Moor was a supervisor of Respondent within
the meaning of the Act or was otherwise an agent of
Respondent for whose conduct it was responsible . Thus the
evidence shows that Moor was a college student who
worked part-time for Respondent in the summer. He was
classified as a general utility employee who ran errands,
substituted for regular employees when they were off duty,
made station audits, operated parking lots, and delivered
customers ' cars from the body shop where they had been
repaired . He was apparently in charge of the parking lot
when the alleged incident occurred and was wearing a
uniform normally worn by admittedly supervisory person-
nel of Respondent . However, the evidence shows that it
was not unknown for nonsupervisory personnel to wear a
supervisor's uniform ; indeed , one of the employee witness-
es for the General Counsel concedely wore such a umform
at work , having received it while being a supervisor in the
past. Nowhere does the evidence show that Moor had the
authority to hire or fire employees , or effectively recom-
mend those things, or otherwise to utilize independent
judgment in directing employees at work . Indeed , there is
no substantial evidence that he directed other employees in
the course of their employment ; the most the evidence
showed is that he performed station audits which could
affect their pay.
Under all circumstances, I find that the General Counsel
did not sustain his burden of proving that Moor was a
supervisor within the meaning of the Act , and will
therefore recommend that this allegation of the complaint
be dismissed.
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 Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It having been found that Respondent committed certain
represen tative could so act
23 NLRB v I Posner, Inc, supra
24 Cf American Oil Company, 189 NLRB No 20, Souihwire Company,
159 NLRB 394, Glazer 's Wholesale Drug Company, Inc, 152 NLRB 467,
and Falstaff Beer Distribu tors of Greater Miami, Inc, 152 NLRB 1570
25 See G C Exh 57
HENDON & COMPANY, INC. 819
unfair labor practices, it must be ordered to cease and
desist from further engaging in such conduct and to take
remedial action designed to effectuate the policies of the
Act. The Respondent unlawfully refused to bargain with
the Union on demand; accordingly, it must be ordered to
bargain with that Union, in the unit found appropriate,
upon demand, and in the event an agreement is reached to
embody such understanding in a signed agreement.26
It having been found that Respondent unlawfully
discriminated against its employees by discharging and/or
refusing to reinstate them, it must be ordered to reinstate
them (to the extent it has not already done so), and make
them whole for any loss of earnings they may have suffered
as a consequence of the unlawful discrimination in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.27
As respects reinstatement of striking employees, the
record reflects, as heretofore noted, Respondent's conten-
tion that many striking employees engaged in misconduct
on and off the picket line, sufficient to warrant refusal of
reinstatement. However, evidence of specific misconduct
attributable to any particular striking employee is decided-
ly lacking in the instant record. The most that the record
reflects is that three employees (Ronald Youngblood,
Lorenzo Allen, and Charles Allen) were charged and
convicted in a state court for assault and battery upon one
Carter, presumably a nonstriking employee. However, the
details of this one incident were not litigated in this record,
nor were the circumstances of conviction shown. Under all
circumstances, I am of the view that Respondent has not
sustained its burden of proving that these three, or any
other striking employees, should be deprived of their rights,
under Section 7 of the Act, to reinstatement. 28
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act.
Accordingly, a broad cease-and-desist order is necessary
and appropriate to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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. All parking lot attendants employed by Respondent
at its Birmingham, Alabama, parking lots excluding office
clerical employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
26 The Respondent's flagrant unfair labor practices, as disclosed by the
record, which included threats of discharge and actual discharge of
employees for evidencing in a lawful manner their support of the Union,
and its subsequent failure and refusal to reinstate them following a strike in
protest against such unfair labor practices, clearly had the "tendency to
undermine majority strength and impede the election processes" (N L R B
v Gissel Packing Company, 395 U S 575) and warrants the imposition of a
bargaining order whether premised upon an 8(a)(5) or 8(a)(1) violation See
United Packing Company of Iowa, inc, 187 NLRB No 132, see also K Wm
Beach Mfg Co. Inc, 192 NLRB No 47 at In 2
4. The Union was, on July 15, and at all times
thereafter has been, the exclusive collective-bargaining
representative of the Respondent's employees in the
aforesaid appropriate unit.
5. By refusing, on July 15 and July 16, to bargain with
the Union as a collective-bargaining representative of its
employees in an appropriate unit, the Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. By discriminating against Gerald Austin, Robert S.
Battle, Raymond Harris, Frazier Sailes, Clifford Sylvus,
and Ronald Edward Youngblood, the Respondent has
engaged in conduct to discourage membership in the
Union in violation of Section 8(a)(3) and (1) of the Act.
7. By refusing to reinstate, on July 23, the following
named striking employees upon their unconditional appli-
cation for reinstatement , the Respondent further engaged
in conduct to discourage membership in the Union, in
violation of ,Section 8(a)(3) and (1) of the Act.
