J. Herman Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1181 (N.L.R.B. 1978)

J. Herman Company, Inc., and Richard J. Haiden.
Case 21-CA-16378
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 1, 1978, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, to which Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, J. Herman Company. Inc.,
Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
J. HERMAN COMPANY, INC.
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these activities.
WE WILL NOT offer our employees the use of
our telephone to call their collective-bargaining
representative to express opposition to an im-
pending strike.
WE WILL NOT in any like or related manner
interfere with, restrain. or coerce employees in
the exercise of their rights protected by Section 7
of the Act.
J. HERMAN COMPANY, INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Los Angeles, California,
on May 25, 1978. The charge was filed by Richard J. Hai-
den, an individual, on February 6, 1978, and served on
Respondent on February 7, 1978. The complaint, which
issued on March 29, 1978, alleges that J. Herman Com-
pany, Inc., the Respondent, violated Section 8(a)(1) of the
National Labor Relations Act. as amended.
The principal issue herein is whether Respondent dis-
charged Haiden, an admitted supervisor. because he re-
fused to engage in unfair labor practices on behalf of Re-
spondent.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation with a facility lo-
cated in Los Angeles, California, is engaged in the business
of furnishing and installing heating, ventilating, and air-
conditioning equipment. Respondent, in the course and
conduct of its business operations, annually purchases and
receives goods and products valued in excess of $50,000
directly from suppliers located outside the State of Califor-
nia.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Sheet Metal Workers International Association Local
Union No. 108, herein called the Union. is. and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
73? NIlRR No 167
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ill. I'Hi ALI.I(I I) UNFAIR I.ABOR PRA('1TIC(ES
A. Facts
Respondent is engaged in installing air-conditioning
equipment which requires the installation of duct work and
other materials fabricated by Respondent in its shop. Re-
spondent employs approximately 20 employees in the shop
and approximately 50 employees in the field. Haiden is
shop superintendent; Ralph Mineo is the superintendent in
charge of all shop and field foremen or superintendents: J.
Herman is chairman of the board; Richard Pierce is pres-
ident: and Josh Keel is vice president.
Haiden worked for Respondent as a journeyman sheet
metal worker from May 1956 to May 1971, when he was
promoted to shop superintendent. As such, he supervised
shop employees in the fabrication of sheet metal items re-
quired by Respondent in its field operations and was re-
sponsible for ordering the sheet metal fittings and other ma-
terial required for the fabrication of ductwork, etc., and the
installation of air-conditioning equipment.
Respondent is a member, and represented for collective-
bargaining purposes in a multiemployer bargaining unit by,
the Sheet Metal and Air-Conditioning Contractors Associ-
ation. Pierce is president of the Association. Respondent's
employees were covered by a collective-bargaining agree-
ment between the Union and the Association which expired
on July 1, 1977.1 In early August, agreement had not been
reached on a new contract, and the Union scheduled a
strike to commence on August 15.
According to Haiden, on August 12, at around 9 a.m. or
9:30 a.m. in the conference room, Mineo, Haiden's immedi-
ate superior, told him, "Dick, I want you to call Kurt Nei-
dig2 at the [union] hall and tell him the strike is chicken shit
and we don't need it and we want you to tell your men one
at a time to use your phone and call him and tell him the
same thing." Haiden said, "Okay Ralph," and left.
About an hour later, according to Haiden, Mineo asked
him if he had talked to the employees. When Haiden re-
plied no, Mineo said, "I want you to talk to them right
now." Haiden replied, "Ralph, if I did something like that,
those men will file charges against me."' Mineo said, "I
want you to do it right now and if you can't follow instruc-
tions, I will find someone who will." Haiden said, "Ralph, if
you continue that way, I'm going to file charges against
you." Mineo said, "Go ahead, I want you to."
At about this time, according to Haiden, employee Frank
Williams approached. Haiden said, "Ralph repeat what
you just said." Mineo said, "if you don't do it I will do it
myself," and asked Williams, "Frank, what do you think of
the strike? Is it fair?" Mineo then walked over to where
some shop employees were working.
