Herb Kohn Electric Co

National Labor Relations Board - Board Decisions

Oct 15, 1984

272 N.L.R.B. 815 (N.L.R.B. 1984)

HERB KOHN ELECTRIC CO 815
Herb Kohn Electric Co and International Brother
hood of Electrical Workers, Local No 292,
AFL-CIO Case 18-CA-7054
15 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 September 1982 Administrative Law
Judge Mary Ellen R Benard issued the attached
decision The Respondent filed exceptions and a
supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings, 1 and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified
Contrary to the judge we do not find that Super
visor LeRoy Bosak's alleged interrogation of em
ployee John Deg about a union meeting constituted
a violation of Section 8(a)(1) of the Act On 13
January 1981 Deg contacted some of the Respond
ent s employees to see if they were interested in at
tending a union meeting the evening of the next
day Deg called Bosak and asked him if he wanted
to go to the meeting Bosak told Deg that he could
not attend but wanted to know what happened At
work on 14 January Bosak asked Deg why the
men wanted a union shop Deg replied that no
commitments were being made and that they
simply wanted information When Deg told Bosak
the union wage scale Bosak replied that the Union
would not do him much good because he would
have to take a cut in pay
The next day Bosak asked Deg what happened
at the meeting Deg told him but did not specify
who attended He also told Bosak that he felt good
about the Union and that it would be good for the
apprentices to have a union apprenticeship pro
gram Bosak said that it would not do him much
good and that the Union had never helped him
We note that the judge s decision was rendered
prior to Tour decision in Rossmore House, 269
NLRB 1176 (1984), where we held that similar
questioning by an employer, in the absence of
threats or promises, does not necessarily interfere
with, restrain, or coerce employees in violation of
Section 8(a)(1) Here Deg initiated the discussion
concerning the meeting by asking Bosak—whom
the employees apparently did not view as a super
visor—to attend Bosak made a couple of bland
comments 2 concerning the interest in the Union
among the Respondent's employees The following
day Bosak asked Deg what happened at the union
meeting We find that these inquiries were isolated,
spontaneous, and devoid of coercive intent and no
violation of Section 8(a)(1) 3 Accordingly, we dis
miss that portion of the complaint which alleges
such a violation 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Herb Kohn Electric Co St Louis Park,
Minnesota, its officers, agents, successors, and as
signs shall take the action set forth in the Order as
modified
Substitute the following for paragraph 1(a)
(a) Interrogating employees about what they
think of the Union
2 Although the judge found that the incidents occurred on two consec
unve days and could not be considered Isolated she did note that the
questions may appear relatively innocuous
3 For the reason set forth by the judge Member Zimmerman would
find that Bosak s questions to Deg about why the employees were inter
ested in a union and about what occurred at the union meeting were co
ercive and therefore violated Sec 8(a)(1) of the Act
4 Chairman Dotson would also dismiss the portion of the complaint on
the grounds that the judge Improperly permitted the General Counsel to
amend the complaint at the hearing to include this allegation The Re
spondent was not apprised of the fact that the issue of a coercive interro
gallon would have to be litigated When the judge granted the General
Counsel s motion to amend the complaint she asked counsel for the Re
spondent how much time he would require to prepare a defense After
consultation with Bosak and Kohn during the lunchbreak counsel deter
mined that it would be impossible to prepare a defense to a complaint
containing entirely new allegations which had been amended near the
conclusion of the heanng Although granting the amendment under these
circumstances did not deny the Respondent the barest minimum of due
process it did not treat the Respondent in a just manner as our regula
tions require Requiring the Respondent to defend against a new allega
fion near the close of its case may have deprived the Respondent of the
protection afforded by the Board s sequestration rule In addition permit
ting the General Counsel to introduce a new allegation after the close of
his case near the end of the hearing does not serve the interests of Judi
cial economy or orderly adjudication See Seaward International 270
NLRB 1034 (1984)
DECISION
STATEMENT OF THE CASE
' The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cu- 1951)
We have carefully examined the record and find no basis for reversing
the findings
MARY ELLEN R BENARD Administrative Law Judge
The original charge in this case was filed on January 27
1981 1 as amended on January 30 by International
'All dates herein are 1981 unless otherwise indicated
272 NLRB No 122
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers Local No 292
AFL-CIO (the Union) against Herb Kohn Electric Co
(Respondent) On March 25 the complaint issued alleg
ing in substance that Respondent committed various
acts which interfered with restrained or coerced em
ployees in the exercise of rights guaranteed in Section 7
of the National Labor Relations Act thereby violating
Section 8(a)(1) of the Act 2 and that Respondent dis
charged employees John Deg and Eugene Harp because
of their union and/or other protected concerted activi
ties thereby violating Section 8(a)(3) and (1) of the Act
Respondent filed an answer in which it denied the com
mission of any unfair labor practices
A hearing was held before me in Minneapolis Minne
sota on November 30 and December 1 Thereafter the
General Counsel and Respondent filed briefs which
