Independent Sprinkler & Fire Protection Co.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 941 (N.L.R.B. 1975)

INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
Independent Sprinkler & Fire Protection Co. and
Sprinkler Fitters and Apprentices Local Union No.
821 of Florida , affiliated with the United Associa.
tion of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States
and Canada . Cases 12-CA-5946,12-CA-6040, and
12-RC-4255
September 30, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 26, 1973, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions' and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 2 of the Administrative Law Judge and
to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Independent Sprinkler
& Fire Protection Co., Tampa, Florida, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
2 Notwithstanding that the complaint alleged and the Administrative Law
Judge found that Respondent violated Sec . 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union pursuant to its request for
bargaining on or about November 29, 1972, the General Counsel filed a
supplemental brief in which he stated he no longer contended that the
Board should find such action violated Sec . 8(a)(5), citing Steel-Fab, Inc,
212 NLRB 363 (1974). As a result of our consideration of the impact of the
Steel-Fab doctrine in this and other cases , the Board held in Trading Port,
Inc., 219 NLRB No. 76 ( 1975), that it would no longer follow Steel-Fab in
dispensing with finding 8(aX5) violations in cases in which employers reject
recognition demands based on valid card majorities and embark upon a
clear course of unlawful conduct designed to undermine the union . This is
such a case . Accordingly, for the reasons stated in Trading Port, we adopt
the Administrative Law Judge 's findings on this aspect of the case and
941
conclude that the Respondent violated Sec . 8(a)(5) by refusing to bargain on
and after December 5, 1972, the date by which the Union had a majority.
Member Fanning adopts the findings , conclusions, and recommendations
of the Administrative Law Judge for the reasons stated in his concurring
opinion in Trading Port.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: Cases
12-CA-5946 and 12-CA-6040 (herein called the complaint
cases or the unfair labor practice cases ) present the ques-
tions , inter alia, of whether Respondent Independent
Sprinkler & Fire Protection Co., herein called the Compa-
ny, (I) violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, herein called the Act, by interrogat-
ing and threatening employees with respect to their union
activities; (II) violated Section 8(a)(3) and (1) of the Act by
terminating 11 employees to discourage union activity; and
(III) violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with Sprinkler Fitters and Ap-
prentices Local Union No. 821 of Florida, affiliated with
the United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada, herein called the Union.' Case 12-RC-4255
(herein called the representation case) presents the ques-
tions of (I) whether 10 challenged ballots (eight of them
cast by individuals named as discriminatees in the original
complaint), which ballots are sufficient in number to affect
the results of an election directed by the Regional Director
in that case, should be opened and counted; and (II)
whether that election should be set aside on the basis of
objections setting forth conduct alleged to be unlawful in
the unfair labor practice case. The cases having been con-
solidated for hearing, such hearing was held before me in
Tampa, Florida, on May 1 through 4, 1973, and on Octo-
ber 24, 1973.2
Upon the entire record (including the record in the pre-
election representation case hearing ; see Section 9(d) of the
Act), upon my observation of the witnesses at the postelec-
tion hearings, and after due consideration of the briefs
filed by the Company and the Union,3 I make the follow-
ing:
i The charge in Case 12-CA-5946 was filed on February 14, 1973; the
amended charge in that case was filed on March 5, 1973; and the charge in
Case 12-CA-6040 was filed on May 29, 1973. The original complaint issued
on March 28, 1973, and the amended complaint on August 1, 1973.
The charge in Case 12-CA-6040 and the proof of service thereof are
hereby received in evidence as ALJ Exh. la and lb , respectively . The re-
maining formal papers are included in G C Exh. 1
2 Cases 12-CA-5946 and 12-RC-4255 were consolidated for hearing pur-
poses by the Regional Director . Pursuant to motions filed by the Union and
counsel for the General Counsel on September 14, 1973, 1 consolidated Case
12-CA-6040 with the previously consolidated cases, granted the motion to
amend the complaint so as to add (in substance) Sec. 8 (a)(5) allegations,
granted the motion to reopen the record, and set the cases down for further
hearing. On October 13, 1973, the Board denied the Company's motion for
special permission to appeal from this order.
3 The record herein includes almost 1,300 pages of transcript and about
70 exhibits, 20 of which are payroll ledger sheets each of whose individual
entries had individual or collective significance to this case in a number of
different connections . Notwithstanding the length of the record, and the
Continued
220 NLRB No. 140
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATION
INVOLVED
The Company is a Florida corporation with its principal
office in Tampa, Florida, where it is engaged in the instal-
lation of fire sprinklers . During the year preceding the is-
suance of the complaint , the Company purchased and re-
ceived goods and materials valued in excess of $50,000
from suppliers located in Florida, who in turn received said
goods and materials directly from outside Florida. I find
that, as the Company concedes , it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and
that exercise of jurisdiction over its operations will effectu-
ate the policies of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE ALLEGED SECTION 8 (axl) AND (3) VIOLATIONS AND
THE ALLEGED OBJECTIONABLE CONDUCT
A. Introduction
The Company received the Union's bargaining demand
on November 27, 1972, and its representation petition
about the same date ; a Board election was held on Febru-
ary 26, 1973. The tally of ballots showed no votes for the
Union, 5 votes against the Union , and 10 challenged bal-
lots, 8 of them cast by individuals named in the original
complaint . The General Counsel and the Union contend
that during the preelection period the Company terminated
11 employees (including some who cast challenged ballots)
whose authorization cards (if any) could have contributed
to the Union 's showing of interest, without regard to
whether which particular employees actually signed union
cards. If the real and sole reasons for the terminations, the
Company's tendered explanation therefor , which are dis-
cussed in detail infra, would establish that such termina-
fact that (as counsel must have realized by the conclusion of the May hear-
ing) many of the subsidiary issues herein turn on a number of pieces of
evidence which are scattered throughout the record and sometimes appear
at unexpected points, counsel for the General Counsel failed to file any
briefs . In this omission , counsel was presumably following the standing poli-
cy of Region 12, which my colleagues ' protests have so far failed to budge.
See Jefferson Stores, Inc., 201 NLRB 672 (1973); Sheet Metal Workers Inter-
national Association, Local Union No. 223 (Continental Air Filters), 196
NLRB 55, 58 , fn. 2 (1972); Giddy Girls, Inc., Case 12-CA-5756, Administra-
tive Law Judge 's Decision issued July 27, 1973.
I see no real reason to suppose that my protests will prove any more
effectual than theirs in inducing Region 12 to file briefs where , as here, they
would plainly be useful to the Administrative Law Judge in deciding the
case. Further , I am well aware that I alone am to blame for any errors and
omissions in this decision. Nonetheless , I remain optimistic enough to hope
that to the extent such deficiencies might have been forestalled by a brief
from counsel for the General Counsel , their existence may generate-in
those officials with power to alter Region 12 policy of almost never filing
briefs-pangs of conscience like those they would no doubt suffer if their
policy consistently interfered with the fulfillment of the part of trial
counsel's responsibility which Region 12 counsel are permitted to exercise-
namely , the adducing of the evidence whose subsequent fate Region 12 now
baldly leaves to the Administrative Law Judge 's unassisted evaluation. See
also infra, sec. IV , A, fns . 6 and 7.
tions did not violate the Act. The Union and counsel for
the General Counsel contend, and the Company denies,
that at material times prior to the election a majority of the
employees in a appropriate unit had signed union cards.
B. Background
The principal officers and stockholders of the Company,
which was incorporated in February 1972, are the same as
the principal officers and stockholders of Moore Pipe &
Sprinkler Company, a firm whose business includes the in-
stallation of fire sprinklers and which has recognized the
Union for many years. Shortly after the Company's forma-
tion, Charles Montgomery, who had been Moore Pipe's
assistant chief engineer, became the Company's chief engi-
neer.4 Montgomery was hired by company Assistant Trea-
surer James Best, who became Montgomery's immediate
superior, and who (by Montgomery's admission) told him
that the Company was going to be an open shop or non-
union operation . Best also induced Bill Diaz to leave
Moore Pipe to become the Company's construction super-
intendent, a post which he held until at least late in March
1972.5 In late February or early March, Union Business
Manager Clyde Cleare asked Diaz if the Company would
negotiate an agreement with the Union. After several con-
versations along this line, Diaz told Cleare that he had
discussed the Union's request with some of the people that
had financial interest in the Company, including Jerry Ev-
ans (president of both the Company and Moore Pipe), and
that "they would not commit theirselves to any part of the
local union." 6
After Diaz' resignation, Montgomery served as both
chief engineer and construction superintendent until late
May or early June 1972. Thereafter, until late September
1972, the Company's construction superintendent was Le-
land Hogg. When Hogg was hired, Montgomery told him
4 Montgomery occupied this position on May 4, 1973, when the hearing
initially closed . Shortly thereafter, he rejoined Moore Pipe as district engi-
neer. However, the Company's October 16, 1973, motion to revoke a subpoe-
na duces tecum requiring Montgomery to produce certain company records
made no assertions that such records were no longer within Montgomery's
control. After I denied the motion to revoke, the subpoenaed records were
produced.
5 Best , who signs the Company's paychecks, was Moore Pipe's accountant
or head bookkeeper both before and after the Company 's formation. His
office is located in the same Jacksonville building as Moore Pipe's, whereas
Montgomery 's office is in Tampa. Best's telephone is initially answered by a
female voice which says, ". . . This is Moore Pipe and Sprinkler Company."
Montgomery testified that Best and Diaz "may have " initially set the
Company's general labor policy.
6 No contention is made either that the Union then represented a majority
of the Company's employees, or that the Union 's demand was improper (see
Sec 8(f) of the Act)
The Union requests me to take judicial notice of Florida Automatic Sprin-
kler Association, 199 NLRB 1151 ( 1972), finding that in late 1970 Moore
Pipe, largely through its and the Company's common president , Jerry Ev-
ans, violated Sec. 8(a)(2), (3), (5), and (1) by assisting and contracting with
a particular union, by withdrawing recognition from a sister local of the
Union here, and by failing to afford certain benefits under its contract with
that sister local. There is no evidence that Jerry Evans participated in the
unfair labor practices alleged herein . I do not regard the unfair labor prac-
tices found in Florida Sprinkler to be sufficiently related to those alleged
herein-as to time, nature , and participants-so as to have any probative
weight in the instant case.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
that the Company "was a bastard outfit out from Moore
Pipe and that they wouldn't go union ; they would close the
doors first . . . if anybody said anything about the Union,
. get rid of them on a different matter ; . . . lay them
off. Get the thing before it started ." Montgomery made
similar remarks to Hogg on several other occasions-in
late June, about July 19, and in mid-September . Further,
Montgomery told Hogg that any time the Company had to
go up to Moore Pipe to obtain pipe or for some other
purpose , "we weren 't supposed to let on about it . . . we
wasn 't supposed to let ourself be seen." Montgomery told
Hogg that if the Company sent a truck to Moore Pipe to
obtain pipe , to meet Moore Pipe at a whiskey store and
pick up the pipe there .? On the first day of Jerry Gentry's
employment, in late July 1972, Hogg told him that the
Company was "the bastard outfit from Moore Pipe," that
the Company would close down if it went union, and that
"even if the men talked of union , don't talk it around him.
He . . . had orders to lay anybody off, or report anybody
that had talked of a union ." Montgomery admitted that the
Company bids on strictly nonunion jobs .8
7 Company witnesses Montgomery and Warner E. Bouton (its sales man-
ager) testified that the Company purchases about half its material from
Moore Pipe . Hogg credibly testified that while he was working for the Com-
pany, it bought practically all its fabricated pipe from Moore Pipe, and
would frequently have Moore Pipe "okay" its credit for supplies from other
sources.
s My findings as to the Hogg-Montgomery conversations are based on the
credited testimony of Hogg, who at the time of the hearing was employed by
another sprinkler firm in which he had no financial interest ; as to the Hogg-
Gentry conversation , on Gentry's credited testimony . Montgomery testified
that he had never told any of his supervisors that the Company would close
down if it went union (but see infra, fn. 16), that he had never told any of his
supervisors to lay off any employee they knew was for the Union, and that
he had never told Hogg that the Company was a "bastard outfit of Moore
Pipe ." I credit Hogg's testimony about these conversations on the basis of
the support lent to the contradicted portions of his testimony by the testimo-
ny of Gentry (a disinterested witness whose demeanor impressed me favor-
ably), by the evidence of the Company's and Moore Pipe's common owner-
ship and control , and by the undenied portions of Hogg 's testimony
regarding Montgomery 's efforts to conceal that relationship , Montgomery's
unreliability as a witness in other respects (see especially sec. 11, E , 1, infra),
and the witnesses' demeanor. Evidence regarding the relationship between
Moore Pipe and the Company has been considered as assistance in de-
termining whether Montgomery made the remarks testified to by Hogg-a
question relevant to the Company' s motive for the allegedly unlawful termi-
nations-and not in connection with whether Moore Pipe and the Company
occupy single -employer status-an issue not presented here Accordingly,
the Company errs in relying on Gerace Construction, Inc. and Helger Con-
struction Company, Inc., 193 NLRB 645 (1971), and Frank N. Smith Associ-
ates, Inc., and Keuka Construction Corporation, 194 NLRB 212 (1971); and
its motion at the conclusion of the hearing to excise from the record all
testimony and exhibits relating to Moore Pipe is hereby denied.
Jerry Bowles, who had worked for Moore Pipe until July 1972 and for the
Company thereafter , credibly testified that in November 1972, Jerry Bar-
row, who is Moore Pipe's "district engineer" for the Tampa area and is
directly under Bob Mathews (Moore Pipe's chief construction superinten-
dent and chief engineer and , apparently , a Moore Pipe director as well), said
that when Jacksonville union fitters were on strike , Moore Pipe would have
the Company 's fitters available to put in the work . Still according to Bowles'
credible testimony , Barrow told him that a particular job was a Moore Pipe
job on which the Company was trying to do good work in order to help get
another contract-which , however, the Company did not get . Barrow, who
did not testify , draws up fabricating drawings for sprinkler systems to be
installed by Moore Pipe, and occasionally assists company employees in
performing similar work for the Company His job requires him to read
contracts with customers , which show the number of man -hours (and the
construction time ) the job is supposed to take ; and he also has access to
943
After Hogg resigned as construction superintendent in
late September 1972, Montgomery again served as both
construction superintendent and chief engineer until De-
cember 18 , 1973, when John Leen assumed the latter posi-
tion directly under Best. In connection with Leen 's leaving
a job in Ohio to accept employment with the Company, the
Company hired several other individuals from Ohio who
began to work for it on December 4 or 5, 1972 (see infra,
sec. II ,D, l,c).
C. The Allegedly Discriminatory Terminations and Related
Alleged Violations of Section 8(a)(1)
1. The 1972 terminations; alleged Section 8(a)(1)
violations
a. Mayfield
James Everett Mayfield was hired by Hogg in late Au-
gust or early September 1972 at $3.50 an hour. Hogg testi-
fied that Mayfield was a good worker. About October 26,
during a conversation at a bar after work, Montgomery
asked Mayfield if he had heard anything about a union.
Mayfield truthfully replied that he had not .9
A few days before employee Glen Vega received the
Union authorization cards which he distributed to May-
field and others, Montgomery saw on the seat of Vega's
automobile an envelope which bore the name of Clyde
Cleare, the Union's business manager. Montgomery then
asked Vega whether he was going union. Vega replied,
"Yes, because I just want to benefit myself." Montgomery
looked at Vega, who then asked, "Is this going to hurt me?"
Montgomery admittedly replied that he "didn't think so."
Montgomery then said that he used to be a union man,
that now he was in a nonunion company, and that " it's got
this benefit and it's got that." Although during this conver-
sation Vega said that he had applied for the apprenticeship
program, he did not tell Montgomery that the Union enve-
lope contained application blanks for the program.10
On November 7, 1972, Mayfield signed a union card
which he had received from Vega, who was working with
him on the Star Kitchens job (infra, sec. III ,B). Two days
later, on Thursday, November 9, Montgomery told May-
field that he was being laid off because of no work, and
that he should call Montgomery in a "couple of days and
let him get some work lined up." When Mayfield called
Montgomery the following Monday, November 13, Mont-
Moore Pipe's and the Company's files. I am not persuaded that his responsi-
bilities are such as to render his statement to Bowles binding on the Compa-
ny as an admission . Accordingly, I attach no probative weight thereto
9 This finding is based on Mayfield's credited testimony. I discredit
Montgomery's denial that the Union was discussed during this conversation
on the basis of the witnesses ' demeanor and Montgomery 's unreliability as
a witness in other respects.
After Mayfield tendered this testimony , counsel for the General Counsel
moved to amend the complaint to allege that this conversation constituted a
violation of Sec. 8 (a)(l) of the Act Over the Company's objection, I granted
the motion
10 These findings are based on Vega's credited testimony . Montgomery's
version of this conversation was somewhat different. To the extent that their
testimony differs, I credit Vega over Montgomery, on the basis of their
demeanor and Montgomery 's unreliability in other respects . The complaint
alleges that this conversation violated Sec. 8(a)(l) of the Act.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gomery told him to check back in a day or two and Mont-
gomery would see what he had. For the next two weeks,
Mayfield called Montgomery every other day, but Mont-
gomery told him that nothing was going on. On November
13, Michael H. Wilson began to work for the Company as
a helper at $2.50 an hour. Montgomery testified that Wil-
son "had no value to the company." While the record fails
to show the job to which Wilson was initially assigned, as
of December 5 he was working on a job in Pompano
Beach , a city where Mayfield had previously worked. On
November 17, Montgomery hired Joe Phillips as a "fitter"
at $3.50 an hour and instructed him to report to work on
the Gayfer's Mall job in Clearwater 11 on November 22;
Phillips' prior experience had been as a plumber and he
knew nothing about sprinkler installation. The week of No-
vember 24, Mayfield obtained a "little job" elsewhere. He
has not worked for the Company since.
b. The December 1972 terminations
(1) Vega, Neptune, Hancock, and Van Nathan
Glen Vega was hired by Chief Engineer Montgomery or
then Construction Superintendent Hogg in late August
1972 at $3.50 an hour. James Neptune was hired by Hogg
in August 1972 at $3.00 an hour . Russell Hancock was
hired by Montgomery or Hogg in early September 1972 at
$3.25 an hour; he received a raise to $3.50 an hour in mid-
November . 12 Hogg testified that all three of these employ-
ees were good workers . The record fails to show Ronald
Van Nathan's date of hire; he appears on the Company's
payroll for the week ending December 3, 1972 , at a rate of
$3.00 an hour, and also on the preceding payroll.
In late October or early November 1972, Vega received
union authorization cards from Union Business Agent
Cleare and passed them out-partly on the Star Kitchens
job where Vega was then working-to a number of his
fellow workers, excluding , however , Irish , Martinez, Low-
ery, Wilson, and Dickson . 13 Vega himself signed a card on
November 2; Montgomery conceded that he knew Vega
was a union adherent . At Vega's instance, Hancock and
Van Nathan signed union cards on November 2, and Nep-
tune signed one on November 7 (infra, sec. III,B).
In November 1972, after signing a union card, Neptune
approached Chief Engineer Montgomery to inquire about
a promised raise which Neptune had never received. Nep-
tune told Montgomery that he was going to join the Union
and get better benefits and more money because he was
getting nothing but promises . 14 During this same conversa-
11 Mayfield lived in Alachua , Florida, about 350 miles from Clearwater,
but he credibly testified that he had worked "all over," including Georgia,
Pompano Beach , and Vero Beach
iz In late September or early October , Hancock acted as foreman on the
Star Kitchens job for a week , after which the job proceeded without a
foreman.