Williams testified that as Haiden and Mineo were coming
out of Haiden's office, Haiden called him over and told
Mineo to tell Williams what he had just said. Mineo said,
"you don't want the strike do you." Williams said it didn't
matter, he was not that concerned. Mineo said, "I am in a
All dales herein will be in 1977 unless otherwise indicated.
2 Neidig is business manager of the Union.
I Haiden. Donald Gentrs, and Mineo are members of the Union and are
admitted supervisors.
better financial condition than you are to withstand the
strike and I don't want it." Williams said, "Everybody has
their own opinion." Mineo then walked to the other end of
the shop.
Williams further testified that after he finished talking to
Haiden he returned to the other end of the shop, where
Mineo was talking to Shop Steward Nicholas Speleos.
Mineo then turned and spoke to a group of shop employ-
ees.4 He said that the phones in Haiden's office were avail-
able for them to call the union negotiating committee if
they had an opinion one way or the other on the strike.
Mineo said he did not want the strike. He thought it would
be hard on some people that could not afford it financially.
Speleos testified Haiden and Mineo were talking near
Haiden's office when Mineo called him over to them.
Mineo asked Speleos, don't you think it's a good idea for
the employees to make a phone call to the Union to facili-
tate the negotiations. Mineo then said let's try to get some-
thing going and they walked over to where some employees
were working. Speleos told the employees that the phone
was available if they wanted to call the Union to facilitate
the negotiations. Mineo said the phone was available. He
further said he was financially set, strike or no strike, but
there were a lot of people that were not able to keep up if
there was a strike.5
Employee Daniel Morales testified that he heard Mineo
tell Speleos, you are the shop steward. I want you to tell the
men the phone is available if they want to call the negotiat-
ing committee and stop the strike. A few minutes later,
Mineo said to a group of employees "I want to tell you guys
the phone is available if you want to call up and stop the
strike, because we don't want a strike, do we?" Morales said
"It's out of our hands." Mineo said "I am financially able
to withstand the strike, but I am thinking of the younger
guys." Mineo then said, "I don't want a strike, do you?"
Morales said "I don't much care."
Employee Jerry Patchin testified that Mineo said the
phones were available if they wanted to call the union nego-
tiating committee and try to do something about a strike or
put pressure on them to get it settled one way or the other.
Mineo further said some of the union members were not as
financially able to withstand a strike as he was and the
sooner they got it settled, the better off everyone would be.
Mineo testified that on the morning of August 12, when
he visited Respondent's Watts Health Center jobsite, he
talked to Charlie Lowden, a field foreman. Ronnie Ring-
wood, and Beale Ardoughty 6 during their coffeebreak. Low-
den asked Ardoughty what he knew about the strike.
Ardoughty said he really didn't know. Then Lowden asked
Mineo "Do you care if I call the Union and see if I can
straighten out the problem?" Mineo replied "Charlie. you
use your own judgment."7
According to Mineo, he left the jobsite between 10:30
a.m. and 10:45 a.m., went to the shop and talked to Haiden
4There were about five employees.
5 It was quite clear that Speleos did not recall exactly what was said.
6 It is Mineo's understanding that Ardoughty is on the negotiating com-
mittee.
7 Mineo testified that he learned later that Lowden did call the Union but
he has no knowledge that any other employee of Respondent called the
Union regarding the impending strike.
I 1 82
J. HERMAN COMPANY. INC.
between 11:00 a.m. and 11:30 a.m. about a problem on the
Watts jobsite regarding some missing materials. During
that conversation he mentioned the strike. Mineo's testi-
mony is rather confused at this point. When counsel for
Respondent asked who was present, Mineo replied "Just
Dick [Haiden] and I at the time-about the material. About
the meeting at the strike, it was strictly between Dick Hai-
den and myself." Counsel then asked "Tell us what you
said to Mr. Haiden and Mr. Gentr, about the telephone
[emphasis added]." Thereafter, Mineo included Gentry in
his account of the conversation.