have been considered
On the entire record in this case and from my observa
tion of the witnesses and their demeanor I make the fol
lowing
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondent is a Minnesota corporation with an office
and place of business in St Louis Park Minnesota
where it is engaged in electrical maintenance work in
eluding the repair and maintenance of electrical signs
and lighting for commercial businesses During the calen
dar year ending December 31 1980 Respondent in the
course and conduct of its business operations purchased
and received at its St Louis Park facility products
goods and mateials valued in excess of $50 000 either di
rectly from points outside the State of Minnesota or from
other enterprises located within the State of Minnesota
each of which other enterprises had received said prod
ucts goods and materials directly from points outside
the State of Minnesota The answer admits and I find
that Respondent is an employer engaged in commerce
within the meaning of the Act and I find that it will ef
fectuate the policies of the Act to assert jurisdiction
herein
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Union Organizing Campaign
Respondent a corporation owned by its president
Herbert A Kohn and his wife is in the business of sign
and lighting maintenance and electrical repairs and main
tenance About 80 to 90 percent of Respondent s business
is repairs and maintenance of lighting and signs and the
remaining 10 to 20 percent is electrical work such as
wiring and the installation of electrical outlets for both
residential and commercial buildings As of early January
Respondent employed two licensed electricians John
'As discussed below the complaint was amended at the hearing to
allege additional violations of Sec 8(a)(1)
Deg and Gregory McKeever a licensed maintenance
electrician LeRoy Bosak who the General Counsel al
leges is a supervisor and approximately seven mainte
nance employees
Employee John Deg one of the two electricians cre
dibly testified that he telephoned the Union s office on
January 6 and spoke to Representative John Williams
about organizing Respondent s employees Deg and Wil
hams arranged to have a meeting for the employees with
union representatives on January 14 and Deg contacted
some of Respondent s employees told them about the
meeting and asked them if they would be interested in
the Union Among those contacted by Deg was Bosak
whom Deg called on January 13 and asked if he wanted
to go to the meeting Bosak replied that he could not
attend but according to Deg further said he wanted to
know what happened
According to Deg s credible and uncontradicted testi
mony the next morning while he was in Kohn s office
with Bosak and Kohn s father in law Bosak asked him
why the men wanted a union shop Deg ^ephed that they
simply wanted information and that no commitments
were being made and he also told Bosak the union wage
scale Bosak responded that the Union would not do him
much good because under that scale he would have to
take a cut in wages
Deg McKeever and maintenance employees Sidney
Simonson and Henry Shaffer attended the union meeting
that evening Toward the end of the meeting the union
representatives passed out authorization cards and all
four employees signed them Deg also took additional
cards which he later gave to other employees to sign
During the morning of January 15 Bosak asked Deg
what had happened at the meeting and Deg told him but
did not specify who had been present Deg told Bosak
that he felt good about the Union and that it would be
good for the apprentices to have a union apprenticeship
program Bosak said that it would not do him much
good and that the Union had never helped him 3
On January 27 the Union filed a petition in Case 18-
RC-12894 and a hearing on that petition was conducted
on February 9 Pursuant to a Decision and Direction of
Election issued by the Regional Director for Region 18
of the National Labor Relations Board an election was
conducted on March 18 The election did not result in a
certification of the Union and the parties stipulated that
as of the time of the hearing in the instant case there
were no further proceedings in the representation case
3 My findings as to Deg s conversations with Bosak on January 13 14
and 15 are based on the credible testimony of Deg who impressed me as
a candid witness who testified forthnghtly and exhibited good recollec
ton Bosak substantially corroborated Deg s testimony that on January
13 Deg invited him to the union meeting and that he said he would be
unable to go However Bosak did not testify about the January 14 con
versation and Kohn s father in law was not called as a witness With re
spect to the discussion on January 15 Bosak testified that Deg told him
about the meeting and said that there was a lot of things the union
could do for us and that he replied that he did not think the union
could do anything for us Thus Bosak s version of the January 15 con
versation is not substantially inconsistent with Deg s testimony
HERB KOHN ELECTRIC CO 817
B The Alleged Violations of Section 8(a)(1) of the Act
1 Supervisory status of Bosak
In his Decision and Direction of Election in Case 18-
RC-12894 the Regional Director found that Bosak was
not a supervisor within the meaning of the Act At the
hearing in that proceeding Kohn testified that Bosak did
not have the authority to hire fire transfer suspend lay
off recall or promote any other employees and that
Kohn would not follow without further investigation a
recommendation made by Bosak that an employee be
hired or fired Kohn further testified that Bosak did not
supervise the job performance of other employees but
worked along with them that Bosak did not interview
job applicants give any recommendations or make eval
uations of other employees performance make decisions