13 The first three of these individuals were then working in Pompano
Beach , while Vega was then working on the Star Kitchens job in Tampa.
Wilson did not start working for the Company until November 13, and was
assigned to Pompano Beach on December 5 at the latest ; Vega credibly
testified that he never met Wilson . Vega also credibly testified that he never
heard of Dickson.
14 This finding is based on Neptune 's credited testimony . On the basis of
tion, Montgomery told Neptune that some experienced fit-
ters were coming down from Ohio "to supervise and to
work with us." Montgomery stated that "these people were
making really good money; between $5.00 and $6.00 an
hour, maybe more;" and that maybe some of the
Company's present employees might be making that too.
Also in early November, and again some time between No-
vember 22 and December 4, Montgomery told employee
Vega and other unidentified employees that the Company
was "bringing these men down from Ohio to come down,
not to take our jobs-that was never brought up-they
were just supposed to be coming down ... to fill in areas
that we needed them."
About November 27, the Company directed Vega to
take some parts to a job in Chiefland, Florida, about 120
miles from Tampa. The crew on that job consisted of Fore-
man Jerry Gentry (a supervisor, infra, sec. II,A) and em-
ployees Bruce Hodge and Pascal Johnson . In Hodge's
presence , Vega solicited Gentry's support for the Union.
While Hodge was working elsewhere on the project, Gen-
try indicated that he (Gentry) wanted to be in the Union.
Vega had no cards with him, but said that he would bring
or mail cards to Gentry the next time he came into the
area .15 About November 30, Gentry telephoned Montgom-
ery in Tampa, and said that he had heard that Vega was
getting a union going . Montgomery replied that he knew
about this. Gentry said that he had heard there was to be a
meeting. Montgomery replied that he knew nothing about
the meeting; and that he would like to know when the
meeting was going to be, who was going to lead those
meetings, and who was going to start this meeting. Mont-
gomery asked Gentry whose side he was on. Gentry indi-
cated that he was for the Company. Montgomery said he
was "kind of glad to see that [Gentry] was on his side and
he would do everything in his power to keep [Gentry] with
the Company." Gentry asked what the effects would be if
the Company went union. Montgomery replied that "there
was just no way that [the Company] could operate, there's
no way possible the Company could operate." 16
On the morning of Tuesday, December 5, 1972, when
Vega, Hancock, Neptune, and Van Nathan reported to
work on the Gayfer's Mall job, Chief Engineer Montgom-
ery told them that they were being laid off for lack of
the witnesses' demeanor and Montgomery' s unreliability as a witness in
other respects , I discredit (to the extent inconsistent with Neptune's testimo-
ny) Montgomery 's testimony that he never discussed the Union with Nep-
tune and that Neptune never said in Montgomery 's presence that he was
going to join the Union the first chance he got.
16 Vega was laid off on December 5, before he got around to keeping this
promise.
16 My findings as to the Montgomery -Gentry conversation are based on
the credited testimony of Gentry, whose demeanor impressed me favorably.
While Gentry was named in the original complaint as an alleged discrimina-
tee, before he testified he had been advised of the motion of counsel for the
General Counsel to strike his name from the complaint as a supervisor. On
the basis of the witnesses' relative interest and their demeanor, and in view
of Montgomery 's unreliability as a witness in other respects , I do not credit
Montgomery's version of this conversation to the extent that it conflicts
with Gentry's. More specifically, I do not credit Montgomery's testimony
that he expressed to Gentry a lack of interest in union "things" and that he
"never did" tell any of his supervisors that the Company would close down
if it went union-testimony about which he later equivocated by stating that
he did not "think" he told Gentry that the Company would have to close the
door if it went union.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO. 945
work . '7 Vega replied , "What do you mean , lack of work? I
don't understand that. There's so much work left in this
job. We just started it." Noticing that employee Joe Phillips
(who had started working for the Company the previous
week) and several "strangers" from Ohio were working on
the job , Vega pointed out that several new employees were
not being included in the layoff . Montgomery replied that
"he had brought down these men, that he had paid a thou-
sand dollars apiece to bring these men down and that was
why he felt that [the other employees ] had to go" first."
Vega said that his wife was pregnant , pointed out that it
was just before Christmas , and asked , ". . . how could you
do something like this?" Montgomery merely shrugged his
shoulders.19
Vega and Neptune then returned to the shop and asked
then Assistant Construction Superintendent Leen why the
employees were getting laid off . Leen replied that he did
not understand why. Vega asked , "... is it because of the
men from Ohio?" Leen replied , "... no, because they
were just being brought down here just for the purpose of
assisting us and helping us out and in a supervision catego-
ry, but also to help us out on the job too because . . . we
needed more men on the job." Leen was unable to explain
why these employees were being laid off , and said that he
would get in touch with Montgomery and then the employ-
ees could talk to Leen further.20
On December 7, after picking up his paycheck in the
Company's office , Hancock asked Montgomery about
when other jobs would be open . Montgomery said that the
pipe for another job was supposed to be delivered in about
a week , and that he would call and let the employees know
when they were supposed to come back to work. Mont-
gomery told Hancock to call him the next day "and he
should know something ." Montgomery also asked if Han-
cock knew that Vega was going into the Union . Hancock
replied that he knew this and that he himself was also going
into the Union. Montgomery said he would call them when
another job opened , and Hancock then left. In accordance
with Montgomery 's instructions, on the following day
Hancock telephoned Montgomery to ask if any other jobs
had opened up. Montgomery replied no , that the Company
had "lost the contract" on the Bayou Manor job. Mont-
gomery then again asked Hancock if he knew that Vega
was going into the Union. Hancock again replied that he
did. Montgomery then asked Hancock if he was going, and
Hancock again stated that he was . Next, Montgomery
asked if he knew of anybody else in the Company that was
going ; Hancock replied that he did not know of anybody.
The Company had in fact obtained the Bayou Manor job,
which it began in September 1972 (prior to Hancock's lay-
off) and which was still in progress at the time of the initial
17 Also laid off from the job at this time was John Dickson , Jr., paid at
$3.50 an hour, who is not named in the complaint.
Is The undisputed evidence shows that Montgomery's explanation was
wholly irrelevant to the retention of Phillips. See infra, sec. II ,D,I,c.
19 My findings in the foregoing paragraph are based on the mutually
consistent and credited testimony of Vega , Neptune, and Hancock, not de-
nied by Mongtomery.
20 My findings as to these remarks by Lean are based on Vega's and
Neptune's uncontradicted and credited testimony . Leen was not asked
about this conversation.
hearing in early May 1972.21 The Company never called
Hancock about any other jobs.
On a date subsequent to December 5, but not otherwise
fixed in the record, Vega and Neptune went to
Montgomery's office and asked him whether they were
going to be going back to work. Montgomery said there
would be no recalls.
(2) Gurchick
Michael James Gurchick was hired by Chief Engineer
Montgomery in late September 1972 at $3 an hour. On
November 1, 1972, while assigned to the Star Kitchens job,
Gurchick contracted appendicitis and had to go into the
hospital . When Gurchick's father reported that his son was
in the hospital, Montgomery told the senior Gurchick that
the younger Gurchick should not worry about his job.
At Vega's instance , Gurchick signed a union card on
November 8, while he was still in the hospital. In mid-
November, after leaving the hospital, he went to the
Company's office to pick up his paycheck and told the
secretary that he would be back December 1 ready for
work. About a week later , Gurchick told Montgomery that
the doctor said Gurchick would be able to work December
1. Montgomery replied, ". . . all right." On Monday, De-
cember 4, when Gurchick went in ready for work, Mont-
gomery told him that there was no work that day and he
should come back the next day. When Gurchick returned
on December 5, Montgomery told him that there was no
work that day. Montgomery then went off and, upon his
return, said "I guess I'll put you on the officially laid off
list." Montgomery told Gurchick to check back at the end
of the week. Gurchick called on Thursday or Friday but
Montgomery told him there was no work.
This was Gurchick's last contact with Montgomery.
While working on the Star Kitchens job prior to his hospi-
talization , Gurchick had been told that his next job would
be on Bayou Manor.
(3) Wilcox and Parker
Glen Wilcox was hired in mid-October 1972 by then
Foreman John Delmas (infra, sec. II,E,1) at $2.75 an hour.
Ronald Parker was hired by Delmas some time after June
1972, the exact date not appearing in the record. About
November 1972, Parker received a merit increase of $.25
an hour. At the time of his termination , he was receiving
$3.00 an hour. At Vega's instance, Wilcox and Parker
signed union cards on December 2 (infra, sec. III,B).
21 The foregoing findings are based on Hancock 's credited testimony.
Montgomery's testimony admitted that Hancock telephoned him about
going back to work, and did not touch on whether the Union was men-
tioned. In crediting Hancock, I note Montgomery's testimony that he did
not "think" he told Hancock that the Company had lost the Bayou Manor
Job. Because Montgomery himself testified that the Bayou Manor job had
begun on a date prior to Hancock 's layoff and was still in progress at the
time of the initial hearing , Montgomery's lack of complete certainty about
whether he made a contrary representation to Hancock not only indicates
the accuracy of Hancock 's unqualified testimony, but also suggests aware-
ness by Montgomery that he was not always candid in telling employees
about why the Company was not offering them work
The complaint alleges that Montgomery's interrogation of Hancock vio-
lated Sec . 8(a)(1) of the Act.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 5, when Wilcox and Parker were working
on the ABC Packaging job in Tarpon Springs, Montgom-
ery instructed Foreman Delmas to lay them off. This was
the first time Delmas had heard of this layoff. Delmas gave
the employees no reason therefor and, so far as the record
shows, neither did Montgomery give a reason to Delmas.
At that time , there was a week to a week and a half of work
left on that job.
(4) Hodge
Hodge's last tour of duty with the Company began about
November 1, 1972, when he was hired by Foreman Gentry
at $3.25 an hour. At the time when this tour of duty ended,
the crew to which he was assigned (consisting of Hodge,
employee Pascal Johnson , and Foreman Gentry) was
working on the Winn-Dixie job in Palatka , Florida. The
crew's employment with the Company terminated on De-
cember 9, 1972, under circumstances discussed infra.22
During the period just prior to this separation, Gentry's
crew had been working on four different jobs, none of
which had been completed at the time of the layoff. The
amount of work still to be done ranged between 2 weeks
(the Palatka job) and 2 days.
As previously noted, about November 27 Vega, who was
in the Chiefland area on an errand , solicited Gentry's sup-
port for the Union in Hodge 's presence, but had failed to
bring any union cards with him . Hodge did not sign a
union card , and there is no evidence that he engaged in
union activity of any sort. Nor is there any evidence that
Pascal Johnson, who is not named in the complaint, en-
gaged in any union activity. Foreman Gentry, who was
receptive to Vega's solicitation , is named in the complaint,
but for reasons set forth infra, sec. IV,B,1, fn. 11, the Gen-
eral Counsel's motion to strike his name from the com-
plaint, on the ground he was a supervisor , is granted.
As to the events leading up to Hodge's separation from
the Company, Foreman Gentry and employee Hodge on
the one hand, and Chief Engineer Montgomery on the
other, gave sharply differing versions . On the basis of their
demeanor and for the additional reasons set forth below, I
credit Gentry's and Hodge's testimony, although (as I have
specifically noted in making such findings ) I believe that
during certain conversations which (I find) occurred on the
dates given by Gentry and included the remarks to which
he testified, the parties also made certain remarks testified
to by Montgomery . Except so far as specifically noted, I
discredit Montgomery's testimony regarding his conversa-
tions with Gentry and other events relating to Hodge's se-
paration . My findings as to these events are as follows:
On December 4, Montgomery telephoned Foreman
Gentry, told him to get as much done as possible on the
Palatka job, and said there was a "possibility" of a layoff.
22 The paychecks which the crew received during that week were all short
(Gentry's by $100}-a not infrequent occurrence . After arranging with
Montgomery earlier in the week for the Company to pick up at Gentry's
home a company truck the employees had been using , Gentry threatened on
December 9 to put a lien on the truck for the amounts owed to the crew.
After Montgomery "threatened the Sheriff after him ," the Company picked
up the truck, without incident , on December 16. Gentry did not receive all
the money owed him until some time between December 30 and January 6.
Montgomery said that he had a meeting in Jacksonville 23
coming up on Friday, December 8, and would be up to see
Gentry on that day. When Montgomery came to the job
that day, December 8, he told Gentry that the purpose of
the Jacksonville meeting was to see about the "outlook" or
"outcome" of the Company, who was to be kept, and who
was to be laid off. Montgomery further said that he was
"pretty sure" Gentry's men would be laid off; that Gentry
might still be able to work, but if he worked, he would have
to work with "one of the supervisors or men that he was
bringing from the north here," In addition, Montgomery
said that it was doubtful whether the Company would stay
in the area, because it did not appear that the Company
could compete and its jobs in the area were losing money.
On the morning of Saturday, December 9, when Gentry
telephoned Montgomery about paycheck difficulties that
day, Montgomery told Gentry that it was "certain" his
men would be laid off, but Gentry might be kept on. Mont-
gomery told Gentry he could have a job, but in Jackson-
ville or Tampa only. Gentry (who lived in Alachua, Flori-
da) replied that he was financially unable to move,25 and
commented that the Company "got plenty of work down
here . Who's going to run these jobs ?" Montgomery replied
that so far as he knew, "Jacksonville will." Gentrdy then
told his crew that they might be getting laid off? Later
that day, Montgomery advised Gentry that both he and the
two rank-and-file crew members were being laid off that
day. Gentry duly relayed this message to the crew, adding
that the Company might "fold up" or go out of business?
The crew finished off the day on Saturday, December 9,
and did not report for work again.
The nub of Montgomery's version of the events leading
to Hodge's separation is that he told Gentry that the crew
was to be laid off at the conclusion of the Palatka job, on
which 2 more weeks' work remained after Gentry's crew
left the job. Montgomery suggested in his testimony that
Gentry thereupon quit immediately and, in violation of
Montgomery's instructions , told the employees they were
being laid off immediately, action which Montgomery at-
tributed to Gentry's annoyance at the prospect of either
losing his job or having to leave the area . However, I think
it unlikely that dissatisfaction with the prospect of a sup-
posedly unjust layoff would have led Gentry-whose de-
meanor created no suggestion of impulsiveness or a quick
temper-to forego 2 weeks' employment (and 2 weeks' op-
portunity to seek a new job) just before Christmas, when he
23 Montgomery 's office was in Tampa, but the Company officials ' offices
are in Jacksonville.
24 This finding is based on Montgomery's testimony , which I credit in
view of Hodge 's undenied and credited testimony that Gentry relayed such
a message to him when laying him off. I do not regard Montgomery's cred-
ited testimony in this respect as inconsistent with Gentry's credited denial
that Montgomery said the Company "could not compete in that area with
other sprinkler companies and that 's why he was phasing out [Gentry's]
crew." The immediate reason tendered for the phasing out of the crew was
that the Company was planning to make other arrangements for performing
the uncompleted jobs which the crew had been doing.
25 Montgomery conceded that he offered and Gentry refused a job in
Tampa , but according to Montgomery this conversation occurred about
November 28. I credit Gentry 's testimony regarding the date.
26 This finding is based on Hodges' credited testimony.
27 My findings in the last sentence are based on the testimony of Gentry
and Hodge.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
had a wife and newborn baby to support . Moreover, I
think it even more unlikely that in order to get even with
the Company, Gentry would have by misrepresentation de-
liberately deprived the other members of his crew (of
whom he thought highly , and one of whom he had person-
ally hired) of the opportunity to work for 2 more weeks just
before Christmas . Furthermore , Gentry's and Hodge's de-
meanor on the witness stand impressed me much more fa-
vorably than did Montgomery's. Accordingly, as to the
events leading up to the Gentry crew's termination , I credit
Gentry and Hodge and discredit Montgomery to the extent
indicated 28
c. The Montgomery -Delmas conversation regarding the 1972
terminations
On an occasion between December 6 and December 12
(probably on December 6, 7, or 8) on the ABC Packaging
job 29 Montgomery told Delmas (according to Delmas'
credible testimony) "that one of the guys had called and
was asking for his job back and he said he couldn't hire
nobody back right now until he found out what happened
to the union business ." 30 Delmas never told any of the
other workers about this conversation , which the complaint
alleges as a violation of Section 8(a)(1).
d. The Company's manning situation after the 1972
terminations 31
During the week ending December 3, 1972, the Compa-
ny had on its payroll 19 individuals who worked a total of
899 hours ; during the week ending December 10, the
Company's employees worked a total of 861 hours.32
28 For the reasons indicated infra, sec. 11,E, 1, I regard Resp . Exh 11,
purporting to be a letter from Montgomery to company Assistant Treasurer
Jim Best , as having no probative weight in support of Montgomery's testi-
mony regarding the circumstances surrounding the Gentry crew's termina-
tion.
29 Delmas and Montgomery , and at some points Leen, credibly testified
that this conversation occurred on the ABC job after Tuesday, December 5;
and December 12 was the last day Delmas worked on this job. Delmas was
admittedly late for work on the day this conversation occurred; and his time
sheets for the week beginning December I I (the earliest in the record), while
they do not disclose his starting or quitting hours, show that he worked 8
hours on this project on both December I I and December 12. However, he
did work 40-1/2 hours during the preceding week.
30 Delmas testified that although Leen accompanied Montgomery to the
jobsite, nobody else was present during this conversation . Leen testified that
he was present the entire time when Montgomery was in Delmas' presence,
and that neither Montgomery nor Delmas said anything about a union.
Montgomery testified that he did not "think" there was any period that day
when he conversed with Delmas in Leen 's absence ; that he did not "recall"
telling Delmas that he did not know when the people laid off would come
back , that the Union thing had to be finished or settled first ; and that he did
not "think" Delmas mentioned the Union . When asked whether he men-
tioned the Union to Delmas, Montgomery replied , "I don't think so, No."
On the basis of the witnesses' demeanor, Montgomery's conceded uncer-
tainty about what was said , and Leen's and Montgomery's unreliability as
witnesses in other respects , I credit Delmas . Further, I note that
Montgomery's uncertainty about whether he openly attributed employees'
continued layoff to the unsettled "union thing" suggests that this motive
was at least in his mind; had it not been , he would have been sure that he
never tendered it.
31 To the extent that the findings under this heading rely on the
Company 's payroll ledgers , David Ronzone is included . See, however, infra,
sec. III, A,2.
947
Thereafter and until the week ending April 15, 1973 (2
weeks before the hearing), the maximum number of em-
ployees on the Company's payroll for any 1 week was 15
(on March 18), the average being 12.5, and the maximum
total hours worked was 677 (on February 18), the average
being about 558. Leen, who after December 18 had author-
ity to and did transfer employees between jobs in progress,
testified that "almost every day of the week," and specifi-
cally as early as the week ending January 7, he was short-
handed on the Gayfer's Mall project, which was completed
about April 22.