As to what he said. Mineo testified on direct examina-
tion:
I had mentioned to them that I had just come back
from the Watts job and two fellows, Ronnie Ringwood
and Charlie Lowden, had said- asked me the question
if it would be all right to call the union and I told the
fellows-I told Dick Haiden and I told Don Gentry
that I had just come from there.
They asked me what I thought, and I said, "Use
your own judgment."
I did not force him to do it and I come in and I told
Dick Haiden what they told me.
"Use your own judgment. You are privy to use the
phone one at a time and you can do anything you
want."
I never forced him. I never asked him to tell the
men. I suggested that he go pro or con. I didn't care.
On cross-examination, he testified:
A. The only time that I talked to Dick Haiden is the
date that I come on a Friday and I believe it was Au-
gust the 12th and I had just come back from the Watts
job: and then discussed with him about the problem I
was having with material on the job. And then we dis-
cussed with Don Gentry and Dick Haiden and myself
about they were able to use the phone if they wanted
like with management's permission.
He said they would give their permisssion one at a
time.
Q. Didn't you tell Mr. Haiden if he wanted to tell
the employees they could use the phone if they wanted
to call the business manager of the union to see if they
could resolve the strike, they could?
A. I didn't say they had to do it.
I just told them that they could do it.
Mineo further testified that he does not recall whether
Williams was present, nor does he recall speaking to the
shop employees. However, he admits that he may have. He
denies having more than one conversation with Haiden re-
garding telephoning the Union. He further denies any con-
versation with Haiden around 9 a.m. in the conference
room. According to him, the conference room is used as
Keel's office. He further testified that Pierce told him it
would be all right to have the employees call the Union
regarding the strike.'
Donald Gentry. Haiden's assistant, who replaced him,
8 Speleos. Williams, and Morales testified that, later that day. Haiden told
each of them that Mineo told him to tell the employees to call the Union
regarding the strike.
testified that at about 10 aim. or 10:30 a.m. on August 12 he
was talking to Haiden in front of Flaiden's office when
Mineo came up. Mineo said what the tUnion and manage-
ment were arguing over and what was holding up negotia-
tions was a silly argument and no one really needed this
strike. He further said financially it would not brother him.
hut a lot of younger members could not afford to be on
strike. Mineo then said to Haiden, Tell all the members it
they would like to voice their opinion on the strike, the
phone will be available to call the Union pro or con on the
strike. Haiden made no response. Gentry walked away and
Haiden and Mineo went into Haiden's office. Later that
day, according to Gentry, Haiden told him he was not
going to tell anyone to make a phone call to the l nion.
Haiden never mentioned having an earlier conversation
with Mineo regarding telephoning the Union.
The strike was called off. Haiden did not learn this in
time to report to work on Monday. August 15. lie did work
on August 16. He started his vacation on August 17 and
returned to work on August 25. On the afternoon of Sep-
tember 9, according to Haiden. Mineo came into his office
and said. "Dick, I hate to do this but you are not working in
the best interests of the Compans and we are going to let
you go." Haiden asked why. Mineo said, ",ou are not get-
ting the job done." Haiden asked if Mineo thought replac-
ing him would make matters an, ditfferent. Mineo said he
did not know whether it would or not.
Richard Pierce, Respondent's president, testified that in
1971, when Haiden became shop superintendent. Respon-
dent's business was at a normal level. Haiden had the nor-
mal problems incident to learning the job. It requires ap-
proximately I to 2 years to learn how to properly handle
the job. One of the functions of the shop superintendent is
to order matenals-a stock of probably 150 different items.
Also, the shop superintendent takes orders from the field
foreman and is responsible for fabricating and delivering
the materials ordered to the jobsite at the requested time.
Thus, one has to learn which vendor gives the best deliver-
ies, which has the best price on which product: learn to
anticipate the flow of orders from the people in the field and
how to get them moving properly through the shop;' and
learn how to schedule and expedite delivery of the materials
to the jobsite. The latter involves not only the primary or-
ders but also change orders to meet unexpected problems
on the job or items the job foreman had neglected to in-
clude in the primary order.