to transfer employees from one job to another without
Kohn s knowledge or consulting with him and that he
had no authority greater than that of other employees or
any privileges or preference in terms of his employment
conditions that were not enjoyed by other employees
Kohn also testified that sometimes Bosak was in charge
of a job on which two or three other men were working
but that he had also put other employees in charge of
some jobs that he and Bosak went over the jobs each
morning and made the assignments together although
Bosak might hand them out to the men that Bosak was
not generally authorized to change work assignments on
his own (although there had been exceptions when Kohn
was unavailable) and that there were times when em
ployees might finish a job early and would take it on
themselves to return to the shop Bosak did not testify in
that proceeding
At the hearing in the instant case in contrast Kohn
testified that Bosak may authorize employees to work
overtime and grant time off other than for vacations that
Bosak assigns work although Bosak consults Kohn a
couple of times per week about the assignments that
Bosak warns employees if they are not performing their
job adequately and he does not have to consult Kohn
before such warnings although he generally does and
that Bosak trains new employees on his own and has on
occasion suggested a bonus or a wage increase In an ap
parent attempt to explain the inconsistency between his
testimony in the representation hearing that Bosak does
not give evaluations of other employees performance
and his testimony at the instant hearing that Bosak had
the power to warn employees that they were not per
forming adequately Kohn testified that Respondent has
no written warning system and that when there are prob
lems with a job Kohn relies on Bosak to ascertain if
there was something that an employee did not do or did
wrong Kohn further conceded that his statement in the
representation hearing that Bosak had no more powers
than other employees may be inconsistent with his testi
mony that Bosak schedules the work and attempted to
explain his inconsistent testimony with regard to Bosak s
authority to make work assignments by saying that
Bosak makes assignments of service calls for sign and
lighting maintenance and small electrical repairs while
Kohn assigns the electrical work However Kohn con
ceded that he did not make that distinction in his earlier
testimony I find Kohn s attempts to explain the incon
sistencies between his testimony in the representation
proceeding and his testimony in the instant case uncon
vincing and further find that the discrepancies between
his testimony at the two hearings are indicative of his
overall lack of candor as a witness
Bosak testified in the instant hearing that he has the
authority to warn employees that their job performance
is inadequate that he has given such warnings and that
he can recommend that employees receive a raise in
salary Bosak further testified that although he cannot
grant vacation time and has not hired employees he as
signs work4 and grants time off trains new employees
by working with them and showing them the work and
that he authorizes overtime without checking with Kohn
beforehand \ Bosak also testified that he has recommend
ed that certain employees be discharged including as
discussed below Eugene Harp although it is not clear
how much weight was given to these recommendations
Bosak further testified that as of January he could warn
employees about problems with their work on his own
but that as of the time of the hearing he had to talk to
Kohn before giving such warnings
At the heanng the General Counsel moved to amend
the complaint to allege that Bosak is a supervisor within
the meaning of the Act and that he had committed cer
tam violations of Section 8(a)(1) of the Act Respondent
objected to the proposed amendment on grounds that the
Board had previously determined that Bosak was not a
supervisor and that Respondent had no advance notice
that Bosak s status would become an issue in the case I
granted the motion to amend the complaint 5 but offered
Respondent an opportunity to prepare a defense to the
new allegations
In light of Bosak s testimony which I credit that he
has authority to warn employees about poor perform
ance grants time off and assigns work for the mamte
nance employees I conclude that he is a supervisor
within the meaning of Section 2(11) of the Act
2 The alleged interrogations by Bosak
As described above Deg invited Bosak to the January
14 meeting and Bosak said that he was unable to attend
The amendments to the complaint allege that Bosak s
4 It appears clear from the record that Bosak assigns work only to the
maintenance employees not to the electricians
5 It is well established that even where an individual has been found in
a representation proceeding to be an employee the question of his or her
status may be litigated in a subsequent unfair labor practice proceeding
particularly where as here there is a specific allegation that the individ
ual is a supervisor and the individual is alleged to have committed unfair
labor practices Hechson Mfg Co 249 NLRB 791 (1980) I recognize
that in Herkson the complaint specifically alleged that an individual pre
viously found to be an employee was a supervisor while in the instant
case this allegation was not made until the General Counsel moved to
amend the complaint However the General Counsel s motion to amend
the complaint was based on Bosak s testimony and on Kohn s testimony
regarding Bosak s duties which as noted above was somewhat at vani
ance from Kohn s testimony in the prior representation proceeding I
thus find no merit to Respondent s contention that the amendment should
not have been allowed because Respondent had not previously been put