Between the December 1972 layoffs and the payroll peri-
od ending April 15, 1973, the Company hired 12 employees
(the first on January 11), 8 of them after the filing of the
charge herein. Of these, two (Mullins and Gary) were paid
$2.50 an hour, less than any of the alleged discriminatees;
three (Bostwick, Veenstra, and Dickson) were paid $3 an
hour, less than all but four of the alleged discriminatees;
one worked for 2 weeks; and one (Basham) worked for 3
weeks.33 Veenstra had previously worked for the Company
for about 2 months and been let go for high blood pressure.
Blades , who worked for the Company for about 7 weeks
and then quit to go back home to Cincinnati, had previous-
ly worked as a truckdriver in-Ohio, and was hired while on
his honeymoon by Leen because Blades ' new wife was a
good friend of Leen's daughter. Connolly, an experienced
sprinkler fitter hired by Leen on January 11 at $6 an hour,
and fitter Harvey, hired by Leen during the week ending
February I 1 at $5 an hour, were still with the Company at
the time of the May hearing.34 Dickson, a helper, had been
included in the December layoff while going to college,
was rehired during the week ending March 25 , and as late
as the week ending April 19 (the most recent payroll ledger
in the record) was still working for the Company but had
left college. None of the alleged discriminatees were ever
rehired by the Company.
2. The 1973 terminations (Delmas and Stafford)
John Delmas, Jr., was hired by the Company in late Feb-
ruary 1972 as a fitter at $2.75 an hour. In June or July 1972
his wages were increased to $4 an hour, his wage rate at the
time of his termination on January 27, 1973 . Delmas signed
a union card on November 2, 1972, at Vega' s instance.
Howard Stafford was hired by Montgomery on July 25,
1972, as a fitter at $3 an hour. By the week ending Decem-
ber 3, 1972 (the earliest for which the record contains a
payroll list), and until his termination, he was receiving $4
an hour. Vega visited Stafford at his house to solicit his
support for the Union, but did not have any union cards at
the time; and when Vega again approached Stafford a few
32 During this latter week, 24 individuals were on the Company's payroll
at some time during the week . However, this figure includes 5 added to the
payroll, and 10 laid off, during that week-a new loss of 5 as compared to
the previous week . While it is true that the other employee -complement
figures referred to herein likewise include "churn" as well as net changes,
there is no evidence of any subsequent hires or separations of comparable
size during any single subsequent week.
33 All persons named in this sentence except Basham were hired after the
filing of the charge herein.
34 Leen expressed justifiable satisfaction with the regularity of Harvey's
attendance
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days later, Stafford had left the Company's employ.35 Both
Stafford and Delmas had at one time exercised supervisory
authority, and the Company's witnesses conceded that the
quality of their work was very good.
As of January 27, 1973, Delmas and Stafford were as-
signed to the Gayfer's Mall job. When they came into work
that morning, Foreman Ed Cormican told them that then
Construction Superintendent Leen had called him and told
him to lay them off. When the employees asked why, Cor-
mican replied , ". . . he didn't give [Cormican] no reason,
he just said to lay [them] off."
3. The eligible voters
Under the terms of the Decision and Direction of Elec-
tion , issued on January 22, 1973, the eligible voters consist-
ed of all employees who were employed during the payroll
period ending January 21, 1973, excepting (inter alia) those
who quit or were discharged "for cause" prior to the elec-
tion. The 12 names on the January 21 payroll list included
the names of 7 individuals who were on the Company's
payroll for the week during which the Company received
the Union's representation petition-namely, Delmas and
Stafford (both of whom were discharged on January 27,
before the election), Lowery , Martinez, Irish (admittedly a
supervisor),36 Ronzone (who strenuously refused to sign a
union card), and Bender, who signed a union card on No-
vember 2 (infra, sec. III ,B). The five remaining individuals
listed on the critical January 21 payroll consisted of Ed
Cormican (a member of the Ohio contingent , who had
once been a member of the unit as a supervisor by the
Decision and Direction of Election), Van De Hatert (also a
member of the original Ohio contingent , and probably a
supervisor), Coyle and Hoff (also allegedly members of the
original Ohio contingent), and Connolly (also from Ohio,
and hired by Leen); prior to the election, Van De Hatert
quit and Hoff was discharged . As previously noted, all five
of the opened ballots opposed the Union.
D. The Company's Explanations for the Terminations
1. The 1972 terminations
a. The reason asserted for effecting a layoff
Montgomery testified that it was he alone who decided
on the 1972 layoffs . He further testified that these layoffs
were effected for "economic" reasons more specifically dis-
cussed below, and that he selected particular employees for
inclusion in the layoffs largely because they had inferior
skills.37 In connection with Montgomery's explanation for
the 1972 terminations , the Company offered into evidence
Respondent's Exhibit 11, whose first page reads in its en-
tirety as follows:
33 It appears that this break in employment was only temporary . Stafford
worked continuously for the Company from the week ending November 26,
1972, to his discharge in late January 1973.
36 As previously noted , owing to their job location Vega did not distribute
authorization cards to these three individuals.
37 His testimony to this effect , and the other reasons which he tendered
for their selection, are discussed in greater detail below.
INDEPENDENT SPRINKLER AND FIRE PROTECTION CO.
AUTOMATIC SPRINKLER SYSTEMS
POST OFFICE BOX 15596 - 4518 W . BUFFALO AVE.
TAMPA , FLORIDA 33614 38
Jim Best
Independent Sprinkler Co.
Jacksonville, Florida
Dear Jim:
Please be advised that the following list of employ-
ees have been laid off this week for reasons as stated
below.
As you know we had approximately 24 employees
on the active list at the beginning of this week. Our
original plans were to build adequate manpower to
staff both Winn Dixie in Charlotte and the Gayfers-
Clearwater, Mall Project 39 along with our usual work
load. As is apparent we were unsuccessful in bidding
both of these large projects.
We are now actively working the following crews as
indicated on the accompanying chart. As you may see,
we have laid off only our helpers and have recon-
structed six crews with our remaining personnel.
Each individual terminated has been personally ad-
vised by me of the reasons for his termination, and in
keeping with our policies, I have attempted to find
employment for these men where possible . At this
time I cannot foresee the need to rehire any of these
individuals at any time in the future.
And in fact, I anticipate further layoffs in the ap-
proaching weeks.
Should there be any questions regarding this matter
please contact me.
/s/ Charles W. Montgomery
Chuck Montgomery
This sheet contains neither a date nor the initials of the
secretary who allegedly typed it. Montgomery testified that
he dictated the first page of this document on December 5,
1972. Montgomery further testified that the second and
third page of Respondent's Exhibit 11, which are handwrit-
ten charts each bearing the date December 5, 1972, were
also prepared by him on that date, and that the entire
three-page exhibit was mailed on that date as a unit.
The third page of the exhibit contains , inter alia, the
heading "Listing of Employees Laid Off," followed by 10
names . This list includes the names of alleged discrimina-
tees Hancock, Parker, Wilcox, Vega, Van Nathan, and
Neptune, and of employee Dickson, not named in the com-
plaint, all seven of whom were laid off on the morning of
December 5. In addition, this 10-name list includes the
names of alleged discriminatee Mayfield and employees
Pace and Perez, the latter two not being named in the com-
plaint. Mayfield was laid off about November 9. The
names of employees Pace and Perez do not appear on or
after the earliest payroll , whose personnel are shown in the
3s This material constitutes a letterhead.
79 This latter job was a different job from the Gayfer's Mall job previously
referred to . The Gayfer' s Mall job actually performed by the Company was
a job at Gayfer 's Department Store in the Mall The other job was for the
rest of the Mall.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO. 949
record, for the week beginning November 20, 1972; and
Montgomery testified that they were laid off "several
weeks" prior to December 5. Montgomery also testified
that it was "towards the end of November-the last week
of November" when he first learned , from Sales Manager
Bouton, that the Company would not be getting the two
jobs referred to in Respondent 's Exhibit 11. Montgomery
also testified that "of course" Best had instructed him to
inform Best of all layoffs, about which Best needed to
know because , inter alia, he was in charge of making out
the employees' weekly paychecks.40
b. The reasons asserted for selecting those to be included in
the layoff
Montgomery testified that he selected particular employ-
ees to be included in the layoff because their skills were
inferior to those of employees who were retained . In con-
nection with this explanation , he testified , inter alia, and
Respondent 's Exhibit 11 states , that all the employees laid
off were helpers rather than fitters .41 Montgomery further
testified that the helper rate at that time was $2 .50 to $3.75
an hour . However , an employment form from the
Company's personnel records shows that on November 17,
1972, less than 3 weeks before the layoffs , Montgomery
hired Phillips as a "fitter" at $3.50 an hour . Further, anoth-
er employment form from the Company 's personnel rec-
ords shows that on July 25, 1972, Montgomery hired Staf-
ford as a "fitter" at $3.00 an hour . Accordingly , I do not
credit Montgomery 's testimony regarding the wage scale of
helpers as opposed to fitters . Rather, unless otherwise stat-
ed, in determining the laid-off employees' classification I
rely solely on the Company's personnel records (where in-
cluded in the instant record) setting forth the classification
in terms, on the employees ' own testimony , and on the
testimony of former Construction Superintendent Hogg.
On the basis of this evidence, I find that alleged 1972 dis-
criminatees Mayfield , Vega , Hancock , and Hodge were all
fitters.42
In connection with its contention regarding the alleged
discriminatees' supposedly inferior skills , the Company's
witnesses tendered testimony regarding the Bayou Manor,
Star Kitchens, ABC Packaging, and Gayfer 's Mall jobs.
The Company did not find out that the Bayou Manor job
was defective until March 1973, some 3 months after the
layoffs, when the "underground" (that is, the connection
between the system and its water supply) blew apart 43 The
only discriminatee identified by the Company's witnesses
as having worked on the Bayou Manor job was Gurchick.44
However , because Montgomery merely testified that "I be-
40 Other peculiarities in Reap . Exh. I I are discussed infra, sec. II,E,1.
41 A sprinkler installation firm whose employees are not represented by a
union customarily classifies skilled workers as "fitters" or "pipefitters" and
unskilled workers as "helpers ." Where the employees are union represented,
the corresponding classifications are "journeymen " and "apprentices "
42 Hogg testified that Neptune worked up from a helper to a fitter 's wage,
but Neptune testified that he remained at a helper 's wage with "promises."
43 While the "underground " work was in progress, an adjacent house was
run into by backhoe operator Fondan , who is not named in the complaint
and was fired for incompetence.
44 Former Construction Superintendent Hogg , a witness for the General
Counsel , testified that he believed Hancock worked on the Bayou Manor
lieve" Gurchick worked on that job; because he further
testified that Gurchick worked on that job's "under-
ground" portion (which later proved defective), although
the date which Montgomery attached to the completion of
that portion preceded the date when Gurchick began to
work for the Company; because the Company produced
neither Gurchick's time sheets (which show the job to
which the employee was assigned) nor any evidence except
Montgomery's oral testimony that Gurchick worked on
that job; and because Gurchick's demeanor impressed me
much more favorably than did Montgomery's, I credit
Gurchick's denial that he ever worked on the Bayou Man-
or job.
As to the Star Kitchens job, to which alleged discrimina-
tees Mayfield, Gurchick, Hancock, Vega, and Neptune
were assigned at various times , Montgomery testified that
the Company "lost money on that job and every other
job," and that the job required "constant trips to the job
site" by Montgomery and Sales Manager Bouton. Bouton
testified on the Company's behalf, but was not asked about
the Star Kitchens job. Montgomery testified that on the
Star Kitchens job a hydrant and a post indicator valve
were reversed; but he blamed this primarily on then Con-
struction Superintendent Hogg (who so far as the record
shows was not even reprimanded therefor) and testified
that problems "existed from the time we started the Com-
pany-notjust this particular group of men." Construction
Superintendent Leen testified that in October 1972, about
a month after the Star Kitchens job began, the riser was
tilted-a purely aesthetic defect. The record fails to show
whether this defect was ever corrected, whether the cus-
tomer ever complained about it, or whether the riser was
visible to any Star Kitchen visitors who might be adversely
impressed thereby; moreover, immediately after the De-
cember 5 layoff, Leen told Vega and Neptune that he did
not know why the men were being laid off. Montgomery
testified, "Had there been adequate leadership on that job,
I feel that it would have went fairly well." Employee Nep-
tune credibly testified without contradiction that while he
was working on thatjob, Montgomery told him "That the
work was going in pretty good and that [the crew] should
be receiving raises from this"-which, however, they did
not get.
As to the ABC Packaging job in Tarpon Springs to
which alleged discriminatees Wilcox and Parker were as-
signed at the time of their December 5 layoff, Montgomery
testified that several technical defects (which he did not
describe) had to be corrected on that job, that the crew did
not have adequate training for the work, and that he "was
trying to take care of that problem by providing adequate
supervision, which . . . is why [he] brought the crew from
Cincinnati down." Sales Manager Bouton testified that in
late September or early October, while the job was in prog-
ress , an official of the customer on the ABC job called him
"underground" but did not really know. There is no other evidence that
Hancock worked on this job In any event, Hancock was also terminated
before the Company learned about the defects in the Bayou Manor "under-
ground" and, moreover, Montgomery 's failure to identify him as an em-
ployee on the job seriously undermines any contention that Montgomery
was motivated in discharging Hancock by any supposed connection with
Bayou Manor.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the job and "pointed out holes in the ceiling tiles [in]
which there were no sprinklers; pointed out the fact that he
had been told the system had been tested and questioned
that because there were numerous openings in the pipes
where heads had not been installed, plugs were missing."
He further testified that the customer complained "rather
strenuously" that ceiling tiles were dirtied, ceiling grid had
been broken down and was scattered around the room,
and the system was sloppy and had a poor appearance. I
accept Bouton's testimony that the customer complained
about the aesthetics of the installation 45 and about missing
heads and plugs, and that failure eventually to install the
heads and plugs would prevent the system from function-
ing. However, Leen's testimony that the Company did not
get around to correcting the aesthetic defects until 5
months later, after the customer had complained again,
and the fact that the system could not have been tested
because the Company had not yet installed the "under-
ground" which connects the system with its water supply,
lead me to conclude that the customer's complaints about
the aesthetic defects were not "rather strenuous," that the
customer did not allege that he had been informed the
system had already been tested, and that, therefore, Bou-
ton exaggerated the seriousness of the problem in other
respects as well46 Leen testified that on a date he initially
placed as between December 5 and December 18, later as
between November 20 and December 5, and then as be-
tween December 5 and January 1, he visited the ABC job
with Montgomery, noticed an unusual installation feature
(whose correction involved "just a few minutes" work)
which Montgomery attributed to a need for a repair, and
also noted that some of the sprinkler heads, whose number
he could not recall, were tilted-a defect which prevents
proper sprinkler coverage and makes the installation
unacceptable to the underwriters. Notwithstanding
Montgomery's failure specifically to refer to the defects
described by Leen and Leen's unreliability as a witness in
other respects, I accept his testimony regarding this visit;
which I conclude (in accordance with his initial testimony)
occurred after the December 5 layoffs.41A tilted sprinkler
head can be straightened in a few seconds, but making
such an adjustment on a single sprinkler head may necessi-
tate adjustments on a number of other sprinkler heads
which were previously straight. While Leen testified that it
is "rare" for heads to be out of line in a job, he admitted
that he did not know how often in the industry the heads
are out of line before they are inspected. Leen further testi-
43 Bouton testified that at the time of the complaint, the installation of the
system in the office area was still in progress, and that ordinarily the ceiling
tile is not applied until after the sprinkler system had been installed and
tested. While Bouton did not specifically explain why the ceiling tile had
already been installed , I accept as an explanation his testimony that the
Company was trying to expedite installing the office portion of the piping so
the general contractor could pull off the job and collect his money . Howev-
er, the usual installation practice does indicate that the Company knew that
the presence of the tile had caused its employees unusual difficulties, and
that any damaged-tile problem was unlikely to recur.
46 Bouton testified that the rest of the pipe , including the missing pipe and
the missing heads , was installed in November or December, a month or
more after the customer 's complaint.
49 This was the occasion of the conversation summarized supra, sec. 11,
C, l,c.
fied that if a head is not aligned right, the normal practice
followed by the Company and other firms is to refrain
from straightening it unless it fails to pass inspection. In
view of this testimony, I do not credit either his further
testimony that the men he worked with had "always" had
heads in line, or that before the ABC job was inspected
Delmas straightened the heads on that job (Leen did not
know how long this took).
As to the Gayfer's Mall job, to which Vega, Neptune,
Hancock, and Van Nathan were assigned , Montgomery
testified that the crew "weren't getting the job done. They
didn't have proper leadership, and we had received com-
plaints daily from the management at the job . . . we were
advised in no uncertain terms that if we didn't do some-
thing about our manpower situation out there, we were
going to be replaced on the job. They were going to take
our contract back for incompetence." Montgomery further
testified that the Gayfer's Mall job "just simply was not
moving at the proper pace . . . I wouldn't say that the
quality was that bad based on their experience . . . the
men just simply . . . did not have enough-they did not
have the background; they didn't have the experience to do
the kind of work that we were asking them to do." Sales
Manager Bouton testified to "almost daily" complaints
from the construction superintendent and the project man-
ager about the Company's engineering on the job and that
the employees were working in a disorganized fashion and
were apparently unable "to get any work performed with
their upcoming deadline" some 5 months away, but he as-
cribed these complaints to the latter part of the first week
the Company was on the project-that is, about 3 working
days before the layoffs. Hancock credibly testified without
contradiction that a few days before his December 5 layoff,
Montgomery told him that the Company was about 3 days
ahead of schedule on the Gayfer's Mall job, and that
Montgomery said nothing further about the progress of the
job until laying him off, when Montgomery said that the
Company was a few days behind. While I conclude that
the Company received some complaints from the general
contractor about this job prior to December 5, I believe
that they were less frequent than testified to by Montgom-
ery (who testified that they were made "daily"), that they
were much less forceful than testified to by these witnesses
and did not extend to a threat to replace the Company on
the job, that (as Bouton admitted) the Company's own de-
fective engineering played a substantial part in the com-
plaints, and that (as Montgomery admitted) the Company
knew the employees' inefficient work was to a substantial
extent due to its own failure to supply a foreman during
much of the period after the first 2 working days, when
Montgomery served as foreman. In so finding, I rely on the
fact, established by Hancock's testimony, that during most
of the 8 working days on this job prior to the layoffs the
Company could not have been behind on the job; the un-
likelihood that the general contractor would threaten to
cancel a subcontract for a job which was to last for 6
months, after the subcontractor had been on the job for
less than 8 working days and had been 3 days ahead of
schedule before falling behind; Montgomery' s manifest ex-
aggeration (as established by both Bouton's and Hancock's
testimony) about the period of time over which these com-
INDEPENDENT SPRINKLER & FIRE PROTECTION CO. 951
plaints extended; and Montgomery's and Bouton's de-
meanor.
c. The reasons asserted for retaining certain individuals
Fourteen people who worked for the Company during
the payroll week ending December 10 survived the layoffs.
Montgomery testified that he retained Delmas and Staf-
ford on the payroll because of their superior skills . Because
both were paid more than any of the laid-off employees
and had exercised supervisory authority, I credit
Montgomery 's testimony in this respect . For similar rea-
sons, I credit Montgomery's testimony that he retained
Irish because of his superior skills , although I do not find
that this was Montgomery 's sole motive . As to the "Ohio
contingent" other than Hoff , I find as follows:48 In late
October 1972, Leen told Montgomery, who since the pre-
ceding July had been requesting him to leave his then job
in Cincinnati to become the Company's construction su-
perintendent, that he would do so only if he could bring
some "professional help" from Cincinnati to Florida.