According to Pierce, after 1-1/2 years, Haiden was still
having considerable problems. particularly as to scheduling
and timely delivery to jobsites. In mid-1973, Gentry was
hired to assist Haiden. His responsibility was to supervise
the operation of the yard where materials are assembled
and shipped to jobsites. Later in 1974, a direct phone line
was installed in the yard, and job firemen were instructed
to contact Gentry with their telephone orders., In 1974, the
building and construction industry experienced a slump,
which continued until early 1976. As a result, the number
of employees in Respondent's shop decreased from about
9 Haiden already knew how to control movement of an order through the
shop
O The bulk of material orders are written
1 83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20, until in 1975 there were only 3 or 4 employees in the
shop.
According to Mineo and Pierce, Haiden's performance
during the period of the slump was satisfactory. However,
when business began increasing in 1976, Haiden began to
experience the same difficulties with scheduling and timely
deliveries to the jobsite which had occurred prior to the
slump. Haiden admits that in the last 3 years Mineo and
Pierce have discussed his job performance with him, gener-
ally as to scheduling and furnishing of materials to jobsites,
and that Mineo and Herman questioned him as to a cost
overrun in late June or early July. He contends, however,
that these discussions involved normal production prob-
lems.
Haiden further testified that over the years he has com-
plained to Mineo at various times concerning a lack of co-
operation from field personnel, mainly that he was some-
times expected to meet impossible schedules. He denies that
Mineo ever complained regarding his performance on the
Watts Health Center job or that he was ever told that his
job performance might warrant termination.
Pierce admits that he never actually said to Haiden that
the problems he was having in production might be cause
for his termination. However, Pierce further testified that in
about February 1977 Mineo told him that he had told Hai-
den that if things did not straighten out it could eventually
lead to his termination. Also, Gentry testified that on four
or five occasions in 1976 and 1977" Mineo told him that he
was considering terminating Haiden and asked Gentry if he
would accept the job as shop superintendent. Gentry fur-
ther testified, without contradiction, that he reported each
of these conversations to Haiden.
Mineo contends that a basic factor in Haiden's poor per-
formance was his poor memory and his failure to write
down orders received on the telephone. Haiden admits that
Mineo did discuss with him the necessity for writing down
telephone orders and the use of a logbook. He further ad-
mits that about a year or a year and half prior to the hear-
ing herein, Mineo told him that he was receiving a lot of
pressure from Herman regarding the failure to deliver ma-
terial to jobsites on time, that the shop was not producing
as it should, and that Mineo would help Haiden resolve the
problem. Haiden also admits that Mineo said there had
been too many deliveries to a job."2
Pierce credibly testified that as the workload increased in
1976 and into 1977 he expressed to Mineo his dissatisfac-
tion with the operation of the shop and the number of com-
plaints he was receiving. According to him, general contrac-
tors were complaining that Respondent was not meeting
the completion schedule for duct work and that Respon-
dent's superintendent complained that their work was de-
layed because of difficulty in obtaining timely deliveries
from the shop.
The undenied testimony of Pierce, which I credit, is that
in August 1976 he, Keel, and Mineo met with Haiden. They
specifically discussed the problems of materials not being
" The last such conversation was the Lowden conversation a week or so
prior to Haiden's termination.
12 Haiden testified an excessive number of deliveries may be caused if he or
Gentry forgets to have ordered items placed on the truck or if certain re-
quired items were not ordered or were ordered incorrectly.
delivered to the jobsite on time and that when it was deliv-
ered, items would be missing which delayed the field crews
in making the proper installation. Haiden's basic response
was that he would try to improve. According to Pierce, it
was pointed out to Haiden in this conversation that he must
write down the items ordered and requested date of delivery
instead of relying on his memory. Haiden admitted that his
memory was not the best and said he would commence
making written notes of orders. Haiden further complained
of one job foreman who placed large rush orders over the
telephone. Pierce advised him to tell this foreman not to do
any detailing on the phone, that he must send in a detail
sheet as did the other foremen.'