on notice that Bosak s status would become an Issue where a new corn
plaint allegation is prompted by changed testimony of Respondent s agent
and witness Respondent should not be permitted to claim surprise
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions of Deg on January 14 as to why the men
wanted to have a union shop and on January 15 as to
what happened at the meeting the previous evening vio
lated Section 8(a)(1) of the Act 6
Respondent contends that Bosak s comments were
casual questions which do not rise to the level of coer
cive interrogation The Board has held that where inter
rogation is isolated and the atmosphere is free of coer
cive conduct such questions as those posed by Bosak to
Deg are not per se unlawful 7 I also note that the initial
conversation between Deg and Bosak relating to the
Union was prompted by Deg s inquiry of Bosak on Janu
ary 13 as to whether the latter would like to attend the
union meeting scheduled for the next day Nonetheless I
conclude that Bosak s questions of Deg on January 14
and 15 violated the Act Bosak did not articulate any le
gitimate reasons for his questions nor did he provide any
assurances that Deg or other employees would suffer no
reprisals for their union activity In addition although
the questions may appear relatively innocuous it is note
worthy that the incidents occurred on 2 consecutive
days and thus cannot be considered isolated Further
Deg did not initiate the conversation on January 14 and
15 and in any event the Board has held that the facts
that a conversation is initiated by an employee and
occurs in a casual and relaxed atmosphere provide no
legal basis for a finding that the conversation is not coer
cive 8 In these circumstances I conclude that Bosak s
questions to Deg about why the employees were inter
ested in a union and about what occurred at the union
meeting were coercive and therefore violated Section
8(a)(1) of the Act 9
3 Alleged unlawful statements and questions by
Kohn
Employee Gregory McKeever credibly testified that
on January 27 he was working on a job at a firm called
Vic Manufacturing when Kohn took him into the lunch
room and asked him how the job was going and what he
thought of the Union According to McKeever Kohn
said that he did not think he couldilive under union rules
and mentioned that there would be one or two layoffs
but that McKeeve'r s job was not in jeopardy Kohn did
not deny the comments and questions attributed to him
by McKeever but testified that the conversation oc
curred on January 28 rather than on January 27 " How
6 On cross examination Bosak was asked whether in the January 15
discussion he had asked Deg who attended the meeting and he said that
he may have Bosak also conceded that he might have told Deg that
he felt the employees had gone behind his back by contacting the Union
and may have expressed his opposition to the Union However Bosak
did not expressly state that he had made these comments and Deg in his
recitation of this conversation did not testify that Bosak had made any
such statements I therefore find that although the record establishes that
Bosak asked Deg what happened at the meeting and that he said that the
Union could not do much for the employees it is not established that he
asked who was at the meeting or indicated that he felt the men had gone
behind his back In any event the General Counsel has not alleged any
unfair labor practices based on Bosak s testimony in this regard
7 Mark I Tune up Centers 256 NLRB 898 905 (1981)
6 Hanes Hosiery Inc 219 NLRB 338 (1975)
9 Midwest Electric Mfg Corp 260 NLRB 174 (1982)
is As discussed below the date of this conversation is of significance
with respect to the discharges of Deg and Harp because Kohn contends
ever McKeever testified that he was sure the conversa
lion occurred on January 27 because on the previous
evening another employee had telephoned him and told
him that Deg had been laid off that day it is undisputed
that Deg was discharged on January 26 I credit McKe
ever who was a candid and forthright witness and ex
hibited good recall of events and therefore find that the
conversation occurred as he testified and that it occurred
on January 27 I further find that Kohn s comment that
he did not think he could live under union rules and that
there would be one or two men laid off was a threat of
reprisal for employees union activity and that his ques
tion of McKeever as to what the latter thought of the
Union was in this context coercive I therefore find that
Kohn coercively interrogated an employee about his
union sympathies and threatened employees with adverse
consequences of unionization and that this conduct vio
lated Section 8(a)(1) of the Act
Employee Henry Shaffer an apprentice electrician
testified that on January 27 at the Vic Manufacturing
plant Kohn said that he had heard that a few of the em
ployees had been to a union meeting and that if Shaffer
was interested in joining the Union it would be in his in
terest to try to join a union shop because Kohn would
not work the shop under union conditions Kohn did not
deny that this conversation occurred but testified that
the date was January 28 rather than January 27 I credit
Shaffer who like McKeever and Deg appeared to be a
truthful witness and I find that Kohn made the state
ments Shaffer attributed to him and that the conversation
occurred on January 27 I further find that Kohn s state
ments that if Shaffer wanted to join the Union he should
find a union shop and that Kohn would not work his
shop under union rules were in effect a threat of reprisal
against employees for engaging in union activity and
therefore violated Section 8(a)(1) of the Act 11
McKeever testified that 2 or 3 weeks after the January
27 conversation with Kohn he was again working at the
Vic Manufacturing plant when he and Kohn had a