When Montgomery agreed, Leen and Montgomery in-
duced Ed Cormican, who Leen knew had 23 years' experi-
ence in the trade , to agree to leave his then job in Cincin-
nati to join the Company. Montgomery thereafter agreed
to "take on anybody they brought down with them." Ed
Cormican thereupon induced Coyle and Van De Hatert
(each of whom had 10 years of experience in the trade),
and also Ed's brother Harry, to join the Company.49 On
November 20, the Cormicans, Coyle, and Van De Hatert
assembled in Ed Cormican's residence, and Montgomery
hired all of them by telephone.50
Coyle and Van De Hatert began to work for the Compa-
ny on December 4, and Ed and Harry Cormican on De-
cember 5, at hourly pay rates of $5.50, $6, $8 and $4, re-
spectively. On the basis of these pay rates, Montgomery's
explanations to the other employees about why the Ohio
group had been hired, and my findings in the preceding
paragraph, I credit Montgomery's testimony that he re-
tained these four newly employed individuals because he
believed their skills were superior to those of the employees
laid off-although this may not have been the only reason
as to all of them.51
However , I find that Hoff was not hired under the same
48 These findings are based mostly on Montgomery's and Leen's testimo-
ny, which I credit to this extent.
9 I base the inference that Ed Cormican selected these three on the Cor-
micans' kinship and on Leen 's testimony that Ed Cormican, Coyle, and Van
De Hatert were all working for the same firm (not the same as Leen's last
Ohio employer) when the Company hired them. I note, however, that al-
though Ed Cormican was still in the Company's employ as a supervisor at
the time of the hearing, the Company did not call him as a witness or
explain his absence . Leen testified that he himself did not participate in the
arrangements for hiring Harry Cormican, Coyle, and Van De Hatert. See
also infra, In. 51.
501 accept Montgomery 's testimony that the Company paid the travel
expenses of Leen and Ed Cormican but not the others. In view of the
Company's undertaking to take on whomever these two brought with them,
I believe that in telling Vega that the Company had "paid a thousand dol-
lars apiece to bring [the Ohio) men down," Montgomery was describing
what Leen 's and Ed Cormican 's travel expenses had in effect been paid for
so far as the Company was concerned.
31 1 note , however , that Harry Cormican's hourly pay of $4-although 50
cents more than the highest paid alleged 1972 discriminatee-was $1.50 less
circumstances as the other four Ohio employees. Thus, al-
though Montgomery testified that Leen was "instrumen-
tal" in hiring Hoff, Leen testified that he did not know
Hoff personally or how he had been included in this group
and that his presence was due to Montgomery. Further, I
do not credit Montgomery's testimony that in effecting the
December 5 and 9 layoffs he retained Hoff, whose first day
of employment with the Company was December 4, be-
cause Van De Hatert said he and Hoff worked well togeth-
er. In so finding, I rely on (1) the Company's concealment
of the circumstances of Hoff's hire, together with the
Company's unexplained failure to produce as a witness
either its incumbent supervisor, Ed Cormican, or its incum-
bent employee, Coyle, both of whom according to Mont-
gomery were with Hoff when all three were hired by tele-
phone; (2) the absence of any independent probative
evidence regarding a prior connection between Van De
Hatert and Hoff; (3) Montgomery's concession that Hoff
was a helper with only 6 months' experience in the trade;
three of the alleged December 1972 discriminatees were
fitters; (4) Hoff's pay rate of $3 an hour (far less than that
which Montgomery attached to the forthcoming Ohio con-
tingent in his November conversation with Neptune, and,
indeed, less that that paid to three of the alleged December
discriminatees), which remained unchanged through his
last week of employment with the Company;52 and (5)
Montgomery's demeanor.
Nor do I credit Montgomery's testimony that he re-
tained employee Phillips on the Gayfer's Mall project (al-
though Phillips had no experience in the sprinkler trade
and had started to work the week before the December 5
layoffs) because during the week preceding the layoffs the
Company had allegedly lent him "close to $200" (requested
for reasons not specified by Montgomery's testimony) and
wanted to be repaid. Although it is probable that the Com-
pany would have required Phillips to sign an acknowledg-
ment of such a debt, the Company presented neither such a
document nor an explanation of its absence. Indeed, the
Company did not produce any written records reflecting
the alleged loan. Further, it seems unlikely that the Compa-
ny would have regarded Phillips as a good risk for a loan of
this size: his employment application stated that he was a
divorced man with three dependents who lived in a motel
and had previously worked for three firms in South Caroli-
na; he had started work less than a week earlier and, so far
as the record shows, had never worked for the Company
before; and his gross pay for a 40-hour week was $140. 3
Moreover, when Vega asked why Phillips was being re-
tained, Montgomery did not mention any loan, but instead
than the next lowest paid member of this four-man Ohio group and $1 less
that the minimum rate to which Montgomery referred in describing their
forthcoming appearance to Neptune. Moreover , Resp. Exh. 11, allegedly
prepared by Montgomery on December 5 (see infra, sec. II,E,I) describes
Harry Cormican as a helper. Although the Company's first brief asserts that
these four individuals and Hoff were retained because they had been up-
rooted from their homes, Montgomery did not so testify.
52 Before the Company agreed to comply with the Union 's subpoena of
some of the Company's payroll ledgers, Montgomery testified that Hoff was
making $4 or $4.50 per hour The Company thereafter offered into evidence
payroll ledgers for periods subsequent to the periods for which its ledgers
were subpoenaed.
53 In fact, the week after the layoffs he quit the Company's employ; and
Montgomery testified that Phillips never repaid any of the money.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implicitly included Phillips in the explanation regarding
the retention of the Ohio contingent, of which Phillips is
not now claimed to be a part. In view of these consider-
ations and Montgomery 's demeanor , I conclude that the
Company never made such a loan.
I also disbelieve Montgomery's explanation for retaining
employee Wilson. Montgomery testified that "several
weeks" before December 5 (Wilson started work on No-
vember 13), Montgomery told Foreman Irish to lay off
Wilson, Perez, and Pace on December 5. Still according to
Montgomery, Irish replied that he could not lay them off at
that time because he needed them , whereupon Montgom-
ery told him "he'd simply have to lay them off at the end of
the job," which was the Pompano Beach job, and Irish
"said that he would not, or he could not, and I said well
you work up until such a time as you think you need
them." I cannot credit this testimony, in view of (1) the
absence of Perez' and Pace's names from the payroll ledger
for the week beginning November 20 and from all subse-
quent payrolls; (2) the presence of Wilson's name on every
such payroll through that ending January 7, 1973, although
the Pompano Beach job on which he worked during the
week of the December 5 layoffs was completed on Decem-
ber 7 (nor does the record show whether his eventual termi-
nation was involuntary); (3) the unlikelihood that Irish
would be so determined to retain Wilson (or that Mont-
gomery would permit him to do so) in view of
Montgomery's admission that Wilson "had no value to the
company"; (4) the Company's unexplained failure to call
Irish as a witness , although he was still in the Company's
employ at the time of the hearing; and (5) Montgomery's
demeanor.
In addition to discrediting Montgomery's explanation of
why Wilson was not laid off on December 5, I discredit
Montgomery's explanation of why Irish's crew, of which
Wilson was a member until December 23,54 was never laid
off. Montgomery testified that at the time of the December
5 layoffs, the Company was training a special "under-
ground crew" which at one point he described as consisting
only of Irish, Lowery, and Martinez but at another point as
also including Wilson (whom he elsewhere described as
having "no value to the company"). Montgomery went on
to testify that he nonetheless intended to lay off Lowery
and Martinez at the end of the Pompano Beach job if he
could find nothing else for them to do; that after the De-
cember 7 completion of the Pompano Beach job, he trans-
ferred the entire crew (supra, fn. 54) to the Gulf and West-
ern job; and that on December 11 he transferred the entire
crew to the Palatka job (supra, fn. 54) because Gentry,
foreman of the crew on that job, quit the Palatka job on
December 9 and procured the absence of the rest of his
crew by telling them on that day, contrary to
34 While certain portions of Montgomery's testimony suggest that Wilson
was not a member of Irish 's crew after December 7, when the Pompano
Beach job was completed , I find otherwise in view of Montgomery 's specific
testimony, on direct examination as a Company witness , that Wilson was
transferred to the Palatka job with the other crew members on December
11, and the fact that Wilson , Lowery, and Martinez all worked a 40-hour
week during the week ending December 10. Accordingly , I infer that on
December 8 Wilson went with the other crew members to the Gulf and
Western job.
Montgomery's instructions, that they were laid off. For the
reasons summarized, supra, sec. II, C,l,b,(4), I have already
discredited Montgomery's testimony regarding his instruc-
tions to Gentry and have found, instead, that Montgomery
told Gentry to lay his crew off on December 9. Further, I
credit former Construction Superintendent Hogg's testimo-
ny that laying the "underground" is the simplest part of
installing a sprinkler system, and that a special crew for
that purpose is unheard of in the industry; 55 as well as
Hogg's and Gentry's testimony that the "underground"
usually constitutes only a small part of the job. Moreover,
the alleged "underground" crew was broken up after their
December 23 completion of the Palatka job.56
Montgomery gave no reason for retaining employee
Ronzone, who had strenuously refused to sign a union
card 57 Nor did Montgomery give any reason for retaining
employee Bender, who with Wilson was the Company's
lowest paid employee, and who (according to Delmas'
credible testimony) was "just a helper" who "actually ...
didn't do much of nothing." Bender signed a card (infra,
sec. III, B).
d. The alleged aftermath of the terminations
Montgomery testified that the inside work on the Bayou
Manor job after December 5 was "far superior" to the in-
side work performed previously. He further testified that
the Lakeland job was "the same construction" as, although
"just a little larger" than, the Star Kitchens job, and "there
were no errors. In fact, it has been approved and we have
been paid for it [and] we did make money on it." In addi-
tion, Bouton testified that as of the beginning of 1973 "we
have eliminated most of the problems. We have had few, if
any, lately." As previously found, there is no probative evi-
dence that any of the alleged 1972 discriminatees worked
on the Bayou Manor job. Further, there is no evidence as
to whether the employees who survived the 1972 layoffs
had worked (prior to the lafoffs) on the Bayou Manor job,
the Star Kitchens job, or other jobs where the alleged dis-
criminatees worked; indeed, the record affirmatively shows
that prior to the December 1972 layoffs employee Bender
worked on the ABC Packaging job, and Montgomery testi-
fied that prior to these layoffs retained employee Ronzone
worked on the Gayfer's Mall job.58 Moreover, Montgom-
ery conceded that problems similar to those on the Star
Kitchens job "existed from the time we started the Compa-
ss In crediting Hogg, I note that the Company regularly assigned employ-
ees (including wholly inexperienced employees) to do both "underground"
and other sprinkler work. Indeed, Montgomery's testimony shows that dur-
ing the week of the layoffs Lowery, Martinez, and the admittedly valueless
Wilson were doing both "underground" and other work on the Pompano
Beach fob,
w Resp. Exh. I 1 states that Montgomery intended to "lay [Lowery, Marti-
nez, and Wilson] off Friday [December 8] if we cannot find an [under-
ground) job for them." For the reasons stated infra, sec. II, E, 1, this exhibit
has no probative weight in support of the Company's case.
37 As found, infra, sec. III , A,2, Ronzone had in fact performed work
functions different from those performed by the laid-off employees . Howev-
er, Montgomery testified otherwise, and the record suggests that after the
layoffs Ronzone started to perform outside installation work.
58 While Montgomery was in error (infra, fn. 96), his belief that Ronzone
worked on this job is relevant to the veracity of his testimony that he select-
ed some of the alleged discriminatees for layoff because they worked on this
job.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO. 953
ny-not just this particular group of men"; while Bouton
admitted, in effect , that until 1973 the Company had prob-
lems on all or almost all its jobs similar to its alleged prob-
lems on the jobs where the alleged 1972 discriminatees as-
sertedly worked. Montgomery attributed many of the
Company's 1972 difficulties to inadequate supervision, a
problem which the December 4 acquisition of the Ohio
contingent was allegedly intended to correct; and Bouton
admitted that some of the 1972 problems were due to engi-
neering errors . Neither Montgomery nor Bouton was asked
about the extent, if any, that the 1973 improvements were
due to changes in the identity of the rank-and-file workers.
2. Delmas and Stafford
Construction Superintendent Leen testified that it was
he who decided to discharge Delmas and Stafford, and that
he made this decision because from time to time they came
late, left early, or failed to show up at all.59 According to
Leen , these employees' alleged unreliability was a particu-
larly serious problem on the Gayfer 's Mall job , where they
were working when discharged , because time and manpow-
er problems on that job caused Leen to want Delmas and
Stafford to work 7 days a week 60 Leen described one occa-
sion in mid-December 1972 when he was on the ABC job-
site and Delmas and Stafford came to work late '61 but testi-
fied that he had no other personal knowledge about these
matters and that he relied on some of the timesheets of
these two employees and on oral reports allegedly made to
him by the job construction superintendents and by Van
De Hatert and Ed Cormican (supervisors on the Bayou
Manor and Gayfer 's Mall jobs , respectively). Although Ed
Cormican was in the Company's employ at the time of the
hearing, he did not testify, nor was his absence explained.
Nor did any of the other individuals who allegedly made
these reports testify at the hearing. The purported time-
sheets on which Leen assertedly based his termination de-
cision merely show the number of hours the employee
worked each day, without revealing the employee 's starting
or quitting hours.
In deciding to discharge Delmas, Leen assertedly relied
on his purported timesheets for 4 weeks (the weeks ending
December 15, 1972, and January 14, 21, and 28, 1973).
These purported timesheets disclose 2 days on which Del-
mas worked less than 8 hours and , therefore, necessarily
came late and/or left early-namely , one 6-1 /2-hour day
on the Gayfer's Mall job during the week ending January
21, 1973 (Resp . Exh. 4), and one 7-1/2-hour day on that
same job during the week ending January 28 , 1973, his last
week (Resp . Exh. 5). In deciding to discharge Stafford,
Leen assertedly relied on Stafford's purported timesheets
for 5 weeks (the same weeks as for Delmas , plus the week
ending December 24, 1972). These purported timesheets
disclose a total of 1 day when Stafford worked less than 8
hours-namely 1 4-hour day on the Bayou Manor job dur-
ing the week ending January 21, 1973 (Resp. Exh. 9). Al-
though Leen testified that all these purported timesheets
were prepared and submitted by the foremen and ap-
proved by Leen in the ordinary course of business, I reject
this testimony in connection with these employees' pur-
ported timesheets for the week ending January 21, 1973
(constituting Resp. Exh. 4 and 9), which documents pur-
port to establish one of Delmas' two alleged short work
days and Stafford's sole short work day. Thus, although
Delmas credibly testified that he had always signed his
own timesheets,62 his signature does not appear on either of
the documents constituting his purported timesheets for
the week ending January 21. Foreman Ed Cormican,
whose purported signature appears on the purported Janu-
ary 21 timesheet stating that Delmas worked only 6-1/2
hours I day on the Gayfer's Mall job, was still in the
Company's employ at the time of the hearing but was not
called as a witness, although the timesheet is filled in by the
foreman. The other one of Delmas' purported timesheets
for the week ending January 21 (Resp. Exh. 4) is initialed
by Leen, misspells Delmas' surname in the same manner as
Leen misspelled it on Respondent's Exhibit 7, and is filled
out in its entirety by hand lettering similar to Leen's on
Respondent's Exhibit 7 (including the name of "Tom Van
De Hatert" as foreman; other purported timesheets bear
his purported signature in longhand as "T. Van De Ha-
tert"). Furthermore, the purported timesheet (Resp. Exh. 9)
setting forth Stafford's lone alleged short work day, which
does not bear Stafford's purported signature, contains a
purported signature by Foreman Van De Hatert in letter-
ing markedly similar to that on Respondent's Exhibit 4.
As to the weeks covered by the purported timesheets, the
Company's payroll ledgers (whose authenticity is unchal-
lenged) show that Delmas worked 32 hours during the
week ending December 17, 1972; 24 hours during the week
ending January 14, 1973; 32-1/2 hours during the week
ending January 21; and 24 hours during the week ending
January 28, his last week. Still as to the weeks covered by
the purported timesheets, the Company's payroll ledgers
show that Stafford worked 32 hours during the week end-
ing December 17, 1972; 24 hours during the week ending
December 24; 36 hours during the week ending January
14; 32 hours during the week ending January 21, 1973, and
34 hours during the week ending January 28, his last
week 63 Apart from describing a day, whose date Delmas
59 As shown infra, Leen also testified about allegations that Delmas and
Stafford came to work early and left late . Leen's testimony fails to make
clear whether he was tendering these alleged practices as a reason for the
discharges.
60 Leen conceded that it was not easy to get men to work 7 days a week or
on weekends , testimony confirmed by the Company's payroll ledgers (infra,
fn. 70).
61 This was the occasion of the conversation described supra, sec. II, C, l,c.
Stafford 's tardiness on this occasion is unexplained in the record. Delmas
was late because he spent the night in jail . The Company makes no conten-
tion that Delmas was terminated in whole or in part because he had been
jailed , or because of the alleged offense for which he was jailed.
62 In view of this testimony and the parties' stipulation that Delmas' pur-
ported signature on his purported timesheet for the week ending January 14,
1973 (Resp. Exh. 3), was different from his ordinary signature, I also con-
clude that this exhibit was not shown to be authentic.
Delmas' testimony on rebuttal did not question the authenticity of the
document identified as his timesheet for his last week ( Resp . Exh. 5). While
this timesheet does not bear his signature , I do not believe that this omission
for a payroll week during which he was discharged reflects on his testimony
regarding his usual practice.
3 The purported timesheets relied on by Leen encompass all the weeks
where the record shows Delmas worked less than 40 hours , but do not cover
Continued
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not recall, when he advised Leen that he could not
work because his car "tore up," Delmas failed to tender
any credible explanation for his absences as shown by the
payroll ledgers and the purported timesheets64 The record
contains no explanation for Stafford's absences.
While the Company did not offer into evidence the time-
sheets for any employees other than Delmas and Stafford,
the Company's weekly payroll ledgers (which disclose total
hours only) show that at the time the Company discharged
Delmas and Stafford, it retained employee Martinez on its
payroll even though he worked 24 hours the week ending
January 7, 34 hours the week ending January 14, and 32
hours the week ending January 21. Indeed, Martinez ap-
pears on the most recent payroll sheet in the record, for the
week ending April 15, 1973, even though he worked 37
hours the week ending February 4, 34 hours the week end-
ing March 11, 30 hours the week ending April 1, and 27
hours the week ending April 15 65 The record fails to con-
tain any explanation for Martinez' absences . During Leen's
cross-examination by union counsel, the following ex-
change occurred:
Q. Did you fire that gentleman , Mr. Martinez, for
not working but 32 hours [during the week ending
January 21, 1972?]
A. He is a helper, sir. A foreman is a leader.
Q. Oh, I see. In other words, helpers don't have to
come to work. They can work 8 hours, or 16 hours a
week and not show up. Is that all right?
A. When a foreman is on the job, he is the leader.
He is the one that sets up the work for the day.
Q. Well I thought Mr. Van De Hatert was the fore-
man for the Bayou Manor job with Delmas and Staf-
ford working on it.