Gentry testified that during the first part of June, Haiden
told him that Field Superintendent Walter Williams had
telephoned from the Watts Health Center job to inquire
why the ordered material was not at the jobsite and that he
told Williams the material had been delivered to the site.
Gentry said it was not at the jobsite, that work on the ma-
terial had not been finished. Later that day, Mineo asked
Gentry about the material. Gentry said it had never been
shipped. Mineo said Haiden told him it had been shipped.
Gentry said that was impossible, that they were still work-
ing on the material. Shortly thereafter, Mineo came into the
office and expressed his displeasure regarding the incident
to Haiden and Gentry. Mineo mentioned that the field crew
had spent a few hours looking for the material.
Haiden testified on cross-examination that he recalls that
Williams telephoned him regarding the materials, but that
he cannot recall whether he erroneously told Williams that
the material had already been delivered to the jobsite. He
further testified:
Q. Do you remember telling Mr. Gentry at that
time that Mr. Williams had called and asked you for
the material and you had lied to him and told him it
was on the way?
A. Absolutely not.
According to Gentry and Mineo, about the latter part of
August or the first week in September,'4 Field Foreman
Charlie Lowden and Mineo were in Mineo's office when
Gentry came in. They began discussing the problems of the
shop. They specifically mentioned the failure to meet sched-
ules and a recent incident' where ductwork was being in-
stalled in the attic. 6 Lowden said his crew had to work in
the attic space because materials were not delivered on time
from the shop. Mineo said the problem had to be straight-
"3 Detailing is the making of sketches or drawings, using the building blue-
print, of the ductwork and fittings required for the installation of the air-
conditioning system in a specific building. This is normally done on a detail
sheet which is delivered to the shop foreman. According to Pierce, Respon-
dent had 15 field foremen working on various projects, all of whom placed
orders for matenals.
14 Gentry first testified that this occurred in June or July, but after he was
shown his prehearing affidavit, given in March 1978, he testified that it was
a week prior to Haiden's termination.
I' It is unclear, but it appears that this incident may have occurred on the
same day as this conversation.
's Ductwork should be installed before the ceiling. Once the ceiling is in,
the cost of installing ductwork increases. If the ductwork is not completed on
time, another contractor will proceed to put the ceiling up and then the
installers have to work in a crawl space to install the ductwork, which re-
quires twice as much time.
1184
J. HERMAN COMPANY. INC.
ened out. that Respondent was already exceeding estimated
labor costs in the shop and now field labor was going to be
excessive. At that point. according to Mineo. Lowden told
him that his crew of four men had spent 6 hours on the
jobsite looking for material which Haiden said had been
delivered but which, in fact, had not been delivered."
Gentry testified that Haiden caused the duplication of
two entire floors of ductwork on one occasion in 1975 and
of one entire floor in 1976. This occurred because Haiden
forgot to mark on the detail sheets that a copy had been
made and assigned for fabrication, so another copy was
later made and sent through the shop. There is no evidence
that either Pierce or Mineo knew about the 1976 duplica-
tion. Mineo was asked if the duplication was discussed in
the conversation with Gentry and Lowden. However, he
answered in terms of the incident of the missing materials,
and this was never clarified on the record. Gentry testified
that he told Pierce about the other duplication incident
when Pierce questioned him regarding the extra material
which was stored in the yard.
Pierce testified that he became more and more dissatis-
fied regarding the problem emanating from the shop opera-
tion, that he told Mineo that the problems were getting
worse and someone was either going to straighten things
out or some severe changes would have to be made. In July.
he and Keel met with Mineo and advised him "you either
straighten out the problem with Dick Haiden and the prob-
lem he's having in running our shop or you change shop
foremen or superintendents, whatever is necessary. You get
the job done because we cannot go on this way." According
to Pierce. he had become very concerned because the shop
was beginning to exceed estimated labor costs on a frequent
basis. In the past, this occurred only on rare occasions.