second conversation about the Union On that occasion
according to McKeever Kohn asked him what he
thought of the Union and McKeever replied that he
thought the benefits were good especially the pension
plan Kohn stated that he did not think the Union would
be that good for the men because under the Union s
wage structure some of the maintenance men would
have to be classified at the top rate of pay and he did not
think there was any sense in paying top wages to a man
who was not licensed so he might as well let those em
ployees go Kohn did not testify about this incident and
thus did not deny the statements attributed to him I
credit McKeever and conclude that in this conversation
Kohn threatened that if the Union represented the em
ployees some of the maintenance men would be terminat
that at the time they were discharged on January 26 and 27 respective
ly he had no knowledge of any union activity by his employees
" The complaint does not allege and the General Counsel does not
contend that Kohn s comment that he had heard that some employees
had been to a union meeting gave an impression of surveillance of em
ployees union activity or was otherwise coercive and I therefore make
no finding as to whether this statement violated Sec 8(a)(1) of the Act
HERB KOHN ELECTRIC CO 819
ed and that in the context of this statement his question
to McKeever about what the latter thought about the
Union was also coercive I therefore find that both the
threat and the question violated Section 8(a)(1) of the
Act 12
C The Alleged Violations of Section 8(a)(3) and (1) of
the Act
1 The discharge of John Deg
Deg began working for Respondent in April 1980 as a
licensed electncian As descnbed above Deg initiated
the organizing campaign by contacting the Union ar
ranged the January 14 union meeting and talked to other
employees about the Union and asked them to sign au
thonzation cards
On Monday January 26 Deg worked with Shaffer at
the Vic Manufacturing job installing light fixtures Ac
cording to the credible testimony of Deg and McKeever
the work basically consisted of taking down the cover
on the old fixtures and putting in new fixtures and
covers although the plant had originally been wired for
incandescent lighting and the new fixtures were for fluo
rescent lighting most of the wiring was already in place
and the work was not particularly difficult However
the job required use of a mechanical lift truck which
Deg had used before but not at that job Shaffer was the
maintenance helper assisting Deg on the job and used the
truck 13
According to Deg about 3 30 that afternoon Kohn
came to the Vic Manufacturing plant and asked Deg to
come to the shop between 4 30 and 5 p m When Deg
arrived at the plant about 5 o clock Kohn asked him
about the progress on an office building job and Deg
said that he had about five outlets left to put in Kohn
then asked what Deg had done on that job the previous
Friday and Deg told him At that point Kohn told Deg
that work was slow and that he would have to let two
or three people go Deg replied that Respondent could
not pay people if they were not doing anything and
Kohn handed him his check and said he was sorry Deg
then got his tools and left the shop
2 The discharge of Eugene Harp
Harp began working for Respondent in 1979 as a
maintenance employee having previously worked for
Kohn when the latter owned another company in 1961
Harp signed an authorization card for the Union on Jan
uary 19 but did not otherwise participate in the Union s
organizing campaign
12 The complaint in pars 5(c) and (e) alleges that Kohn made addi
bona] coercive statements on other occasions However no evidence was
adduced at the hearing in support of these allegations and I shall there
fore recommend that they be dismissed t
13 McKeever normally worked on the Vic Manufacturing job but was
not working that day The employees worked four 10 hour days and then
had 4 days off every other weekend thus an employee would work a
sequence of Monday through Thursday have Friday through Monday
off work Tuesday through Friday take off Saturday and Sunday and
then begin the cycle again Thus Monday January 26 was the last day
of a long weekend for McKeever
Kohn discharged Harp on the morning of January 27
telling him that he was discharged for lack of work
3 The parties contentions
The General Counsel contends that Deg and Harp
were discharged in reprisal for their union activity Re
spondent contends however that Kohn was not aware
of any union activity at the time of the discharges and
that the two employees were discharged solely because
of a lack of work and because there had been complaints
about their work For the reasons discussed below I find
no merit to Respondent s contentions
4 Discussion
a Respondent s knowledge of union activity
Respondent contends that Kohn was not aware of any
union activity among the employees until January 28
when he received a letter from the Board s Regional
Office apparently notifying him that the Union had filed
the petition in Case 18-RC-12894 In light of my find
mgs above that Kohn spoke with Shaffer and McKeever
about the Union on January 27 I do not credit his testi
mony that he knew nothing about any union activity
among his employees until January 28 As discussed
above I have found that Bosak was a supervisor and it is
undisputed that he was aware of the union activity as
early as January 13 when Deg told him about the union
meeting to be held the next evening Further Bosak has
known Kohn for over 20 years and has worked for him
for most of that period In these circumstances I con
dude that it is appropriate to impute Bosak s knowledge
of the union activity to Respondent 14 Indeed in light of
Bosak s long association with Kohn I find it most unlike
ly that he would not have advised Kohn of the Union s
organizing campaign and of Deg s role in that campaign