A. He was. Mr. Delmas was a foreman on his job
when he come over, and he should have the same re-
spect as one foreman to another foreman.
Further, Coyle, who had served as a foreman and was still
in the Company's employ at the time of the initial hearing,
took off the entire week ending February 4 to visit his
family out of town and, in addition, worked only 32 hours
the week ending March 25, 36 hours the week ending April
1, 30 hours the week ending April 8, and 12 hours the week
ending April 19. Leen tendered no explanation for retain-
ing Coyle.
Leen testified that on a date he did not specify, while
Delmas and Stafford were working on the Bayou Manor
job under Foreman Van De Hatert, the construction super-
intendent and Van De Hatert reported that Stafford and
Stafford 's workweeks ending December 10 (when Stafford worked 33.5
hours) or December 31, Christmas week (when he worked 32 hours).
64 Delmas testified that about the week of January 14 (when Resp . Exh. 3,
his purported timesheet, shows he worked only 24 hours on the Bayou Man-
or job) he worked 2 or 3 days at a job in Fellsmere , and he suggested that
the Company had failed to provide his timesheet for that week on the Fells-
mere job . However , the Company's payroll ledger shows that Delmas
worked and was paid for only 24 hours that week ; and Delmas conceded
that he had never complained to the Company that he had not been paid for
all the hours he worked . Stafford 's timesheets for the week ending Decem-
ber 24, 1972, indicate that Delmas worked on the Fellsmere job that week
65 Leen testified that he discharged Martinez on April 30 because he re-
fused to go out of town.
Delmas were coming in late and leaving late; that Van De
Hatert further reported that they were coming in late and
leaving early; that Leen asked them not to come in early or
late and not to leave early or late; and that they said they
were not coming in late or leaving early but if they were
doing this they would try to change. Delmas testified that
he and Stafford came late to the Bayou Manor job "a cou-
ple of times" and left that job early "a couple of times";
that on one occasion, whose date he did not specify, Leen
told them that the construction superintendent had "said
something about it" and they should "quit being late"; and
that they said "okay." Because Delmas' version of the con-
versation seems more probable, and because Delmas' de-
meanor impressed me more favorably than Leen's, I credit
Delmas in this respect. Further, because Delmas' testimony
regarding his and Stafford's short days on the Bayou Man-
or job is not directly contradicted and is consistent with
their purported timesheets ,66 and in view of Delmas' de-
meanor, I credit his testimony in this respect. In addition,
because of the inconsistent nature of the complaints to
which Leen testified, the improbability that these employ-
ees were working late, Delmas' credited testimony regard-
ing his and Stafford's short days and regarding the reasons
given by Leen for their reprimand, and Leen's demeanor, I
discredit Leen's uncorroborated testimony regarding the
complaints made to him, except that I find the Bayou
Manor construction superintendent did complain to Leen
on one occasion about their tardiness.
As to the events immediately preceding Delmas' and
Stafford's discharge, Leen testified as follows: On Thurs-
day, January 25, Leen brought the employees' paychecks
to the Gayfer's Mall job, to which Delmas and Stafford
had been assigned, and then had drinks at a nearby bar
with Delmas, Stafford, Coyle, Mike Connolly, and Ed Cor-
mican. According to Leen, he told "them" how important
the job was and that "this taking off like they were, it had
to be stopped." Still according to Leen, he then left before
Delmas and Stafford had a chance to reply. Leen went on
to testify that Foreman Ed Cormican told him that Cormi-
can had asked Delmas and Stafford whether they would
show up the following day, Friday, and that they promised
to do so. Leen further testified that on Friday morning the
Gayfer's Mall construction superintendent telephoned that
some of the Company's employees were not there, and that
when Leen then got hold of Cormican, the latter reported
that Delmas and Stafford were absent.67 Still according to
Leen, on the following day, Saturday, January 27, Cormi-
can telephoned about an hour to an hour and a half after
the regular starting time that Delmas and Stafford had not
yet shown up. Leen went on to testify that at this point he
instructed Cormican that when these two employees did
show up, to tell them that they were laid off because they
were unreliable. Leen further testified that Cormican sub-
sequently reported that Delmas and Stafford had shown up
that day about 2-1/2 hours late,68 and that Cormican had
66 Indeed , the purported Delmas timesheets on which Leen allegedly re-
lied in deciding to discharge him fail to show any day of less than 8 hours on
the Bayou Manor job.
67 Delmas admitted that he did not come to work that day. The timesheets
of both men for that day state that they were absent that day.
68 Delmas admitted that he was late on the job that morning.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
laid them off; Leen admitted that in describing the termi-
nation interview Cormican did not assert that he had given
the employees any reason therefor . Because Delmas' de-
meanor impressed me more favorably than did Leen's, I
discredit Leen's testimony regarding the conversation at
the bar, and credit Delmas ' testimony that the Bayou Man-
or incident was the only occasion on which he was cau-
tioned about, warned about, or reprimanded for his irregu-
lar attendance . Further , in view of Delmas' uncontradicted
and credited testimony that Ed Cormican told Delmas and
Stafford that Leen had directed their layoff without giving
him a reason (testimony partly corroborated by Leen's ver-
sion of Cormican's report to him about the termination)
and Cormican 's failure to testify , I discredit Leen's testi-
mony that he told Cormican to tell them that they were
laid off because they were unreliable . Also, in view of
Cormican's failure to testify and Leen's demeanor, I discre-
dit Leen's testimony that about January 17 he told Cormi-
can that they would have to do something about Delmas
and Stafford.
Leen testified that in his own mind he "really didn't in-
tend to lay [Delmas and Stafford] off for good but I never
heard from them again , and there's no telephones-how
can you reach people?" 69 Leen admitted that the
Company's records contained addresses for both these em-
ployees , that these addresses may have been current, that
they were both "very good" workers, and that he would
have rehired them if needed, "If I could have talked to
them . . . but I never heard from either one of them."
Leen testified that Ronzone and Bender worked at the
Gayfer's Mall job on the Saturday that Delmas and Staf-
ford were discharged. That week's payroll ledger shows
that Ronzone worked 34 hours and Bender 40 hours. Leen
also testified , but was vague as to dates , that Irish, Lowery,
Martinez, Hoff, and Van De Hatert worked weekends on
the Gayfer's Mall job. All of this latter group frequently
worked 40 hours or less a week 70 The week ending Febru-
ary 11, Leen hired Murrell Harvey as a fitter at $5 an hour,
$ 1 an hour more than Delmas and Stafford had received.
Leen testified that he "hired [Harvey] to go to work on [the
Gayfer's Mall] job because he's there every day of the
week." 71 Leen was otherwise unable to remember with any
degree of specificity who worked on the Gayfer's Mall job
after Delmas' and Stafford 's discharge 72 Leen testified in
substance that he tried to shift men around to get the job
finished. Leen further testified that he was shorthanded on
the job.
E. Conclusions as to Alleged 8(a)(1) and (3) Violations
1. The alleged discrimination
The credited evidence shows that on various occasions
between mid-1972 and mid-September 1972, Chief Engi-
69 The Company's files included a telephone number for Stafford. The
record fails to show whether Delmas had a telephone.
70 About 40 percent of the workweeks worked by these five individuals
were 40 hours or less . If the period is limited to weeks worked after Delmas'
and Stafford's discharge , the figure amounts to 34 percent.
955
neer Montgomery advised the Company's then construc-
tion superintendent that the Company "wouldn't go union;
they would close the doors first," and instructed him to
find a pretext to "get rid of" anyone who "said anything
about the Union . . . get the thing before it started." In
late October 1972, Montgomery learned that Vega had re-
ceived an envelope from the Union, and ascertained by
interrogating Vega that he was "going union." While the
envelope did not in fact contain union authorization cards,
which Vega did not obtain until several days later, I infer
that the Union envelope and this conversation led Mont-
gomery to conclude that Vega was already distributing au-
thorization cards. Within a few days thereafter, and even
before Mayfield had signed a union card, Montgomery
evinced suspicion of Mayfield's union activity by asking
whether he had heard anything about a union. Two days
after Mayfield signed a card, Montgomery laid him off on
the ground that there was no work. Thereafter, and until
Mayfield obtained a job elsewhere, Montgomery repeated-
ly refused to take him back on the ground that nothing was
going on, while during this same period Montgomery hired
two new employees whose abilities were inferior to
Mayfield's.
After the Company received the Union' s representation
petition, Montgomery evinced to Foreman Gentry a desire
to know who started and led union meetings and when
they were to be held, reiterated that the Company could
not operate if it went union, and-after Gentry had indi-
cated opposition to the Union-said he would try to keep
Gentry with the Company. Thereafter, and during the pay-
roll week following the Company's receipt of the Union's
representation petition, the Company laid off seven more
of the alleged discriminatees (plus two employees not
named in the complaint); all but one of the alleged dis-
criminatees had signed union cards at Vega's instance. The
14 who were retained, many of whom were transferred to
the jobs where the alleged discriminatees had been working
when laid off, included 5 who could not have been solicited
by Vega because they had just come from Ohio (the 2 Cor-
micans , Coyle, Van De Hatert, and Hoff), 3 who were not
solicited by Vega because their place of work was removed
from the other jobsites (Irish, Lowery, and Martinez), and
2 new employees (Wilson-whom Vega had never met-
and Phillips). On the day (December 5) when most of the
layoffs were effected, Montgomery told card signer Gur-
chick, who had been out with appendicitis, that he was
being put on the officially laid-off list, even though as late
as December 4 Montgomery had indicated to Gurchick
that he could probably resume work on December 5. When
Hancock asked Montgomery about another job, Mont-
gomery told him to call the next day and then asked if he
knew that Vega was going into the Union-in effect (be-
cause Montgomery already knew that Vega was a union
activist) an inquiry about whether Hancock had been solic-
ited to join. When Hancock admitted that he favored the
Union but nonetheless called the next day about a job,
71 Harvey in fact worked at least 40 hours every week between his first
week of employment and the last week for which the record contains the
Company's payroll ledger (April 15, 1973). Leen did not explain how he
knew about Harvey's regular attendance when hiring him
72 The Company did not produce the employees ' individual timesheets,
which specify the fobs to which they are assigned.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery falsely told him that the Company had lost
the Bayou Manor job; then asked Hancock , in effect,
whether he and Vega still favored the Union; and, further,
asked if he knew who else favored the Union. Hancock
admitted to Montgomery that he was a union adherent,
and neither he nor any of the other alleged discriminatees
was ever rehired, although the Company subsequently
hired a number of employees less skilled than they.
Between the date of the layoffs and December 12, Mont-
gomery said to Delmas "that one of the guys had called
and was asking for his job back and he said he couldn't
hire nobody back right now until he found out what hap-
pened to the union business ." Thereafter, and prior to the
election , the Company discharged two more employees
(both solicited by Vega , and one of whom had signed a
card) who had been working for it when the representation
petition was filed . As a consequence , as of the date of Del-
mas' and Stafford 's discharge, the eligible electorate apart
from alleged discriminatees included only two employees
(one of whom had refused to sign a union card) whom
Vega had been able to solicit for the Union; the rest he had
been unable to reach because they had come from Ohio,
had been working out of town , or were hired after his dis-
charge . The five opened ballots all opposed the Union.
Particularly in view of Montgomery 's statement that "he
couldn't hire nobody back right now until he found out
what happened to the union business," such evidence
points to the conclusion that the Company laid off employ-
ees Mayfield, Vega, Neptune, Hancock, Van Nathan, Gur-
chick, Wilcox, Parker, and Hodge, and discharged employ-
ees Delmas and Stafford, because it knew that the Union's
support was concentrated in their ranks and wanted to
bring about the Union's defeat in the election. N.L.R.B. v.
Tidelands Marine Service, Inc., 338 F.2d 44, 47-48 (C.A. 5,
1964); N.L.R.B. v. Ferguson and E. F. Van Seggern d/b/a
Shovel Supply Company, 257 F .2d 88 , 92 (C.A. 5, 1958).
Further, I conclude that the Company has strengthened
the General Counsel 's case by tendering , as explanations
for the terminations , reasons which fail to withstand scruti-
ny. N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 279
(C.A. 5, 1962). Thus, Respondent's Exhibit 11, allegedly a
letter dictated and sent on December 5, states that May-
field and others "have been laid off this week for reasons
as stated below"-namely, the Company's unexpected fail-
ure to obtain two specified jobs. However, by
Montgomery's own testimony , he did not learn about the
Company's failure to obtain these jobs until the last week
in November , whereas the undisputed evidence shows that
Mayfield was laid off about November 973 Moreover, the
Company's records show that after Mayfield's layoff and
while he was still unsuccessfully requesting Montgomery to
recall him, Montgomery hired two new employees who
were less skilled than Mayfield. Further, while the Compa-
73 The charge in Case 12-CA-5946 and the original complaint all alleged
that Mayfield was laid off about December 5.
After all parties had rested at the May 1972 hearing, I requested company
counsel to pay particular attention to Mayfield's case in their brief. Howev-
er, although the brief concedes that Mayfield was laid off on November 9,
its specific argument with respect to Mayfield is confined to the contention,
discussed elsewhere in this Decision , that there is no evidence the Company
knew about Mayfield 's union activity . Counsel 's brief made no effort to
reconcile Resp Exh . I I with the admitted facts.
ny contends that its selection of employees for layoff dur-
ing the week ending December 10, 1972, was based on
defects in the Bayou Manor job, particularly in the "under-
ground," Montgomery admitted that he did not learn about
the defects in the "underground" until March 1973; there
is no credible evidence that any of the alleged 1972 dis-
criminatees ever worked on that job; and Montgomery's
own testimony about the completion date of the Bayou
Manor "underground" is irreconcilable with his testimony
that Gurchick worked thereon.74 Moreover, the uncontra-
dicted evidence shows that Montgomery regarded the crew
of which Hodge was a member as one of the Company's
best crews , and there is no evidence that Hodge ever
worked on any of the jobs as to which the Company pro-
duced evidence of defects. Also, notwithstanding the
Company's conceded need for skilled workers, the credited
evidence shows that at least four of the nine alleged 1972
discriminatees were fitters, and that at least three of the
retained employees (Bender, Hoff , and Wilson) were mere-
ly helpers. The Company offered no reason for retaining
two employees who had, or were believed to have, worked
with the alleged discriminatees on two allegedly defective
jobs-namely, Bender (with Wilson, its lowest paid em-
ployee) or Ronzone. Further, the credited evidence negates
the alleged factual underpinning of the Company's expla-
nations for retaining Hoff, Wilson, Phillips, Lowery, and
Martinez.
Furthermore the record creates serious doubts as to the
truth of other reasons tendered by the Company for the
terminations . Thus, although Leen testified that he dis-
charged Delmas and Stafford partly for poor attendance,
the Company retained Martinez and Coyle, although their
attendance was comparable. Leen's testimony that he re-
tained Martinez because he was only a helper and Delmas
had been a foreman on his prior job (although not on the
job where he worked when discharged) not only is improb-
able on its face , but also fails to explain the retention of
Coyle, who had also been a foreman. Although Leen fur-
ther testified that he discharged Delmas and Stafford part-
ly because their timesheets showed excessive tardiness, two
of the only three purported timesheets reflecting a short
workweek by either employee were not shown to be genu-
ine; 5 and even the purported timesheets which do reflect
short work days (2 days for Delmas and 1 for Stafford over
74 Similarly , the Company 's brief contends that poor work on the Winn
Dixie and TGY stores in Francis Lake , Georgia , played a part in the selec-
tion of employees for layoff . However , Montgomery , who alone decided on
the layoffs , did not allude to these jobs in his testimony; and there is no
evidence that any of the alleged discriminatees worked on them. Hodge
worked on jobs performed on like named stores in Twin Lakes , Georgia.
75 While these timesheets are consistent with the payroll ledger, which
shows the total number of hours worked during the week , I cannot assume
that no timesheet inaccuracies consistent with the payroll ledger could assist
the Company in its tardiness defense . Thus, Resp . Exh. 4 asserts that Del-
mas worked 8 hours on Monday , 9 on Tuesday , 9 on Wednesday , 6-1/2 on
Thursday , and 9 on Friday; these entries permit the contention that he was
2-1/2 hours late on Thursday . No support for a tardiness contention would
be obtained from entries totalling the same number of hours but showing
that he worked 8 hours on each of 3 days and 8 - 1/2 on a fourth day.
Similarly , Resp . Exh. 9 asserts that Stafford worked 8 hours Monday
through Thursday and 4 hours on Friday. Equally consistent with the pay-
roll ledger , but not with a tardiness defense , would be entries showing that
Stafford worked 9 hours Monday through Thursday and was absent on
Friday
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
a 7-week period assuming the genuineness of all time-
sheets) fail to show that the employee 's failure to work 8
hours was due to tardiness rather than (for example) illness
on the job. Moreover, although Foreman Van De Hatert's
alleged complaints that Delmas and Stafford were late on
other occasions were reconcilable with the timesheets only
on the somewhat unlikely assumption that these employees
were making up for arriving late by taking short lunch peri-
ods or leaving late, Leen admitted that he did not discharge
Van De Hatert for approving timesheets calling for 8 hours
of pay for these employees, and there is no evidence that
Van De Hatert was otherwise disciplined therefor. Nor is
there any evidence that Delmas and Stafford came late or
left early oftener than any other employees. Additionally,
the credible evidence shows that Delmas was warned only
once (with Stafford) about these alleged deficiencies, and
there is no credible evidence that Stafford was warned on
any other occasion . Further, the credible evidence shows
that Leen did not refer to these alleged failings in directing
Ed Cormican to discharge them; and it is undenied that
Cormican did not refer thereto in telling the employees
they were discharged. Moreover, Leen's testimony that
these deficiencies were his only and real reason for termi-
nating these employees is further impugned by his admit-
ted failure to make any effort to recall either of them not-
withstanding his admitted willingness to reemploy them. I
cannot credit Leen 's explanation that he was not sure
whether their current addresses and phone numbers were
available, for Leen had nothing to lose but a little time by
attempting to use the addresses and any phone numbers
which the Company actually had, and he conceded that
both were good workers and that he was constantly short-
handed . In view of the improbabilities in Leen's explana-
tion for discharging Delmas and Stafford and failing to
recall them, I do not credit Leen's testimony that union
activity played no part in the reasons for their termination.
The evidence renders likewise questionable the
Company's contention that some of the discrtminatees
were selected for layoff because they worked on the Star
Kitchens , ABC, and Gayfer' s Mall jobs . Montgomery him-
self complimented the employees who worked on the Star
Kitchens job; and he testified that the defects on that job
were mostly due to the -then construction superintendent,
and that problems similar to those on that job "existed
from the time we started the Company-not just this par-
ticular group of men ." Further, - the Company witnesses'
exaggeration of its difficulties on the ABC and Gayfer's
Mall jobs (supra, sec. II , D,l,b), its reliance on defects in
the ABC job which it apparently discovered after the lay-
offs, and its unexplained retention of employees Ronzone
(who Montgomery believed had also worked on the
Gayfer's Mall job) and Bender (who had also worked on
the ABC job) render suspect its contention that alleged
1972 discriminatees were laid off because of difficulties on
those jobs.76
76 During the hearing , company counsel tacitly disclaimed any contention
that any employee was discharged because of the Silvercote job, on which
Vega and Mayfield worked ; and Montgomery , who alone decided on the
layoffs , did not allude to this job in his testimony . However , counsel's brief
in effect relies on this job to explain the layoffs. Vega's uncontradicted and
957
However, the most substantial assistance which the
Company's evidence affords to the General Counsel's
cause is provided by Respondent's three-page exhibit 11.
