Kelco Roofing

National Labor Relations Board - Board Decisions

Dec 28, 1983

268 N.L.R.B. 456 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelco Roofing, Inc. and Local Union 135, United
Union of Roofers, Waterproofers and Allied
Workers, AFL-CIO. Case 10-CA-17626
28 December 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 10 May 1983 Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.
Respondent Kelco contends, inter alia, in its ex-
ceptions, that there is no substantial record support
for the judge's finding that the Respondent,
through its president, John Kelly, violated Section
8(a)(1) of the Act by interrogating employee-appli-
cant 2 William Singfield Sr. about his membership
in the Union. We find merit in the Respondent's
contention.
The judge found that, on 28 October 1981, Sing-
field came to the Respondent's facility seeking em-
ployment as a journeyman roofer. According to
the testimony of the Respondent's president, Kelly,
and Singfield's repeated, direct testimony, the fol-
lowing exchange occurred: Kelly asked Singfield
where he had been working and Singfield named a
local roofing company that was widely known to
be unionized. Kelly then told Singfield, "Well, you
know we are non-union out here." On cross-exami-
nation Singfield repeated his conversation with
Kelly substantially as set forth above, but he then
added that Kelly asked him whether he was a
member of the Union.
The judge credited Singfield's later testimony
that Kelly had interrogated him about his union
membership. In making this credibility choice, the
judge found that it would have been "perfectly nat-
ural" for Kelly to have asked about Singfield's
union affiliation and that it is "unbelievable" that
i Member Zimmerman would adopt all of the judge's rulings, findings,
and conclusions and the recommended Order. For the reasons stated by
the judge, Member Zimmerman would accept the judge's credibility res-
olution and affirm the judge's finding that the Respondent violated Sec.
8
(aXI) of the Act by interrogating employee Singfield about his member-
ship in the Union. See his dissenting opinion in Herbert F Darling. Inc.,
267 NLRB 476 (1983).
2 Singfield was applying for a job at the time of the alleged interroga-
tion and was employed by the Respondent on that same day.
268 NLRB No. 63
Kelly "simply volunteered the observation that Re-
spondent was still non-union." 3
The Supreme Court has noted that a judge's
findings are of consequence "to the extent that ma-
terial facts in any case depend on the determination
of credibility of witnesses as shown by their de-
meanor or conduct at the hearing."4 The Court has
further stated that "[t]he substantiality of evidence
must take into account whatever in the record
fairly detracts from its weight." 5 Here, the judge's
findings are not based on his observation of the
witnesses' demeanor, but, rather, on his assessment
of the inherent probability of the conflicting testi-
mony. The judge is in no better position than the
Board to assess inherent probabilities and the
Board is not bound by credibility determinations
based on such assessments.
We cannot agree with the judge that Kelly's ver-
sion of the conversation which was corroborated
by the Respondent's vice president, Long, and by
Singfield's direct evidence was "unbelievable." Nor
can we agree with the judge's finding that Sing-
field's later, uncorroborated account of the conver-
sation on cross-examination is "natural and logi-
cal." Where, as here, an administrative law judge's
credibility choice is based on an illogical or inad-
equate rationale, the credibility resolution itself
must fall.6 Accordingly, we reverse the judge's
finding that the Respondent violated Section
8(a)(1) of the Act by interrogating employee Sing-
field about his membership in the Union.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3 and renumber the
subsequent Conclusions of Law accordingly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Kelco Roofing, Inc., Altanta, Georgia,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Delete paragraph l(a) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
I Singfield had previously been employed by the Respondent.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).
Id. at 488.
Custom Recovery v. NLRB, 597 F.2d 1041, 1045 (5th Cir. 1979). See
also NLRB v. E-Systems, 642 F.2d 118, 121 (5th Cir 1981).
456
KELCO ROOFING
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge our employees because
of their activities on behalf of, and in support for,
the Union or any other labor organization.
WE WILL NOT assault representatives of the
Union or any other labor organization in the pres-
ence of employees, thereby restraining and coerc-
ing employees in the exercise of their rights under
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Henry Hooks and William Sing-
field Sr. immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify Henry Hooks and William Sing-
field Sr. that we have removed from our files any
reference to their discharges and that the dis-
charges will not be used against them in any way.
KELCO ROOFING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge: This
case was heard before me on August 25, 26, and 27,
1982, in Atlanta, Georgia. It originated from a charge
filed on November 9, 1981,1 in the above-captioned case
against Kelco Roofing Company, Inc., herein called the
Respondent, by Local Union 135, United Union of Roof-