shortly after he himself became aware of it I therefore
conclude that by January 26 Kohn was aware of the
union activity among his employees in general and of
Deg s activity in particular
b Respondent s asserted reasons for the discharges
(1) John Deg
In support of the contention that Deg was discharged
because of a lack of work Kohn testified that in April or
May 1980 electrical work started to decline considerably
and that consequently Respondent employed only one
electrician Deg until December In early December
1980 Respondent obtained the Vic Manufacturing job
Because Kohn calculated that that job would require 3
or 3 1/2 months for an electrician and a helper he hired
14 Interestingly Bosak was called twice as a witness on behalf of Re
spondent and as noted above it is undisputed that he knew of the union
activity as early as January 13 but he was not asked whether he advised
Kohn of the organizing campaign Consequently I find inapposite those
cases which hold that supervisory knowledge should not be imputed to
the employer where the supervisor is not Involved in the allegedly dis
cnminatory activity and credibly denies communicating his knowledge of
the union activity to higher management Cf Kimball Tire Co 240
NLRB 343 344 (1979)
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKeever who worked part time in December 1980
and began working full time the beginning of January It
is undisputed that most of the work on the Vic Manufac
tunng Job was performed by McKeever although it is
also undisputed that Deg worked on that job occasional
ly 15 Kohn testified that on January 20 Respondent was
to have received a second shipment of light fixtures for
the Vic Manufacturing Job but there was a mistake in
the order and the fixtures received were not usable thus
Respondent had to wait for a new shipment which did
not arrive until the end of February In consequence
electrical work which is normally 10 to 20 percent of
Respondent s business fell to less than 10 percent and
therefore according to Kohn he decided that he would
have to lay off one electrician Kohn s testimony as to
the decline in work for the electricians is not contradict
ed but it is also not substantiated 16
Deg testified that the Jobs he was working on were all
incomplete as of the time of his discharge Kohn in con
trast testified that there were no other Jobs at that time
which would take more than a day or two at most to
finish Kohn further testified that he chose to terminate
Deg rather than McKeever because McKeever was a
better electrician and he had had complaints about Deg s
work
I find unconvincing Respondent s contention that
Deg s discharge was prompted by a lack of work for
although presumably Respondent had in its possession
business records such as bills and orders for electrical
work which would have shown how much electrical
work had been performed on a monthly basis prior to
Deg s discharge and how much remained to be done at
the time of the discharge no such documents were intro
duced Indeed the only evidence of the alleged decline
in the amount of work available for the electricians is
Kohn s uncontradicted testimony that a shipment of fix
tures to be used in the Vic Manufactunng job had to be
sent back
On the other hand Deg credibly testified that as of the
time of his discharge he had not completed the work at
the office building and that in addition to that Job and
the work at Vic Manufacturing there was work left to
be done at a firm called the Mail House Inc a Job for
Rabbi Grossbaum and a remodeling Job for Rabbi Ben
ditt Deg further credibly testified that prior to his dis
charge Kohn had not said anything about work being
slow or needing to lay off employees and that he had
never been advised of any complaints about his work
Although Kohn could have decided to retain McKe
ever who had been working on the Vic Manufacturing
" However when Deg worked on that job he Installed fans and did
not work on the lighting rewiring which was performed by McKeever
16 Both the General Counsel and Respondent Introduced documents
which purport to show the number of service calls made by Respondent
during 1980 and 1981 However these documents list total number of
calls without breaking them down into calls that were made by electri
clans versus those made by maintenance employees Thus although these
documents demonstrate that there were fewer calls made in Respondent s
business as a whole in January 1981 than there were in December 1980
they do not show if there was a decline specifically in electrical work
Further it appears from the evidence that much of the work performed
by the electricians was on jobs which continued for several days and
apparently those jobs are not reflected in these documents
Job to perform the other Jobs which Deg had started but
had not completed at the time of his discharge with a
view to putting McKeever back at Vic Manufacturing
when the parts came in I do not credit Kohn s assertion
that he kept McKeever and discharged Deg because
McKeever was a better electrician Although Kohn con
tended that he had received complaints about Deg s
work his testimony in this regard was vague and uncon
vincing and there was no other evidence documentary
or otherwise that Deg s work had been unsatisfactory
Further as indicated above Kohn was not a credible
witness His testimony lacked candor and he appeared to
tailor his testimony to serve Respondent s—and his
own—interest Deg however impressed me as a credible
witness and I believe his testimony that he had not re
ceived any complaints about his work from Kohn or
anyone else Also I note that in a letter which Kohn
sent to a Board agent after receiving notice of the instant
unfair labor practice charge he stated that both Deg and
Harp were discharged for lack of work and made no