Montgomery testified that the first page of this exhibit is a
true copy of a letter-on its face bearing neither a date nor
typist's initials-which he dictated and mailed to Best on
December 5, 1972, immediately after the Gayfer's Mall
layoff. He further testified that the second and third pages
of this exhibit constitute true copies of two handwritten
charts which were. prepared by him on December 5 and
mailed with the first page of the exhibit as a unit. This
exhibit's description of the Company's personnel situation
is so much in conflict with the uncontradicted evidence
regarding the December 5 situation as to negate any con-
tention that it represents an honest effort to describe the
situation on that date. Thus, the document describes, as
having been laid off "this week," three employees who had
been laid off some time earlier-alleged discriminatees
Mayfield (who-as the Company concedes on p. 20 of its
brief-had been laid off about November 9, more than 3
weeks prior to December 5) 77 and employees Pace and
Perez (who had been laid off prior to November 20, and
"several weeks" prior to December 5). Moreover, the ex-
hibit describes Irish, Lowery, Martinez, and Wilson as
.,now actively working" on the Gulf & Western job. How-
ever, Montgomery unequivocally testified that these four
individuals worked on the Pompano Beach job until De-
cember 7, after which at least three of them were transfer-
red to the Gulf & Western job (supra, fn. 54). Further,
although the first page of the exhibit states that Montgom-
ery had reconstructed six crews with the Company's "re-
maining personnel," the charts omit any statement regard-
ing the job assignments of retained employees Bender and
Ronzone. Moreover, the charts list 25 names, although the
first page states that "As you know we had approximately
24 employees on the active list at the beginning of this
week." The record suggests no motive for Montgomery's
misinforming Best (his immediate supervisor) regarding
these,particulars; nor would it appear likely (even if Mont-
gomery had so testified, as he did not) that these were mere
errors, involving (as they did) 7 of the 25 individuals listed
on the charts (as well as the omission of 2 individuals) and
several independent personnel actions.78 Nor did the Com-
pany produce any evidence corroborating Montgomery's
testimony that Respondent's Exhibit 11 was nevertheless in
fact a letter to Best mailed on December 5, such as the
testimony of the secretary who typed it (according to
credible testimony shows that the flooding on this job, following pipe dam-
age from another firm 's mishandling of a bulldozer, was due to the unavail-
ability on the job of a plug for the replacement pipe , combined with the
action of the plumbing contractor in turning the water on without notifying
the Company's employees
77 The charges and the complaint (before its amendment at the hearing)
alleged that Mayfield was laid off about December 5.
7 Montgomery testified that he included the names of Perez and Pace in
this letter "rather than write several notes to Mr Best." I cannot credit this
explanation , in view of Montgomery's other testimony that Best had to
know about all layoffs because he was in charge of making out the employ-
ees' weekly paychecks and that these two employees had been laid off "sev-
eral weeks before" December 5 Montgomery offered no explanation for
including the name of Mayfield, who had been laid off on November 9; for
any of the other discrepancies between the exhibit and his testimony; for
any of the exhibit's omissions ; or for its internal inconsistencies
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery) but did not initial or date it, or the covering
envelope .79 I conclude that Respondent 's Exhibit 11 is a
fabrication ; that by testifying under oath to its genuineness
Montgomery has drawn into question the veracity of all of
his testimony , including his testimony that the alleged 1972
discriminatees were terminated for reasons unrelated to
union activity; and that the Company 's reliance on this
document-which directly relates to 9 of the 11 termina-
tions alleged to be unlawful-provides affirmative support
for such allegations . N.L.R.B. v. Pittsburgh S.S. Company,
337 U.S. 656 , 659; Shattuck Denn Mining Corporation (Iron
King Branch) v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9,
1966).80
79 Additionally, I note that the first sheet of this exhibit is under the
Company's letterhead , although Montgomery (who allegedly wrote it on
December 5 in his capacity as the Company's then construction superinten-
dent) testified in early May that Leon (who succeeded him in that position
on December 18) corresponds with Best (the purported addressee of the
exhibit) on "an internal correspondence sheet ... They don't use letter-
heads internally to talk to each other." Nor does this exhibit bear the street
address of Best 's Jacksonville office. Further, the exhibit's representations
that Montgomery had "personally" advised each listed employee of the
reasons for his termination were inaccurate as to Wilcox and Parker; and its
statements that none of the employees would likely be rehired are inconsis-
tent with Montgomery's November 9-27 representations to Mayfield and
his December 7 representations to Hancock. See also the last sentence in fn.
80, infra.
"After Resp . Exh. 11 was received into evidence on the basis of
Montgomery's testimonial authentication , the Company had marked for
identification as Resp . Exh. 12, and offered into evidence , a chart prepared
by Montgomery . The base line of this chart represents the period between
February 1972, when the Company began operations , and April 29, 1973.
The chart contains a series of bars, allegedly one for each company job,
which appear above those portions of the base line representing the penod
during which each was allegedly in progress . In addition, the chart contains
a line graph purporting to show the number of employees on the payroll at
the end of each week who were going to be working the following week.
Montgomery testified that he prepared the line graph on the basis of, inter
alia, the employees' individual weekly timesheets . Because the Company
refused to comply with the General Counsel' s request to produce for inspec-
tion the time sheets from which the chart was admittedly prepared, I reject-
ed the exhibit . Greenhill v. United States, 298 F.2d 405, 412 (C.A. 5), cert.
denied 371 U.S. 830; Flame Coal Co. v United Mine Workers, 303 F.2d 39,
45-46 (C.A. 6), cert. denied 371 U.S. 891; Miami National Bank v. Pennsyl-
vania Ins. Co., 314 F.Supp . 858, 865 (D.C., S.D. Fla.). I note , moreover, that
the line graph was prepared partly on the basis of the Company's personnel
records , which were not produced either
However, because the probative evidence relating to this chart's factual
assertions is scattered in a disorganized fashion throughout this record,
whereas the chart is relatively tempting because compact , neat, and attrac-
tively rendered , and because the chart is available for inspection to review-
ing authority in the rejected-exhibit folder , a few further words of caution
may be appropriate . Thus, the factual representations in the chart, even
assuming their accuracy, do not point to any particular conclusion relevant
here, because the chart fails to reflect the fact that the Company used more
employees at once on some jobs than on others, used different numbers of
employees on the same job at different times, and operated some jobs but
not others on weekends . Furthermore, although the number of employees as
reflected by the chart never exceeds 31 and sometimes falls as low as 3,
Montgomery admitted that these figures had a tolerance level of plus or
minus 2 . Moreover, Montgomery admittedly used his own judgment in de-
termining whether the chart should show breaks (other than holidays and
weekends) in the continuity of jobs, and when the chart should show a job
as completed . For example , the chart fails to show that a "Gulf and West-
ern" job was in progress at any time after June (the chart asserts that a "G
& W" job was completed that month), but Ronzone's timesheets show that
he performed work charged to a Gulf & Western job in Fellsmere on vari-
ous occasions between September 27 and October 16, Montgomery testified
that Irish 's crew were transferred to the Gulf and Western job in the second
week of December , and Stafford 's timesheets indicate that he and Delmas
worked on a Gulf and Western job in Fellsmere on December 20. Similarly,
In view of the payroll records showing that the
Company's work force and total hours worked never re-
turned to their level during the week before the December
layoffs , I accept Montgomery's testimony that in the last
week in November the Company learned that it was not
going to obtain two jobs it expected to receive.' 1 Assuming
that even in the Union's absence this event would have led
the Company to lay off 10 employees , as it did during the
week ending December 9,82 the Company was not privi-
leged to select employees for inclusion in this layoff for a
purpose of procuring the Union 's defeat . N.L.R.B. v.
W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.2d
272, 275-276 (C.A. 5), cert. denied 344 U.S. 865 ; N.L.R.B.
v. Ambox, Incorporated, 357 F.2d 138 , 142-143 (C.A. 5,
1966). However , for the reasons stated supra, sec. II , D,l,c,
I cannot believe the Company 's explanations for retaining
Hoff, Phillips , Wilson , Martinez , and Lowery rather than
the eight alleged December discriminatees. I conclude that
the Company selected these eight alleged discriminatees
for inclusion in the layoff because it knew that Vega was
organizing the employees , Neptune wanted to join the
Union , and the remaining six employees were among those
although the chart states that the ABC Packaging job was completed about
December 13, Leen admitted that some work was done thereon in February
and March 1973. Likewise , although the chart states that the Silvercote job
in Ocala was completed in late September , Foreman Gentry credibly testi-
fied that as of December 9 the heads in the office area were not yet in-
stalled. In addition , although the chart asserts that the Wilson Store job was
completed about October 7. Montgomery's testimony and Ronzone 's time-
sheets show that work was performed on that job for several days around
November 3 (infra, fns. 96-97). Also, although the chart asserts that the
Ware Adamo job was completed about June 17, Ronzone's timesheets state
that he performed work charged thereto on various dates between Septem-
ber 8 and November 15. Again, although the chart asserts that the Chief-
land job was completed in late October, Gentry credibly testified that the
job was incomplete as late as December 9, indeed , Montgomery testified
that he visited that job on December 8 to check on its "progress ." Moreover,
although the chart states that a "Globe Union" job was completed in early
September, Resp . Exh. I I (which Montgomery testified was written and
sent on December 5) states that Van De Hatert and Hoff were "actively
working" on the Globe Union job.
Bi I note, however, that company witness Bouton was not asked about the
occasion when , according to Montgomery, he gave Montgomery the latter's
first information about the Company's failure to obtain these jobs. More-
over, Montgomery assigned the failure to obtain these jobs as the reason for
laying off Perez and Pace "several weeks" before December 5, and prior to
November 20, and laying off Mayfield about November 9. Montgomery
further testified that he undertook to hire a five -man Ohio contingent on
November 20; the Company hired two new and inexperienced employees
(Wilson and Phillips) about November 13 and on November 17, respective-
ly; and Gurchick 's uncontradicted and credible testimony shows that as late
as about November 22, Montgomery told him that it would be all right for
him to return to work on December 1. Furthermore, the Company did not
offer into evidence its payroll records to show the number of hours worked
for any week prior to November 27; indeed, the payroll records between
November 27 and February 4 were offered into evidence by the Union,
which obtained them by means of subpoenas which the Company unsuc-
cessfully moved to quash . Also, then Assistant Construction Superintendent
Leen 's December 5 response to employees ' questions about the reason for
the layoff indicates that he was unaware of any loss of company work
within the preceding few days. If the Company learned about its failure to
obtain one or both of these jobs prior to Mayfield's November 9 layoff, or
even prior to November 20, its action in hiring these new employees and
promising reinstatement to another before receiving the Union 's bargaining
demand on November 27 would seriously undermine any contention that
the December 5 layoff was precipitated by the failure to obtain these jobs
and not by the demand.
82 Namely, Vega, Neptune, Hancock, Van Nathan, Wilcox, Parker,
Hodge. Gurchick, Johnson, and Dickson.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
accessible to Vega's union organizing campaign. Further-
more, the Company could not lawfully increase the num-
ber of employees to be laid off for a purpose of defeating
the Union. See Laher Spring & Electric Car Corp., 192
NLRB 464, 465-466 (1971). However, the Company ten-
dered no evidence about the number of employees hired in
anticipation of the two lost jobs; Leen testified, in effect,
that the Company became shorthanded at least as early as
the beginning of January, less than a month after the De-
cember layoffs; Montgomery stated in mid-December that
he could not rehire anyone "until he found out what hap-
pened to the union business"; and most of the new em-
ployees whom the Company hired after the layoffs were
less desirable than the eight alleged December discrimina-
tees, who were never recalled. I conclude from this evi-
dence that in order to obtain a plausible explanation for
ridding itself of Vega, employees accessible to him, and
Neptune, the Company expanded the size of the layoff,
and thereafter compressed the size of its work force to a
smaller number than it would have maintained but for the
Union's presence 83
I am not moved to conclude otherwise by the testimony
of Montgomery and Bouton regarding alleged improve-
ments in the quality of the Company's work after the lay-
offs, in view of the Company's admission that management
and not the employees were responsible for many of the
prelayoff defects; the Company's failure to explore the ex-
tent to which it attributed the improvement to the change
in the rank-and-file employees' identity; and the inherent
likelihood that the management of the Company, which
was only 10 months old at the time of the December lay-
offs, would become more efficient with time and experi-
ence. In any event, unlawful discharges can hardly be ex-
cluded on the ground that as matters turned out, the
employer "realized an economic dividend from its anti-
union activity." N.L.R.B. v. Biscayne Television Corpora-
tion, 337 F.2d 267, 268 (C.A. 5, 1964).
The Company further contends that no discrimination
can be found because except as to Vega, the record alleg-
edly fails to show that it knew about the alleged discrimi-
natees' union sympathies. The credited evidence shows
that in November 1972, Neptune told Montgomery that he
was going to join the Union to obtain better wages and
benefits. Moreover, I infer that Montgomery knew or sus-
pected that Mayfield supported the Union, in view of
Montgomery's selection of Mayfield as the object of an
inquiry about whether he had heard about the Union even
before Mayfield had signed a union card, and Mayfield's
layoff a few days later-on a demonstrably false pretext-
after Mayfield had signed a card and Montgomery had
concluded that Vega was organizing the employees.
It is true that the record fails to show that the Company
knew which of the remaining eight alleged discriminatees
had signed union cards; indeed, the record shows that
Hodge and Stafford never signed cards.84 However, I have
83 I note that after the December layoffs, the employees worked an aver-
age of more than 80 hours of overtime a week-about 15 percent of the total
hours worked.
84 However, when contacting Stafford and the Hodge -Johnson-Gentry
crew, Vega did not have any blank cards in his possession and intended to
959
concluded that the Company selected these eight employ-
ees for layoff because their accessibility to Vega for solici-
tation indicated that most, if not all, the remaining Union
supporters were included within their ranks-as, indeed,
was in fact the case.85 Such action violates Section 8(a)(3)
and (1) even absent evidence that the employer knew
which of the terminated employees were union members.
Tidelands Marine, supra at 47-48; Majestic Molded Prod-
ucts, Inc. and Lucky Wish Products, Inc. v. N.L.R.B., 330
F.2d 603, 606-607 (C.A. 2, 1964); N.L.R.B. v. Treasure
Lake, Inc., d/b/a Great Northern Development Co., Inc., 453
F.2d 202, 203-205 (C.A. 3, 1971); N.L.R.B. v. Ship Shape
Maintenance Co., Inc., 474 F.2d 434, 439-441 (C.A.D.C.,
1972); see also, Textile Wkrs. Union v. Darlington Mfg. Co.,
380 U.S. 263 (1965); N.L.R.B. v. Hertz Corporation, 449
F.2d 711, 714-715 (C.A. 5, 1971) 86
Nor do I believe that the evidence supporting the Section
8(a)(3) complaint allegations is rendered less than prepon-
derant by the complaint' s omission of Johnson and Dick-
son, both of whom were also laid off on December 5; or by
the Company's failure to include Bender and Ronzone in
that layoff-an omission for which the Company has ten-
dered no reasons. The General Counsel stated on the rec-
ord, and I accept this professional representation, that
Johnson and Dickson had not been named in the com-
plaint because he had been unable to locate the former and
prior to the first day of the hearing had never heard of the
latter. While perhaps the General Counsel should nonethe-
less have sought to name them in the complaint (a matter
as to which I deem it more proper to withhold comment),87
the General Counsel's position can hardly be equated with
an affirmative representation that their layoff was lawfully
motivated (a matter as to which he could have no first-
hand knowledge); and the fact that the reasons for their
inclusion in the layoff were not fully litigated precludes me
from taking such reasons into account in evaluating the
terminations actually complained of. As to the Company's
unexplained retention of Bender and Ronzone, the Com-
procure some later for their signatures . Moreover, Vega's efforts to reach
Stafford after he had temporarily quit suggest that Stafford was receptive to
Vega's initial approach.
Indeed, Montgomery admitted that after late February 1972, he heard
"from week to week" that "certain people were going into the union" and,
when asked whether any employees other than Vega had told him they had
joined the Union, replied, ". . . I just can't remember."
86 As indicated in Tidelands Marine and Majestic Molded Products, supra,
no different result is suggested by Skyline Homes, Inc. v. N.L R.B., 323 R2d
642, 645-646 (C.A. 5, 1963), employer's petition for cert. denied 376 U.S.
909 (1964). The Court there found a "failure to show that [the employer]
struck at a suspected group of employees ," and that the "speculat[ion] that
[the employer] took a 'stab in the dark,' hoping to rid himself of the 'wrong'
people" did not rise "above the level of conjecture." 323 F.2d at 646. Such
language plainly indicates that the Court would have found an unfair labor
practice if such motivation had been supported by the evidence, as I find it
to be in the instant case.
87 Cf. Radio Officers' Union of the Commercial Telegraphers Union, AFL
[A. H Bull Steamship Company] v. N.L.R.B, 347 U.S. 17, 34, fn. 30;
N.L R. B. v. American Potash and Chemical Corporation, 98 F.2d 488, 493-
494 (C.A. 9); Patrick F. Izzi, d/b/a Pat Izzi Trucking Co., 162 NLRB 242,
246, 260-261, remanded on other grounds 395 F.2d 241, 244 (C.A. 1, 1968);
Southland Manufacturing Corp. v. N.L.R.B, 475 F.2d 414, 417 (C.A.D.C.,
1973); W. C Nabors, d/b/a W. C. Nabors Co. v. N.L.R.B., 323 F.2d 686,
691 (C.A. 5, 1963), cert. denied 376 U.S. 911 (1964). Counsel for the General
Counsel failed to call as witnesses three persons alleged in the complaint as
discriminatees-Parker, Van Nathan, and Stafford.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany had to retain enough employees to perform the work
somehow; while Vega solicited both to sign union cards,
Ronzone refused to sign and the Company makes no con-
tention that it knew Bender had signed ; and, assuming the
Company's contention that it did not know which employ-
ees favored the Union, the unanimous "no" in the opened
ballots indicates that Bender's and Ronzone 's retention
was at the very least an educated guess . Cf. Nabors, supra
at 276.
Finally, the Company contends that in any event the
discharge of Stafford and Delmas did not violate the Act
because they were allegedly supervisors. All parties agreed
that they were supervisors between November 29 and
about December 4, 1972. However, Leen admitted that Ed
Cormican and not Delmas was the foreman on the
Gayfer's Mall job, where Delmas and Stafford were work-
ing when discharged; and that Van De Hatert was the fore-
man on the Bayou Manor job at the time Delmas and
Stafford were transferred therefrom to Gayfer's Mall. Fur-
ther, Delmas credibly testified that the last period during
which he served as foreman terminated when he left the
ABC Packaging job about December 12;H and credibly
testified without contradiciton that Stafford's last tour of
duty as foreman ended even before then. I conclude that at
the time of their discharge, both these individuals were em-
ployees rather than supervisors within the meaning of the
Act.89
2. The alleged interference , restraint, and coercion
I further conclude that the Company violated Section
8(a)(1) of the Act when Montgomery (a high ranking com-
pany representative) asked Mayfield whether he had heard
anything about a union ; asked Vega and Hancock whether
they were going union ; and asked Hancock if he knew
whether Vega or any other employees were going union.