Mineo testified that throughout Haiden's employment as
shop superintendent he counseled with him and tried to
make him understand the pressure he was receiving and
that it was important to get the material on the job. Accord-
ing to him, he thought if he kept working with Haiden. his
performance would become satisfactory.' s However, al-
though Haiden would improve for a time, he would revert
to his former habits, so that Mineo had to keep after him
continually.
Mineo further testified that he made the decision to dis-
charge Haiden the Friday he discovered the crew installing
ductwork in the attic space on the Watts Health Center job.
He mulled over the decision over the weekend and into the
following week without mentioning it to anyone. According
to him, he felt that he could no longer withstand the pres-
sure he was receiving from the field superintendent, Pierce.
and Herman and that the situation had reached the point
where it was either Haiden or him. He decided to protect
himself.' He then told Pierce he was going to discharge
Haiden and replace him with Gentry.
Pierce testified that, within a week following his dis-
charge, Haiden telephoned him and reminded him that at
the time he was promoted to shop superintendent Pierce
had promised that if he did not succeed in his new job he
7 The wage scale of the field crew was S18.81 an hour.
18 It is undisputed that Haiden is an excellent sheet metal cutter. It is also
undisputed that some problems are a normal incident to the job
19 Mineo testified that he explained this to Haiden when he discharged
him.
could be transferred back to his former job as a sheet-metal
journeyman. Pierce agreed that he had made this statement
but stated that he had never intended that it be a lifetime
guarantee. Rather. it was intended to hold for a period of
training. Pierce also stated that there were too many prob-
lems in the shop with deliveries and that he had learned
that the materials which Haiden advised him had been
shipped to the Watts Health Center jobsite was, in fact. still
in the shop at the time. Pierce further stated that the shop
was not making money on many projects and that shop
labor was exceeding estimates. Haiden replied that people
were ordering materials incorrectly and were making mis-
takes on the detail sheets. Haiden never mentioned the Au-
gust 12 conversation with Mineo regarding the use of the
telephone to call the Union.
Pierce also testified that during this conversation Haiden
requested that he be reemployed as a sheet metal cutter.
Pierce said there were certain problems which would be
caused by this. One would be difficulty in not usurping the
authority of the new, shop superintendent, even uninten-
tionally. because after being in charge for 6 years it could
be expected that employees would tend to go to Haiden
with their problems if Gentry was not immediately avail-
able. 1 he other problem would be Haiden's own psycholog-
ical diffuculty in adjusting to working with other employees
at the bench rather than supervising them. According to
Pierce. Haiden assured him that he could handle the situ-
ation and that it an employee approached him with prob-
lems he would refer him to Gentry. Pierce then said that as
far as he was concerned there was no reason why Haiden
could not return to work under those conditions but that he
would have to discuss the matter with Mineo and Gentry
and contact him later. Haiden testified in substantial agree-
ment, except that he places the conversation on November
29, after Haiden's second request to Gentry that he be re-
hired. I credit Pierce.20
Pierce testified that he did talk to Gentry. Gentry ex-
pressed qualms over rehiring Haiden. principally for the
reasons Pierce had expressed to Haiden. Pierce told Gentry
Haiden's response when he had raised the same issues and
told Gentry to discuss it with Mineo.
On September 16, Haiden went to the shop to return
some keys. He asked Gentry if he thought he might be
rehired. According to Haiden, Gentry told him Pierce had
told him that, although it was against his better judgment,
Haiden could be rehired as a cutter and that Gentry should
talk to Mineo. Gentry said, however, that he had heard that
Haiden had another job so he did not call Haiden and did
not talk to Mineo. At that point, according to Haiden, he
and Gentry agreed that they should wait awhile before Hai-
den attempted to return to work for Respondent.
Gentry testified that in the week following Haiden's ter-
mination, Pierce and Keel called him into the office and
asked him to consider hiring Haiden as journeyman. When
he expressed qualms, they left the decision to him but asked
him to discuss it with Mineo. The next day Mineo asked
him to consider rehiring Haiden. Thereafter, Gentry
20 As set forth below, Haiden testified that when he spoke to Gentry on
September 16 regarding reemployment Gentry said he had talked to Pierce
and that Pierce said Haiden could he rehired. This tends to corroborate
Pierce's testimony that Haiden had previously spoken to him regarding
reemployment.