mention of any complaints about the work of either man
(2) Eugene Harp
As noted earlier when Harp was discharged Kohn
told him that he was being laid off for lack of work
Kohn expressed this same reason to the Board agent in
vestigating the unfair labor practice charges At the hear
mg however Respondent contended that Harp like
Deg was laid off for two reasons lack of work and un
satisfactory job performance
In support of the contention that there was not enough
work for all the maintenance employees Respondent
relies on the documentary evidence of the number of
service calls which indicates the following 17
Avg Calls per
Day
6/80 216 21 10 29
7/80 189 22 8 59
8/80 207 21 9 86
9/80 258 21 12 29
10/80 258 23 11 22
11/80 230 19 12 11
12/80 273 1821 13 00
1/81 225 21 10 71
Review of the table demonstrates that there were fewer
service calls in January than there had been in any
month since August 1980 However it is undisputed that
in the summer of 1980 Respondent did not lay off any
employees due to the lack of work but instead went to
a shorter workweek for all employees Respondent has
17 This table is based on Respondent s exhibit which Kohn testified
was probably more accurate than a General Counsel exhibit which also
purported to show the number of service calls Respondent made during
various months According to Kohn he prepared the General Counsel s
exhibit while Respondent s exhibit was prepared by clerical personnel in
his office and it is undisputed that certain calls were apparently mad
vertently not reflected in the General Counsel s exhibit
' 8 Apparently the employees were off on December 26 a Friday
Month Total Calls Days Working
1
HERB KOHN ELECTRIC CO 821
not offered an explanation why a similar procedure was
not followed when work declined in January
Kohn testified that he selected Harp for discharge
rather than one of the other maintenance men because
Harp s work performance was not satisfactory Specifi
cally Kohn testified that he had conversations with
Bosak between August and October 1980 in which Bosak
said that he wanted Kohn to discharge Harp because
they were short one truck" and his performance was
poor According to Kohn he told Bosak that he wanted
to wait and see if the number of service calls increased
On cross examination Kohn testified that he had discus
mons with Bosak about Harp s allegedly poor work
during all of 1980 Bosak however testified that starting
the latter part of August or the first part of September
he talked to Kohn and complained about Harp s work
and recommended in September that Harp be discharged
because they were short one vehicle and he felt that
Harp was doing the poorest work Both Bosak and Kohn
testified that Kohn decided to let Harp stay until after
the December holidays
Harp testified that a couple of times in the spring
and summer of 1980 Kohn told him that he was taking
too long on his jobs and on one occasion said I don t
know what I am going to do with you but never
threatened to fire him I credit Harp s testimony that the
complaints about his work were in the summer of 1980
Thus although it appears that there were complaints
from Bosak about Harp s work at that time and that
Harp was told about these complaints neitlier Kohn nor
Bosak specifically warned Harp that a failure to improve
his performance could lead to his discharge and there is
no evidence of poor work by Harp in January which
might have precipitated Kohn s determination to dis
charge him In this regard I specifically do not credit
Kohn s and Bosak s testimony that Kohn made a decision
to keep Harp on until after Christmas As noted I do not
find Kohn to be a credible witness on many issues and
although I have credited Bosak s testimony on some mat
ters his testimony in this regard struck me as less than
candid 2°
5 Analysis and conclusions
r
Inasmuch as I have found that Respondent was aware
of the union organizing campaign and of Deg s specific
activities on behalf of the Union by January 26 and in
view of the timing of the discharges and the animosity
toward the Union expressed by Kohn in his late January
conversations with McKeever and Shaffer I conclude
that the General Counsel has made a prima facie show
ing that Deg s and Harp s union activity was a motivat
mg factor in Respondent s decision to discharge
them 21 Having discredited the testimony of Respond
12 One of the service trucks had been damaged and was not replaced
22 It is worth repeating here the often quoted maxim that [lit is no
reason for refusing to accept everything that a witness says because you
do not believe all of It nothing is more common in all kinds of judicial
decisions than to believe some and not all NLRB v Universal Camera
Corp 179 F 2d 749 754 (2d Cir 1950)
21 Wright Line 251 NLRB 1083 1089 (1980) enfd 662 F 2d 899 (1st
Cir 1981) Limestone Apparel Corp 255 NLRB 722 (1981)
ent s witnesses as to the reasons for and circumstances
surrounding the discharges of Deg and Harp I further
conclude that the reason Respondent discharged the two
employees was not a lack of work or dissatisfaction with
their job performance but a desire to frustrate the
Union s organizing campaign I therefore find that Re
spondent has not come forward with credible evidence
to rebut the General Counsel s prima facie case and that
by discharging Deg and Harp Respondent violated Sec
ton 8(a)(3) and (1) of the Act 22
On the basis of the above findings of fact and the
entire record in this case I make the following
CONCLUSIONS OF LAW
1_
1 Herb Kohn Electric Co is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
2 International Brotherhood of Electrical Workers
Local No 292 AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act
3 By interrogating employees about what happened at
union meetings why they wanted to be represented by a
union and what they thought about the Union and by