N.L.R.B . v. Varo, Inc., 425 F.2d 293, 298 (C .A. 5, 1970);
N.L.R.B. v. Camco, Inc., 340 F .2d 803, 804-807 (C.A. 5,
1965), cert . denied 382 U.S. 926 ( 1965). Such interrogation
sought information which was useful for the Company's
discriminatory purposes . Moreover , when Vega displayed
his apprehension of this result by asking whether his union
connection just discovered by Montgomery would "hurt"
him, Montgomery merely said that he did not "think" so.
Nor did Montgomery tender even this limited reassurance
either to Mayfield, or when taking advantage of Hancock's
visit about a job by asking about Vega's union activity and
u Stafford 's nmesheets for December 18 through 20, reflecting work on
the Bayou Manor and Gulf & Western jobs, contain Delmas' name in the
blank calling for Stafford's foreman ; but all the entries on these timesheets
were made by Leen on the basis of a telephone call. Also , Delmas' signature
appears both as foreman and as employee on his timesheets for the Bayou
Manor job on December 13 and 14 . However , neither Leen nor any other
witness testified about any supervisory duties performed by Delmas after he
left the ABC Job. Van De Hatert 's signature or purported signature appears
on all Bayou Manor timesheets in the record for periods after December 19.
89 Accordingly, I need not and do not consider whether, under the cir-
cumstances presented here , their discharge would have violated the Act
assuming they were supervisors . Cf Heck's, Inc., 170 NLRB 178, 184, fn. 8,
enfd . in part and remanded in part 418 F.2d 1177 (C.A.D.C ., 1%9); Fair-
view Nursing Home, 202 NLRB 318 (D & 0, fn. 2; ALJD, fn. 34) (1973);
Krebs and King Toyota, Inc., 197 NLRB 462, In. 4 (1972).
thereby inviting Hancock's admission of his own. Further,
when Hancock again asked Montgomery for a job, Mont-
gomery untruthfully told him that the Company had lost
the Bayou Manor contract, asked Hancock (in effect)
whether he and Vega were still union adherents, and then
attempted to find out the identity of the rest. Nor has
the Company suggested any legitimate purpose for
Montgomery's interrogation, either to the employees or to
me.
However, I conclude that the Company did not violate
the Act when Montgomery told Delmas, when he was
working on the ABC Packaging job, that Montgomery
"couldn't hire nobody back right now until he found out
what happened to the union business." The facts summa-
rized in the last paragraph of sec. II, E,1, supra, establish
that Delmas was a supervisor when working on this job.
III. THE UNION'S ALLEGED MAJORITY
A. The Employees Included in the Unit
1. The employees concededly in the unit; Mayfield,
Wilson, Phillips
The parties agree that the following employees were in-
cluded in the appropriate unit between November 27, 1972,
and December 3, 1972: Lowery, Martinez, Parker, Dick-
son, Johnson, Vega, Hancock, Neptune, Van Nathan,
Bender , Wilcox, Hodge, and Gurchick. Further, all parties
concede that Mayfield is to be included in the unit on these
dates if his November 9 layoff was unlawful. In view of my
finding that his layoff violated Section 8(a)(3) and (1) of
the Act, Mayfield must be included in the unit for purposes
of ascertaining whether the Union possessed majority sta-
tus prior to December 4;90 and , further, his replacement
must be excluded 91 The record shows that between
Mayfield's unlawful November 9 layoff and December 4,
the Company hired employees Wilson and Phillips to per-
form unit work. Because neither of these employees signed
a union card, the question of which replaced Mayfield is
academic . I accept the suggestion of counsel for the Gener-
al Counsel that Wilson, who was hired first, be considered
Mayfield's replacement . Accordingly, Wilson is excluded
and Phillips included.
90 Further , I find meritorious the Union's contention that Mayfield
should be included in the unit even accepting the Company's contention
that his November 9 layoff was due to lack of work . When Mayfield was
laid off , Montgomery indicated that some work would likely be available in
a couple of days. On none of the approximately seven occasions between
then and November 27 when Mayfield called about a job did Montgomery
indicate that he had changed his mind about recalling Mayfield . While it
appears that Mayfield stopped calling Montgomery when or shortly after
obtaining work elsewhere during the last week in November , Mayfield
deprecatingly referred to this employment as a "little job" and indicated his
continued interest in working for the Company by voting in the February
1973 election. I conclude that at all relevant times , he was at the very least
a temporarily laid-off employee with a reasonable expectation of reemploy-
ment within a reasonable time in the future . Accordingly, I include him in
the unit at all relevant times. American Printers & Lithographers, Inc., 174
NLRB 1179, 1185-86 (1969).
91 Sioux City Brewing Company, 85 NLRB 1164, 1166-67 (1949) (McCann
and Carstedt); N.L.R.B. v. A. Sartorius & Co, Inc, 140 F.2d 203, 206 (C.A.
2).
INDEPENDENT SPRINKLER & FIRE PROTECTION CO. 961
2. Bowles and Ronzone
The amended complaint alleges, and the answer thereto
admits, the following unit to be appropriate:
All employees engaged in the installation of sprinkler
systems on construction jobsites employed by the
[Company] at its Tampa, Florida location, but exclud-
ing office clerical employees, draftsmen, guards and
supervisors as defined in the Act.
This unit was in effect agreed to by the Union and the
Company in the preelection representation case hearing
and was found appropriate by the Regional Director in the
Decision and Direction of Election. Both the Union's rep-
resentation petition and its bargaining demand sought a
unit of "all sprinkler fitters engaged in the installation of
sprinkler systems on construction jobsites; excluding all
other employees, shop employees, office clerical employ-
ees, guards and supervisors."
At the preelection representation case hearing, conduct-
ed in late December 1972 and early January 1973 by Hear-
ing Officer Mary Lee Meder, Montgomery testified that
the Company's employee complement consisted of the out-
side installers , a part-time clerical employee, and Richard
Carr, whom Montgomery described as an engineer and
draftsman. In addition, Montgomery testified that employ-
ee Bowles, who had been discharged prior to that hearing,
was (like Carr) an engineer. Company counsel took the
position that Carr was excluded from the unit, and also
that shop employees (specifically excluded in the Union's
request for recognition) should be excluded.
At issue before me is the unit placement of Bowles and
Ronzone. Bowles testified that his job classification was
"engineer," but that he had no college degree and no li-
cense as a professional engineer . He worked with Carr and
helped train him. Bowles drew up blueprints for fabrica-
tion of pipe, determined how to run pipe in existing build-
ings, obtained underwriters' approval of various sprinkler
systems, and picked up pipe at the bus station. On four or
five jobs Montgomery sent Bowles to install pipe in the
field to solve problems flowing from errors in the drawings,
or because material was damaged on the job. The longest
of these assignments lasted for 2 weeks, and required an
engineer 's skills . The others lasted for a day or two. Bowles
spent about half his time in the field, and the installers
were on the job for about 20 percent of this period. When
Bowles was not in the field, he had contact with the instal-
lers every morning when they came in to get their job as-
signments, tools, and to turn in their timesheets. Bowles
was directly supervised by Montgomery throughout
Bowles' employment (from July 1972 to December 18,
1973), although Montgomery supervised the installers dur-
ing only the periods when he was acting as construction
superintendent as well as chief engineer, and the installers
were directly supervised by their respective foremen.
The Union contended at the initial hearing before me
that Bowles should be included in the unit. The Union now
contends that he should be excluded, a position taken by
the Company at all times and by counsel for the General
Counsel at the reopened hearing.92 I conclude that he
should be excluded. In so finding, I rely on the evidence
that most of his work was performed at times when, and
places where, the installers were not working; that he per-
formed only a small amount of actual installation work;
that he was supervised by the chief engineer, rather than by
the construction superintendent and the foremen as were
the installers; and that most of Bowles' work was similar to
that performed by, and was performed in association with,
Carr, whom the Company would exclude from the unit and
who likely was excluded (as the Company's only then
draftsman) by the express exclusion of draftsmen from the
unit description accepted in the pleadings and specified in
the Regional Director's direction of election.
The Company would include Ronzone in the unit, while
the Union and counsel for the General Counsel would ex-
clude him. Before being hired by the Company on August
30, 1972, Ronzone had worked as a "shop man" for anoth-
er sprinkler company. Then Construction Superintendent
Hogg told the employees that Ronzone had been hired by
Montgomery because the Company needed a new shop
foreman; and Ronzone described himself to employee
Vega as a shop foreman. Ronzone had an office in the
warehouse. He issued tools to all installers, kept track of
the tools, and was responsible for them. He fabricated pipe
in the shop; bundled, tagged, and packed it; and either
sent it to the jobsite or brought it out himself.93 He also
picked up defective pipe at the jobsite, repaired it, and
delivered it back to the jobsite. When he delivered material
to the jobsite, the outside installers on the job unloaded it.
During a visit to the jobsite, he would stay about half an
hour. Many of the installers have spent time in the shop
just doing cleanup details. Ronzone was under
Montgomery's direct supervision throughout the preelec-
tion period here in question, although during part of this
period Montgomery was not acting as construction super-
intendent and, therefore, did not supervise the installers.
Ronzone's timesheets code all his work under "Receiving,
Shipping, and Distributing" and bear only his own signa-
ture (as either workman or foreman);94 the outside instal-
lers' timesheets code their work as "Interior Sprinkler
Work" and bear both a foreman's and the worker' s signa-
tures. Vega credibly testified that between Ronzone's hire
on August 30, 1972, and Vega's layoff on December 5,
1972, he never saw Ronzone install pipe. The Company
tendered credible evidence as to only two jobs prior to
December 4, 1972, when Ronzone actually installed pipe
on the jobsite.95 One of these was a job in Chiefland,
92 Prior to the Sec 8(a)(5) amendment to the complaint, Bowles' unit
placement was relevant only to the representation case , to which counsel for
the General Counsel was not a party
93 Montgomery testified that "... sometimes-from time to time either
fitters or foremen from the field-we would pull in someone who knew how
to run the [fabricating] machines . We had some problems there." The, record
contains no further evidence about this alleged activity by the fitters or
foremen.
94 The timesheet form used by the Company has no code for shop work as
such . See infra, fns. 95, 97.
95 Although the entry "shop" on one of Ronzone's timesheets means that
the work recorded thereon was performed in the shop, the entry of a partic-
ular job on one of Ronzone's timesheets means merely that that job was
charged for his work, which may have been performed in the shop or else-
Continued
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida , where he worked for 1 day. The other was the
Wilson's department Store job .% On this job, the customer
was "livid. He wanted the drops cut back and [the Compa-
ny] didn't have anybody in town to do it." Cutting back the
drops took the better part of a week , including a weekend;
and was directly supervised by Montgomery, who himself
performed some of the work. Ronzone's timesheets show
that his participation in this part of the job consisted of 4
hours' work on Friday, November 397 In addition, Ron-
zone had one employee "under" him, and told him to get
pipe ready or pick it up and "how and what to do." Fur-
ther, on at least one occasion Ronzone authorized overtime
work for about four outside installers whom he directed to
load a truck. He had no power to hire and fire. Ronzone's
job remained unchanged from the time he was hired to at
least December 4, 1972.99
Because the record fails to show that Ronzone 's direc-
tion of other employees' work was other than routine and
sporadic or that he had supervisory authority in any other
respect, I disagree with the Union's contention that he was
a supervisor within the meaning of Section 2(11) of the
Act. However, I agree with the Union and counsel for the
General Counsel that he was a shop employee and should
be excluded from the unit . Prior to the election both the
Company and the Union agreed that shop employees
should be excluded from the unit 99 Further, Ronzone
spent most of his time either processing pipe in the shop or
transporting materials to and from the jobsites, and very
little time installing pipe; while the installers spent practi-
cally all their time installing pipe at the jobsite. Also, Ron-
zone was directly supervised by Chief Engineer Montgom-
ery whether or not Montgomery was also acting as
construction superintendent , while the installers were su-
pervised by the foreman and whomever the construction
superintendent happened to be. I conclude that Ronzone's
interests were sufficiently different from those of the instal-
lers to warrant his exclusion from the unit at the time rele-
vant here.
where. His timesheets for the II weeks between the week ending September
10, 1972 , and the week ending November 26, 1972 , bear the entry "shop" for
all of the last week and similar entries for each of the 4 preceding weeks for
periods ranging from 4 to 13 hours . Montgomery testified at the first hear-
ing before me that Ronzone was "assigned to" the shop for the first month
of his employment, which began on August 30, 1972.
96 At the first hearing before me, Montgomery testified that Ronzone
worked for a "couple of days" on the Gayfer's Mall job during
Montgomery's 2-day tour of duty as foreman in late November 1972. How-
ever, this testimony is not corroborated by Ronzone 's contemporaneous
timesheets, which the Union offered into evidence at the reopened hearing.
m The Wilson job is also entered on Ronzone 's timesheets for 4 weekdays
in late September and early October (see supra, fn. 95). 1 infer the November
3 date from the fact that when Ronzone worked on the Wilson jobsite the
job was in a late stage . All his work on the Wilson job is coded under
"Receiving, Shipping , and Distributing."
sb My findings as to Ronzone 's duties are based on his timesheets , Vega's
testimony, and Montgomery 's testimony where not inconsistent with
Vega's. More specifically , on the basis of the witnesses ' demeanor and
Montgomery's unreliability as a witness in other respects , I discredit his
testimony, denied by Vega , that Ronzone was not "particularly" a shop
employee , and that nobody was ever regularly assigned to work with Ron-
zone at any time.
" While Montgomery testified at the preelection hearing on January 5,
1973, that the Company had no shop employees , there is little direct record
evidence about the nature of Ronzone 's duties after November 1972, and
the record suggests that they changed somewhat.
B. The Alleged Authorizations
I have concluded that between November 29 and De-
cember 3 , 1972, the unit consisted of 15 employees: Low-
ery, Martinez , Parker, Dickson, Johnson , Vega, Hancock,
Neptune , Van Nathan , Bender, Wilcox, Hodge , Gurchick,
Mayfield and Phillips . The record establishes that 9 of
these 15 authorized the Union to represent them.
Vega and Gurchick each authenticated the signatures
and dates (November 2 and 8, respectively ) on the authori-
zation cards bearing their names . Vega credibly testified at
the reopened hearing that on the dates (November 2 or 7)
appearing on the face of the cards in question , the follow-
ing employees signed in his presence , and returned to him,
the authorization cards bearing their purported signatures
and received into evidence : Neptune , Bender, Van Nathan,
Hancock , and Mayfield . He further credibly testified that
he mailed these cards to the Union . Union Representative
Cleare credibly testified that he received these cards in the
mail. This authentication is sufficient.'
I further conclude that Parker and Wilcox signed valid
authorization cards . Vega credibly testified that General
Counsel's Exhibit 9 is an accurate copy of a card signed by
Parker in his presence (on the date appearing thereon), re-
turned by Parker to Vega , and mailed by Vega to the
Union . Cleare credibly testified that he had received the
original card in the mail; and company counsel accepted
the word of union counsel and counsel for the General
Counsel that they had seen the original card , which was
subsequently lost or mislaid . Vega and Wilcox credibly tes-
tified at the reopened hearing that on November 2, 1972,
Vega gave a card to Wilcox , who thereupon signed it in
Vega's presence and returned it to him .2 Vega credibly tes-
tified that he mailed Wilcox's card to the Union; Union
Representative Cleare credibly testified that he received
the card and mailed it to the Union counsel ; and company
counsel accepted the Union counsel's representation that
he never received Wilcox 's card . I conclude that the legal
effect of this evidence is the same as the introduction of the
lost authorization cards properly authenticated . Cf. Nu Car
Carriers, Inc. v . Traynor, 125 F.2d 47 (C.A.D.C.).
Vega credibly testified that in soliciting the cards ob-
tained by him, he told the employees that the purpose of
the card was to be represented by the Union for better
wages and working conditions , and to obtain an election.
Such representations , of course, did not change the cards'
operative effect . N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 584, 604-609, fn . 5 (1969); N.L.R.B. v. WKRG-
TV, Inc., 470 F .2d 1302, 1317-18 (C.A. 5, 1973). However,
the Company contends that the cards of employees Parker,
1 McEwen Manufacturing Company and Washington Industries , Inc., l72
NLRB 990, 992-993, enfd . and affd . 419 F.2d 1207 , 1209 (C .A.D.C., 1969),
cert . denied 397 U.S. 988 (1970); N.L.R.B. v. Merrill Axle and Wheel Service,
388 F .2d 514 , 519 (C.A . 10, 1968). I note that at the original hearing, three
of the employees (Hancock, Neptune , and Mayfield) who did not testify at
the reopened hearing testified that they had signed union cards . Moreover,
while the evidence shows that the Company 's personnel files contain its
employees' signatures, the Company did not suggest any discrepancy be-
tween these signatures and those on the authorization cards.
2 At the initial hearing , Wilcox testified that Vega gave him the card but
Wilcox gave it "back" to Delmas . I accept as more probable Vega's and
Wilcox 's testimony at the reopened hearing that Wilcox returned the card to
Vega, who had given it to him.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
Bender, Van Nathan , and Wilcox are inoperative because,
in their presence , Supervisor Delmas signed a card at
Vega's solicitation and said , "I hope this works out and
there would be a union and everything represented." Be-
cause all these cards were solicited by Vega and not Del-
mas, because there is no credible evidence that Delmas
engaged in any other union activity, because he spent most
of his time performing the same work as rank-and-file em-
ployees , and because of top management's antiunion
views, I conclude that Delmas' minimal prounion activities
in the employees ' presence did not vitiate their cards.
WKRG-TV, Inc., 190 NLRB 174, 174-175, enfd. 470 F.2d
1302, 1313-17 (C.A. 5); Orlando Paper Company, Inc., 197
NLRB 637, enfd . 480 F .2d 1200, 1202 (C.A. 5, 1973).3
IV. THE REFUSAL TO BARGAIN; REMEDY FOR COMPANY'S UNFAIR
LABOR PRACTICES ; ACTION TO BE TAKEN WITH RESPECT TO THE
REPRESENTATION CASE
A. The Remedy for Unfair Labor Practices, Including
Refusal To Bargain
Having found that the Company has violated the Act in
certain respects , I shall recommend that the Company be
required to cease and desist therefrom . Because the
Company's unfair labor practices included the discrimina-
tory termination of I 1 employees in a relatively small work
complement over a period of almost 3 months-conduct
which accords with the Company's expressed policy and
goes "to the very heart of the Act" (N.L.R.B. v. United
Mineral & Chemical Corporation, 391 F.2d 829, 837-838
(C.A. 2, 1968) ^-I shall also recommend that the Compa-
ny be required to cease and desist from in any other man-
ner infringing on employee rights. N.L.R.B. v. Express Pub-
lishing Company, 312 U.S. 426, 436-438; N.L.R.B. v. East
Texas Pulp & Paper Company, 346 F.2d 686, 689-690 (C.A.
5, 1965); N.L.R.B. v. Southern Transport, Inc., 343 F.2d
558, 560-561 (C.A. 8, 1965).
In addition, I shall recommend that the Company be
required to offer reinstatement to the discriminatees and to
make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them,
computed on a quarterly basis as set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and with interest as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I shall also recommend that the Company be re-
3 The initial request that Vega distribute union cards came in a telephone
call by Thomas McCarthy. The weekend of October 21 or 28, McCarthy
and employee Thomas Hunter came to Vega's house to discuss the matter.