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
learned that Haiden was employed elsewhere so he dropped
it.
In November, Haiden was laid off from his new job. On
November 29, he again asked Gentry for reemployment.
Gentry said he would have to talk to Pierce and then would
telephone Haiden. According to Haiden, the next day he
telephoned Gentry and asked if' he had talked to Pierce.
Gentry replied "Yes, they don't want you."
Gentry testified that he did speak to Pierce and told him
he did not want to reemploy Haiden. Pierce said it was
Gentry's decision but asked him to talk to Mineo. Gentry
told Mineo he did not like the idea of rehiring Haiden.
Mineo then called Gentry at home and asked him to recon-
sider. Gentry finally agreed. On rebuttal, Haiden's wife tes-
tified that on December 1 Mineo telephoned and told her
that if Pierce rehired Haiden he would leave.
Within the next few days, in December, union represen-
tatives came into the shop and told Gentry that Haiden had
complained to the Union regarding his discharge." There-
after Gentry did not follow up on his decision to rehire
Haiden. Mineo inquired if he had called Haiden. Gentry
said he had not called him yet. He then told Mineo that the
union representatives had been in complaining that Haiden
had been discharged because of his age. Gentry denies tell-
ing Mineo that he had decided not to rehire Haiden.
B. Conclusions
General Counsel contends that Mineo told Haiden to
telephone a union representative and tell him that the im-
pending strike was "chicken shit," ordered Haiden to tell
the employees to use Respondent's telephone to convey the
same message to the Union, and, in effect, threatened to fire
Haiden if he refused. Upon Haiden's refusal, Mineo solic-
ited the assistance of the union steward and proceeded to
tell a group of employees that Respondent's telephones
were available to telephone the Union with regard to the
strike.
The only dispute as to this incident is as to the precise
language used. Mineo, Gentry. and one employee called on
General Counsel's behalf testified that Mineo said the
phones were available if they wanted to call the Union and
express their sentiment, pro or con, as to the strike. One
employee testified that Mineo suggested telephoning if they
wanted to call and try to do something about the strike or
put pressure on the Union to settle the strike one way or
another. Another employee testified that Mineo suggested
telephoning if they wanted to stop the strike.
Mineo further said that he did not want a strike, that he
was financially able to withstand the strike, but that it
would be a financial hardship for some employees. I find
that even if Mineo used the words "pro or con," it was clear
from the timing and context of his statement that he was
encouraging employees to telephone the Union to express
opposition to the strike. It would not require a mental giant
12 Haiden testified that he discussed his discharge with union representa-
tives on December I and 2, which resulted in the institution of proceedings
before the Joint Adjustment Board. A preliminary hearing was held on Janu-
ary 5, and a formal Joint Adjustment Board meeting was held on February
16. On February 7, Haiden filed the charge herein and also filed a complaint
with the State Fair Employment Practice Commission alleging age discrimi-
nation. He is 55 years old.
to perceive that the only logical reason for Mineo to make
such a suggestion on the last workday before the scheduled
commencement of a strike, which he admittedly opposed,
was to encourage employees to express opposition to the
strike. Further, the suggestion was coercive in that he also
suggested that Respondent's telephone in Haiden's office be
used. Thus Respondent could tell which employees tele-
phoned and which did not.2 In these circumstances, I find
that Mineo's statements to employees regarding telephon-
ing the Union in regard to the strike was violative of Sec-
tion 8(a)( ) of the Act.
General Counsel also argues that Mineo, in effect, threat-
ened to discharge Haiden if he did not tell employees to
telephone the Union. Several weeks later he did discharge
Haiden, and therefore the discharge was motivated by Hai-
den's refusal to tell employees to telephone the Union re-
garding the impending strike.