Lorenzo Allen Andre Moore
Ronnie Austin Gene Morris
Joel Austin Mike Nolen
James Boskin Val Paige
Westley Branton Leonard Pass
George Brown Jimmy Peterson
Joe Nathan Bryant, Jr. Jonathan Rutlidge
Dennis L. Choles Carl Smith
John B. Coats, Jr. Walter Still
Theodore R. DisMuke Lee Andrew Stokes
W. G. Fortune, Jr. Douglas Wayne Tarrant
Willie Griswold Marvin Thomas
Fennie C. Hood John Daniel Tyrus
Daryl Hunter Cornelius Washington
William J. Irwin Menthorn Williams
John Kenniebrew Martin L. Wilson
Donald Lee William Wyne
Jerry Lett Larry Youngblood
George Lyons, Jr. Will McCoy
8. By the foregoing conduct, and by threatening
reprisals against employees for wearing umon buttons
while at work, and by coercively interrogating employees
concerning their union membership and activities, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of their rights guaranteed in Section 7 of the
Act, and therefore has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
27 Backpay would commence to run for the employees found to have
been unlawfully discharged from July 15, for employees unlawfully refused
reinstatement , backpay would commence to run from July 23 until an
unconditional offer of reinstatement was made
28 Although not condoning acts of violence on the picket line or
elsewhere in the course of a strike , the Board has, in the past , found similar
if not more reprehensible conduct not to be of such a character as to render
employees unsuitable for reemployment See Kansas Milling Company, 86
NLRB 925, 927-928, enfd on this point, 185 F 2d 413, 420 (CA 10)
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended; 29
ORDER
Hendon & Company , Inc., its officers , agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Service Employees International Union , Local 623,
AFL-CIO, as the exclusive representative of its employees
in the aforesaid appropriate unit.
(b) Discharging or otherwise discriminating against its
employees to discourage union membership and activities.
(c) Threatening reprisals against employees for wearing
union buttons while at work , or otherwise engaging in
union activities , or coercively interrogating them concern-
ing such activities, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization , to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with the Union as
the exclusive representative of all employees in the
aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment , and other terms and
conditions of employment , and if an agreement is reached
embody such understanding in a signed agreement.
(b) Offer immediate , full, and unconditional reinstate-
ment (to the extent it has not already done so) to the
employees named below to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges , and make them whole for any
loss of pay which they may have suffered as a result of the
discrimination against them in the manner set forth in that
portion of this Decision entitled "The Remedy."
Gerald Austin Frazier Sailes
Robert S . Battle Clifford Sylvus
Raymond Harris Ronald Edward
Youngblood
Lorenzo Allen Andre Moore
Ronnie Austin Gene Morris
Joel Austin Mike Nolen
James Boskin Val Paige
Westley Branton Leonard Pass
George Brown Jimmy Peterson
Joe Nathan Bryant , Jr. Jonathan Rutledge
Dennis L. Choles Carl Smith
John B . Coates, Jr. Walter Still
Theodore R. DisMuke Lee 'Andrew Stokes
W. G. Fortune , Jr. Douglas Wayne Tarrant
Willie Griswold Marvin Thomas
Fennee C . Hood John Daniel Tyrus
Daryl Hunter Cornelius Washington
William J . Irwin Menthorn Williams
John Kenniebrew Martin L . Wilson
Donald Lee William Wyne
Jerry Lett ' Larry Youngblood
George Lyons , Jr. Will McCoy
(c) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement (to the extent that Respondent
has not already done so), upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(d) 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
relevant and necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its premises in Birmingham, Alabama, copies
of the attached notice marked "Appendix."30 Copies of
said notice, on forms provided by the Regional Director
for Region 10, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.31
It is further recommended that the allegations of the
complaint be dismissed in all respects other than those
found to have been sustained in the above findings and
conclusions.
29 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 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
30 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."
sl 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 10, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
HENDON & COMPANY, INC. 821
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL offer to the employees named below
immediate and full reinstatement (to the extent that we
have not already done so) to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for all losses they may have suffered by reason of
our discrimination_ ag_ainst them.
Gerald Austin Frazier Sailes
Robert S. Battle
Raymond Harris
Lorenzo Allen
Ronnie Austin
Joel Austin
James Boskin
Westley Branton
George Brown
Joe Nathan Bryant, Jr.
Dennis L. Choles
John B. Coats, Jr.
Theodore R. Dismuke
W. G. Fortune, Jr.
Willie Griswold
Fennie C. Hood
Daryl Hunter
William J. Irwin
John Kenniebrew
Donald Lee
Jerry Lett
George Lyons, Jr.
Clifford Sylvus
Ronald Edward
Youngblood
Andre Moore
Gene Morris
Mike Nolen
Val Paige
Leonard Pass
Jimmy Peterson
Jonathan Rutlidge
Carl Smith
Walter Still
Lee Andrew Stokes
Douglas Wayne Tarrant
Marvin Thomas
John Daniel Tyrus
Cornelius Washington
Menthorn Williams
Martin L. Wilson
William Wyne
Larry Youngblood
Will McCoy
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to these
rights. We will not interfere with our employees'
protected activities by threatening them with discharge
if they wear union buttons , or coercively interrogate
them concerning union activities.
WE WILL NOT discharge or otherwise discriminate
against our employees for wearing union buttons for
the Service Employees International Union , Local 623,
AFL-CIO, or any other labor organization.
Dated By
HENDON & COMPANY, INC.
(Employer)
(Representative) (Title)
We will notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement (to the extent that we have not
already done so), upon application after discharge from the
Armed Forces, in accordance with the Selective 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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Peachtree Building, Room
701, 730 Peachtree Street N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.