Vega testified that he was "pretty sure" McCarthy was no longer working
for the Company on the date of this discussion , and there is no evidence
that McCarthy was working for the Company either then or at the time of
the initial contact . Vega further testified that McCarthy had been a "super-
visor" or a "foreman ," but there is no other evidence that McCarthy pos-
sessed supervisory status . At the preelection representation case hearing,
Montgomery testified that some individuals might act as supervisors on
some jobs and as rank -and-file employees on others . The Company's brief
does not refer to McCarthy's role in the Union campaign , and there is no
evidence that any of the card signers but Vega knew about it . Vega testified
that when Montgomery interrogated him about the Union, on a date be-
tween Vega's two conversations with McCarthy, Vega felt that his "job was
on the line" because of his suspected prounion activity.
963
quired to post the customary notices. However, there is no
showing that the posting of such notices will be insufficient
to.bring them to the employees' attention, or that as a prac-
tical matter the Union is no longer able to convey its own
views to the attention of the employees, to whose names
and addresses the Union may be entitled as the employees'
statutory representative.4 Accordingly, I shall not recom-
mend acceptance of the Union's request that the Company
be required to mail the notices, have them read out loud,
and afford the Union access to company bulletin boards.
The question remains of whether a further remedy is
called for by my finding that prior to the December 1972
discriminatory discharges, a majority of the employees in
an appropriate unit wanted the Union to represent them,
particularly in view of the uncontradicted evidence that the
Union sought recognition in a letter recieved by the Com-
pany on November 27, 1972, and the Company's admis-
sion (in its answer to the amended complaint) that it has
not bargained with the Union. Laying to one side the as yet
undetermined election results, the principles declared in
Gissel, supra at 610-616, would plainly call for a finding of
a Section 8(a)(5) violation and a remedial bargaining order.
Of the 15 employees in the bargaining unit when the Com-
pany received the Union's bargaining demand, 9 had been
discriminatorily terminated by the end of the following
week, including all but one of the employees who had
signed authorization cards. Further, the Company frankly
stated that these discriminatees would not be rehired until
it found out what happened to the "union business." Prior
to the election, the Company discriminatorily terminated
two more employees, including another card signer, who
had been added to the unit after the prior discriminatory
terminations. As a consequence, the Union received no
votes from the active employees who voted in the February
1973 election, even though the Union had represented a
clear majority at the time of the demand some 3 months
earlier. I conclude that the discriminatory termination of
more than half the unit employees, which constituted a
continued and highly persuasive threat to the rest of a rela-
tively small group that they faced like retribution for union
activity, and which was preceded and accompanied by
coercive interrogation about the employees' union sympa-
thies, constituted unfair labor practices which are so seri-
ous, pervasive, and extensive as to make a bargaining order
the only available remedy therefor. At the very least, they
fall within the Gissel middle category of "less pervasive
practices which nonetheless still have a tendency to under-
mine union strength and impede the election process." As
unfair labor practices within that category, they would
justify under Gissel a bargaining order based upon the
Union's majority card showing and the Company's failure
to honor the Union's bargaining demand if other relevant
considerations confirm "that the possibility of ensuring a
fair election by the use of traditional remedies, though pre-
sent , is slight, and that employee sentiment once expressed
through cards would, on balance, be better protected by a
bargaining order." Such confirmation in the instant case is
provided by the Company's expressed policy of ridding it-
4 Western and Southern Life Insurance Company, 188 NLRB 509, 512-513
(1971).
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self of all union adherents, the inherent tendency of dis-
criminatory terminations to discourage both the immediate
victims and their fellows from engaging in further union
activity, and the Company' s statement that it could not
rehire discriminatees until it found out what happened to
the "union business." N.L.R.B. v. Sitton Tank Company,
467 F.2d 1371 (C.A. 8, 1972), enforcing 193 NLRB 209;
Superior Micro Film Systems, Inc., 201 NLRB 555 (1973);
Tri-City Paving, Inc., 205 NLRB 174 (1973); Motel 6, Inc.,
207 NLRB 473 (1973); N.L.R.B. v. Henry Colder Company,
447 F.2d 629, 631 (C.A. 7, 1971).5
However, at the conclusion of the reopened hearing,
counsel for the General Counsel took the position, at least
initially, that I should not consider the Section 8(a)(5) as-
pect of the complaint should I find that the Union won the
election;6 and then (when I pointed out that I had no way
of knowing how the challenged voters voted) that I should
"defer" ruling on the challenged ballots (apparently mean-
ing that if I found a bargaining order otherwise appropri-
ate, I should refrain from ruling on them at all). The Union
takes the position that it would choose a bargaining order
in preference to a certification, although, of course, it
would accept both. Even aside from the procedural diffi-
culties of implementing the position of counsel for the
General Counsel,' I conclude that I should issue both a
bargaining order and an order directing that the seven bal-
5 The Company's contention that Sec. 10(b) bars a Sec. 8(a)(5) finding
does not affect the bargaining order, which (as I have found) is called for by
the Sec 8(a)(1 ) and (3) violations as to which no Sec 10(b) defense is (or
could validly be) rendered . Howard Manufacturing Company, Inc., 180
NLRB 220, 222, enfd. 436 F.2d 581, 582 (C.A. 8, 1971), cert. denied 402
U.S 930 (1971); Aero Corp, 149 NLRB 1283, 1285, In. 3, enfd. and affd 363
F.2d 702, 707, In 7 (C.A.D.C., 1966), cert . denied 385 U S. 973 (1966).
In any event, I conclude that a Sec . 8(a)(5) finding is not time -barred.
Thus, the charge in Case 12-CA--6040 alone, which specifically alleges a
Sec. 8(a)(5) violation , is sufficient procedural support for a Sec. 8(a)(5) find-
ing here . Because the Company never replied to the Union's bargaining de-
mand , any finding of a refusal to bargain would be based on the Company's
failure to honor that demand within a reasonable time. Such a reasonable
time had not elapsed by November 30, 1972, which was 3 days after the
Company received the Union 's bargaining demand and 6 months before the
Company received the charge in Case 12-CA-6040. Moreover, the Union's
action in pressing the representation proceeding initiated simultaneously
with the demand establishes that it was continuing in nature . Howard Mfg.,
supra at 222; Aero, supra at 1285 , fn. 3, 363 F.2d at 706-707 Furthermore,
the merits of the Sec. 8 (aX5) complaint turn almost entirely on the 8(a)(l)
and (3 ) violations which took place less than 6 months prior to the filing of
the charge in Case 12-CA-6040. See Howard Mfg., supra at 222, 436 F.2d at
582 In any event , the 8(aX5) allegation in the amended complaint is
grounded , not only on the charge in 12-CA-6040, but also on the charge in
Case 12-CA-5946, which was filed less than 3 months after the 8(a)(5)
violation allegedly commenced , attacked (inter alia) Sec. 8(a)(3) violations
precipitated by the bargaining demand and other unlawful acts and con-
duct, and is alone sufficient to support the 8(a)(5) complaint allegation.
N L.R.B. v. Central Power & Light Company, 425 F.2d 1318, 1320-22 (C.A.
5, 1970); Kansas Milling Company v. N.L.R.B, 185 F.2d 413, 414-416 (C.A.
10); but see Herald Company, et at, 181 NLRB 421, enfd. and affd. 444 F.2d
430 (C.A. 2, 1971).
6 This initial position of counsel for the General Counsel is difficult to
reconcile with his successful efforts to add the Sec. 8 (aX5) related allega-
tions to the case after the close of the initial hearing before me . By that time,
as a practical matter, the only challenges which could be overruled were
those addressed to the seven ballots cast by alleged discriminatees , and the
Union could win the election if, but only if, all seven ballots favored the
Union.
7 Counsel for the General Counsel did not submit a proposed order, and
the more obvious possible orders which might arguably effect his position
seem to me clumsy and fraught with the possibility of procedural delays and
errors Among other things, counsel for the General Counsel appears to
lots cast by discriminatees be opened and counted. Hill-
Behan Lumber Co., supra at 750-752. Being entitled to the
benefits of a bargaining order if it had lost the election, the
Union should not be deprived thereof should it transpire
that all seven of the discriminatees (including Hodge, who
never signed a card) had voted for the Union and thus
afforded it a bare majority in the tally. The issuance of a
certification without a bargaining order might well require
the Union to institute still another unfair labor practice
proceeding in order to compel this antiunion company to
honor the certification by bargaining with the Union, even
though the probably determinative issues (the challenged
voters' allegedly unlawful terminations) have been dis-
posed of herein .8 Further, because the bargaining order
does not afford the Union all the rights of a certification
(see Gtssel, supra at 598-599), the Union's receipt of the
former should not in fairness deprive it of a certification to
which it would otherwise have been entitled if the Compa-
ny had voluntarily granted recognition rather than unlaw-
fully withholding it .9 The reasons for conditioning the is-
suance of a bargaining order on the vacation of the
pending representation proceeding where the Union lost
the election-namely, the presumption that the employees'
views are truly expressed by an election whose validity
stands unimpaired 10 -militate against a similar require-
ment where the Union won.
B. The Representation Case
1. The challenged ballots
Challenged voter Thomas Hunter was apparently termi-
nated prior to the election, withdrew unfair labor practice
charges presumably based on his termination, and is not
named in the complaint. The General Counsel and the
Union concede that he was ineligible to vote, the Company
does not contend otherwise, and there is no evidence point-
ing to a contrary conclusion. I conclude that he was ineligi-
ble and that the challenge to his ballot should be sustained.
At the reopened hearing, all parties agreed that chal-
lenged voter Jerry Gentry was a supervisor. The record
shows that he was foreman of his crew with power to hire.
I conclude that he was a supervisor and ineligible to vote. )1
The challenge to his ballot should be sustained.
On the basis of the duties performed by challenged voter
Jerry Bowles, I have previously found that he was not in the
unit . In any event, he was terminated on December 18,
1973, prior to the election. The Union's initial brief con-
tended that his termination does not affect his eligibility
have overlooked both my own loss of jurisdiction with the issuance of the
decision herein (see Sec . 102.45(a) of the Board 's Rules and Regulations)
and the possibility that a reviewing court might disagree with the particular
alternative selected by the Agency, although the court might have accepted
the other . Cf. N L.R.B. v. Hill-Behan Lumber Co., 396 F.2d 807 (C.A. 5,
1968), setting aside 162 NLRB 745, 750-752.
8 Old King Cole, Inc., 119 NLRB 837, enfd . 260 F.2d 530 (C.A. 6, 1958).
9 General Box Company, 82 NLRB 678 (1949).
10 Kolpin Bros Co., Inc, 149 NLRB 1378, 1380, enfd . 379 F.2d 488 (C.A.
7, 1967).
11 Gentry was named in the complaint ; but at the outset of the proceed-
ing, the General Counsel moved to strike his name therefrom on the ground
he was a supervisor . In the absence of a contention by any party that
Gentry's discharge violated the Act assuming him to be a supervisor, the
motion to strike his name from the complaint is hereby granted . See, howev-
er, the cases cited supra, In. 89.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.
because he was allegedly terminated to discourage union
activity . Because Bowles is not named in the complaint and
the Union withdrew its motion to add him thereto, I con-
clude that the reason for his discharge was not fully litigat-
ed and , therefore , that this issue is not before me in the
unfair labor practice case . Accordingly , in the representa-
tion case he may not be held eligible on the ground that his
discharge was unlawful . Texas Meat Packers, Inc., 130
NLRB 279 (1961 ); Times Square Stores Corporation, 79
NLRB 361, 363-366 (1948). The challenge to his ballot
should be sustained.
I have sustained the complaint allegations that the fol-
lowing individuals who cast challenged ballots were dis-
charged to discourage union activity , in violation of Sec-
tion 8(a)(3) and ( 1) of the Act: Glen Wilcox, Russell
Hancock, James Neptune, J. E. Mayfield, Glen A. Vega,
John Delmas, Jr., and Bruce Hodge. It follows that their
ballots should be opened and counted . N.L.R.B. v. Wash-
ington Aluminum Company, Inc., 370 U.S. 9, 10, fn. 1
(1962); Old King Cole, Inc., supra; H & K Mfg. Co., 180
NLRB 247, 256 ( 1969).
2. The objections to the election
Should disposition of the challenged ballots fail to show
that a majority of the votes favored the Union, the election
should be set aside because of the unlawful termination of
employees Vega, Neptune, Hancock, Van Nathan, Gur-
chick, Wilcox, Parker, Hodge, Delmas, and Stafford; the
unlawful interrogation of Hancock ; and Montgomery's
statement to Delmas that Montgomery "`couldn't hire no-
body back right now until he found out what happened to
the union business ." 12 However, the election objections
should be overruled to the extent they rely on Mayfield's
unlawful layoff and the unlawful interrogation of Mayfield
and Vega, because all these events occurred prior to the
filing of the petition and, moreover, the Union's request to
proceed with the election, filed with the Board, included an
understanding that the Board could not entertain objec-
tions to the election based on preelection conduct.13
3. Recommendations regarding the representation case
It having been found that seven of the voters who cast
challenged ballots were eligible to vote and three were inel-
igible , it is recommended that the former ballots be opened
and counted and the challenges to the rest be sustained.
Should the final tally disclose that the Union failed to re-
ceive a majority, it is recommended that the election results
be set aside, that the representation petition be dismissed,
and that all prior proceedings thereunder be vacated.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
12 While this statement did not violate the Act because Delmas was then
a supervisor , his status at the time it was made would not likely affect its
impact upon him when he later voted in the election as an employee.
P3 Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278
(1961); Jones Packing Co., 159 NLRB 988, 1004 , enfd . 396 F.2d 801 (C.A. 6,
1968); Appleton Discount, Inc., d/b/a Treasure Island Food Store, 205 NLRB
394 (1973 ); cf. Deutsch Company, Metal Components Division , 178 NLRB
616, 617, enfd . 455 F.2d 902 (C.A. 9, 1971 ), cert. denied 405 U .S. 988 (1972).
965
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company has violated Section 8(a)(3) and (1) of
the Act by terminating the following employees to discour-
age membership in the Union: John F. Delmas, Jr., Mi-
chael Gurchick, Russell Hancock, Bruce Hodge, J. E.
Mayfield, James Neptune, Ronald E. Parker, Howard Staf-
ford, Ronald Van Nathan, Glen Vega, and Glen Wilcox.
4. The Company has violated Section 8(a)(1) of the Act
by interrogating employees about their union activity in a
manner constituting interference, restraint, and coercion.
5. The Company has violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union, which at all
relevant times has been authorized, by a majority of the
employees in the following appropriate unit, to represent
them for collective-bargaining purposes:
All employees engaged in the installation of sprinkler
systems on construction jobsites employed by the
Company at its Tampa, Florida location, but exclud-
ing office clerical employees, draftsmen, engineers,
shop employees, guards, and supervisors as defined in
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Company has not violated Section 8(a)(1) of the
Act by telling John Delmas, Jr., that it could not call em-
ployees back to work until it was known how the Union
was going to do in its organizing campaign among the
Company's employees.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 14
Independent Sprinkler & Fire Protection Co., its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Sprinkler Fitters and
Apprentices Local Union No. 821 of Florida, affiliated
with the United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the Unit-
ed States and Canada, or any other labor organization, by
laying off, discharging, or refusing to reinstate employees,
or in any other manner discriminating against employees
with respect to hire or tenure of employment or any term
or condition of employment.
(b) Interrogating its employees about their union activi-
ty in a manner constituting interference, restraint, or coer-
cion.
(c) Refusing to bargain with the Union as the exclusive
statutory representative of the employees in the following
unit:
14 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.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees engaged in the installation of sprinkler
systems on construction jobsites employed by the
Company at its Tampa, Florida location , but exclud-
ing office clerical employees , draftsmen, engineers,
shop employees , guards and supervisors as defined in
the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer the following employees reinstatement, and
make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them, in the
manner set forth in the section of this Decision entitled
"The Remedy for the Unfair Labor Practices :" John F.
Delmas, Jr., Michael Gurchick, Russell Hancock, Bruce
Hodge , J. E. Mayfield , James Neptune, Ronald E . Parker,
Howard Stafford , Ronald Van Nathan , Glen Vega, and
Glen Wilcox.
(b) Upon request , bargain collectively with the aforesaid
Union as the exclusive representative of the employees in
the above-described appropriate unit and embody in a
signed agreement any understanding reached.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports , and all other records neces-
sary or useful to an analysis of the amounts of backpay due
under the terms of this Order.
(d) Post at its places of business located at Jacksonville,
Florida , Tampa, Florida, and all locations where its em-
ployees are working , copies of the notice attached hereto
and marked "Appendix ."'S Copies of said notice, on forms
provided by the Regional Director for Region 12, after
being duly signed by an authorized representative of the
Company, shall , be posted immediately upon receipt there-
of, and maintained by it for 60 consecutive days thereafter,
in conspicuous places , including all places where notices to
employees are customarily posted . The Company shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by other material.
(e) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order , what steps
the Company had taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges unfair labor practices not herein found.
IT IS FURTHER ORDERED that the ballots to which chal-
lenges have been overruled be opened and counted; that
should the tally of ballots then disclose that the Union
received a majority , the Union be certified ; and that
should the tally of ballots then disclose that the Union
failed to receive a majority , the election be set aside, the
representation petition be dismissed, and all prior proceed-
ings held thereunder be vacated.
"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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence , the National Labor Relations Board found that
we, Independent Sprinkler & Fire Protection Co., violated
the National Labor Relations Act, and ordered us to post
this notice and to keep our word about what we say in this
notice.
The Act gives you the right:
To form, join, or help unions
To choose a union to represent you in bargaining
with us
To act together for collective bargaining or other
aid or protection
To refuse to participate in any or all of these
things.
The National Labor Relations Board has ordered us to
promise you:
WE WILL NOT lay you off , refuse to reinstate you,
discharge you, or otherwise discriminate against you
because you are a member of or have supported Sprin-
kler Fitters and Apprentices Local Union No. 821 of
Florida, affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and Pi-
pefitting Industry of the United States and Canada,
AFL-CIO, or any other union.
WE WILL NOT ask you questions about union activity
in a manner constituting interference , restraint, and
coercion.
WE WILL NOT refuse to bargain with Local 821 as the
only representative of the following unit of employees:
All employees engaged in the installation of sprin-
kler systems on construction jobsites employed by
the Company at its Tampa, Florida location, but
excluding office clerical employees, draftsmen, engi-
neers, shop employees , guards and supervisors as
defined in the Act.
WE WILL NOT in any other way interfere with, re-
strain , or coerce you in exercising the rights guaran-
teed to you by the National Labor Relations Act.
The National Labor Relations Board found we vio-
lated the law by terminating John Delmas , Jr., Mi-
chael Gurchick, Russell Hancock, Bruce Hodge,
J. E. Mayfield, James Neptune, Ronald E. Parker,
Howard Stafford, Ronald Van Nathan, Glen Vega,
and Glen Wilcox.
WE WILL offer to reinstate the 11 employees named
above to their former jobs without any loss of senior-
ity or other rights previously enjoyed, and WE WILL
reimburse them for any loss of earnings suffered be-
cause of their termination together with 6 percent in-
terest.
WE WILL, upon request, bargain with Local 821 as
the only representative of the unit described.
INDEPENDENT SPRINKLER & FIRE PROTECTION CO.