I do not agree. Contrary to General Counsel, I do not
find that Mineo's statement to Haiden, "If you can't follow
instructions I will find someone who will," constituted a
threat of discharge. Rather, I find that Mineo was merely
stating that he intended that the proposed suggestion be
made to employees that day, and then he immediately pro-
ceeded to enlist the assistance of Union Steward Speleos.
Furthermore, it is apparent that Haiden did not perceive
this as a threat of discharge. Thus, although he told Gentry
and several employees of his conversation with Mineo, he
never mentioned that Mineo had threatened to discharge
him, nor did he make any reference to this in his conversa-
tion with Pierce following his discharge.
As to the timing of his discharge in relation to the August
12 incident, I find this merely' coincidental. I credit Pierce,
who impressed me as a reliable and candid witness, that
Haiden's work performance was unsatisfactory, that they'
had tried in various ways to improve that performance, and
that, even though he was an excellent mechanic, he failed to
master the critical planning and expediting aspect of his job
when the workload required the juggling of competing de-
mands from a large number of field projects, resulting in
cost overruns.
In reaching this conclusion, I have fully considered that
Haiden held his position for about 6 years. However, in this
regard, I note that about 1-1/2 to 2 of those years consti-
tuted what Respondent considered as a normal training pe-
riod and that Haiden performed satisfactorily during the
approximately 2 years that business was slow. All of this
could reasonably have lulled Respondent into thinking that
Haiden could master the intricacies of his job.
I also note that as field superintendent Mineo was instru-
mental in securing Haiden's promotion to shop superinten-
dent, which, after Mineo's own promotion to general super-
intendent, might well have given him an interest in trying to
work out Haiden's difficulties. I am not unmindful that su-
periors who have done the most in helping a subordinate
sometimes react strongly when the protege engages in what
is perceived as "disloyalty." However, the proposed con-
duct here, in the circumstances which prevailed, does not
22 In this regard, it is immatenal whether Mineo himself remained in the
area. Haiden and Gentry worked there and officers of Respondent were in
the area on occasions.
I 1186
J. HERMAN COMPANY. INC.
appear to have the potential impact on Respondent's labor
management relations which would generate such an in-
tense response.
Although neither Haiden nor Mineo impressed me as the
most reliable of witnesses, I do credit Mineo's testimony
that it had reached the point where he considered that fur-
ther protection of Haiden would put his own position in
jeopardy and that he decided he had best protect himself.
This is buttressed by Pierce's credited testimony that he had
become concerned about the increased frequency of cost
overruns attributable to the shop operation and that he had
told Mineo to change shop supervision or take whatever
steps were necessary but that the problem had to be re-
solved.
In these circumstances I conclude that the evidence is
insufficient to establish that Haiden was discharged for any
reason other than that alleged by Respondent-unsatisfac-
tory work performance. Accordingly. I find that Haiden's
discharge was not violative of the Act.
CONC I USIONS OF L1AW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers International Accociation L.ocal
Union No. 108 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By offering employees the use of its telephones to ex-
press opposition to an impending strike. Respondent has
violated Section 8(a)( I) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate Section 8(a)(1) of the Act
by its discharge of Richard Haiden.
Till RFliNu))Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of the
Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDERR2
The Respondent. J. Herman Company, Inc., Los Ange-
les. California, its officers. agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Offering its employees the use of its telephones to
telephone the Union to express opposition to an impending
strike.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act:
(a) Post at its facility in lios Angeles. California. copies
of the attached notice marked "Appendix."2" Copies of said
notice, on forms provided b) the Regional Director for Re-
gion 21, after being duly signed by Respondent's represent-
ative. shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicious places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken hb the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 21. in writ-
ing. within 20 days from the date of this Order, what steps
it has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec 10246 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 bv the Board and become its
findings. conclusions., and Order. and all objections thereto shall be deemed
waived for all purposes
24 In the event that this Order is enforced by a judgment of a . nited States
('ourt of Appeals, the words in the notice reading "Posted hby Order of the
National l.abor 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."
1187