telling employees that Respondent could not operate
under union rules threatening employees with layoff
and telling employees that if they were interested in join
ing the Union they should go to work in a union shop
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act
4 By discharging employees John Deg and Eugene
Harp and refusing to reinstate them because of their
union activity Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act
5 A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be or
dered to cease and desist therefrom and take certain af
firmative action designed to effectuate the purposes of
the Act
As I have found that Respondent unlawfully dis
charged John Deg and Eugene Harp I shall recommend
that Respondent be ordered to offer them immediate and
full reinstatement to their former jobs or if those jobs no
longer exist to substantially equivalent jobs without
prejudice to their seniority or other rights and privileges
previously enjoyed I shall further recommend that Re
spondent be ordered to make them whole for any loss of
earnings they may have suffered as a result of the dis
crimination against them by payment to them of ,the
amount they normally would have earned from the date
22 Although Harp s union activity was limited to signing an authonza
lion card in light of the timing of his discharge I conclude that it was
nonetheless motivated by Respondent s desire to diminish its employees
support for the Union See Wright Plastic Products 247 NLRB 635 642
(1980)
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their terminations until the dates of Respondent s
offers of reinstatement less net earnings in accordance
with F W Woolworth Co 90 NLRB 289 (1950) to
which shall be added interest to be computed in the
manner prescribed in Florida Steel Corp 231 NLRB 651
(1977) 23 I shall also recommend in accordance with the
Board s recent Decision in Sterling Sugars 261 NLRB
472 (1982) that Respondent be ordered to expunge from
its records any references to Deg s and Harp s unlawful
discharges and to provide wntten notice to them of that
expunction and to inform them that Respondent s unlaw
ful conduct will not be used as a basis for further person
nel actions concerning them
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed24
ORDER
The Respondent Herb Kohn Electric Co Mmneapo
us Minnesota its officers agents successors and assigns
shall
I Cease and desist from
(a) Interrogating employees about what occurred at
union meetings or what they think of the Union
(b) Threatening employees with reprisal for their
union activity
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment be
cause they engaged in union activities
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act
2 Take the following affirmative action which is nec
essary to effectuate the policies of the Act
(a) Offer John Deg and Eugene Harp immediate and
full reinstatement to their former jobs or if those jobs no
longer exist to substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed and make them whole for any loss of
earnings they may have suffered as a result of the Re
spondent s discrimination against them in the manner set
forth in the section of this Decision entitled The
Remedy
(b) Expunge from its files any reference to the dis
charges of John Deg on January 26 1981 and Eugene
Harp on January 27 1981 and notify them in writing
that this has been done and that evidence of these unlaw
ful discharges will not be used as a basis for future per
sonnel actions against them
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
" See Isis Plumbing Co 138 NLRB 716 (1962)
24 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(d) Post at its St Louis Park Minnesota facility
copies of the attached notice marked Appendix 25
Copies of the notice on forms provided by the Regional
Director for Region 18 after being signed by the Re
spondent s representative shall be posted it immediately
upon receipt and maintained by it for 60 consecutive
days in conspicuous places including all places where no
tices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered defaced or covered by any other
material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint allegations
not specifically found herein be dismissed
25 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
— NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees about their sym
pathies for or activities on behalf of International Broth
erhood of Electrical Workers Local No 292 AFL-
CIO or any other labor organization
WE WILL NOT threaten employees with reprisal for
union activity
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of employ
ment or any term or condition of employment because
they engage in union or other protected concerted activi
ties
WE WILL NOT in any like or related manner interfere
with restrain or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act to self organi
zation to form join or assist labor organizations to bar
gain collectively through representatives of their own
choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection or to refrain from any or all such activity
WE WILL offer John Deg and Eugene Harp immediate
and full reinstatement to their former jobs or if those
jobs no longer exist to substantially equivalent jobs
without prejudice to their seniority or other rights or
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings they may have suffered as
a result of our discrimination against them with interest
WE iWILL expunge from our files any references to the
discharges of John Deg and Eugene Harp on January 26
1981 and January 27 1981 respectively and WE WILL
notify them thgt this has been done and that evidence of
HERB KOHN ELECTRIC CO 823
these unlawful discharges will not be used as a basis for
future personnel actions against them
HERB KOHN ELECTRIC CO