ers, Waterproofers and Allied Workers, AFL-CIO,
herein called the Union.
On December 15, a complaint and notice of hearing
issued alleging that the Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act, by various acts and con-
duct, including discharging employees Henry Hooks and
William Singfield, Sr., on November 5, 1981. In its
answer to the complaint, the Respondent admitted cer-
tain allegations, including the filing and serving of the
I Unless otherwise specified, all dates herein refer to 1981.
charge, its status as an employer within the meaning of
the Act, and the status of the Charging Party as a labor
organization within the meaning of the Act. The Re-
spondent denies that it discharged Hooks and Singfield,
and further alleges alternatively that if it did discharge
them its actions on November 6 constituted an offer to
rehire Hooks and Singfield. The Respondent denies
having engaged in any conduct which would constitute
an unfair labor practice.
At the trial herein, all parties were represented and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Following the close of the trial, both parties timely filed
briefs with me which have been duly considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I make the following
FINDINGS OF FACT
1. IURISDICTION
Kelco Roofing Company, Inc., is a Georgia corpora-
tion whose principal office and place of business is locat-
ed in Atlanta, Georgia. In business since 1973, it is pri-
marily engaged in reroofing existing buildings and roof-
ing new ones.
During the past calendar year, which period is repre-
sentative of all times material herein, the Respondent
performed services valued in excess of $50,000 directly
for customers located outside the State of Georgia and
purchased and received at its Atlanta facility finished
products valued in excess of $50,000 directly from sup-
pliers located outside the State of Georgia.
The Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local Union 135, United Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Allegatiors and Issues
The complaint alleges that on or about October 27,
1981, the date Singfield applied for work with, and was
hired by, the Respondent, the Respondent's president,
John Kelly, interrogated Singfield about his union mem-
bership. It also alleges that, on or about November 5,
Kelly assaulted and battered union representative John
O'Neal in the presence of employees and, on that same
day, discharged Henry Hooks and William Singfield, Sr.,
because of their activities on behalf of, and support for,
the Union. In simplest terms, counsel for the General
Counsel argues that, when the Respondent observed
Hooks and Singfield talking to O'Neal on the sidewalk
adjacent to the Respondent's facility on the morning of
November 5, the Respondent immediately discharged
Hooks and Singfield and then proceeded to assault
O'Neal in their presence.
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent admits that Singfield and Hooks were
sent home that morning, but argues that this had nothing
to do with their talking to O'Neal. Rather, the Respond-
ent argues that they were sent home solely because rain
was predicted for that day and reroofing cannot be done
in the rain. As previously noted, the Respondent also
argues that, even if it discharged Hooks and Singfield on
November 5 for proscribed reasons, it nevertheless of-
fered them reinstatement on the following day. The Re-
spondent further denies both the alleged interrogation
and the assault.
B. The Alleged Interrogation
On October 28, 1981, William Singfield, Sr., herein-
after called Singfield, went to the Respondent's facility
looking for work as a journeyman roofer. Singfield had
worked for the Respondent in the past. On October 28,
Singfield spoke to John Kelly, Respondent's president;
Michael Long, its vice president; and Jim Ripley, who
now does most of the hiring for the Respondent. Ac-
cording to Singfield, during the conversation with Kelly,
Long, and Ripley, and after he was told that work was
available, Kelly asked Singfield where he had been
working. Singfield responded that he had been working
at Sanders, a roofing company in Atlanta where employ-
ees are represented by the Union. According to Sing-
field, Kelly asked, "Are you a member of the Union?"
Singfield replied, "Yes." Kelly then responded, "Well,
you know we are non-union out here."
Kelly denies asking Singfield if he was a member of
the Union. Kelly claims that, during the conversation be-
tween Singfield, Ripley, Long, and himself, Kelly simply
remarked to Singfield that the Respondent was still non-
union. According to Kelly, his reasons for doing so were
that Singfield had worked for the Respondent in the past
and he simply volunteered the statement to Singfield as
an observation.
I credit Singfield. His version is more believable and
logical. Particularly since Singfield had worked for the
Respondent in the past, it would have been natural for
Kelly to ask where Singfield had been working recently.
When Singfield told Kelly that he had been working at
Sanders, a firm which Kelly knew to be union, it would
be perfectly natural for Kelly to ask if Singfield was now
a member. Kelly's suggestion that he simply volunteered
the observation that the Respondent's was still nonunion
is unbelievable. It stands isolated and out of context,
whereas Singfield's version is natural and logical. I credit
Singfield that the conversation occurred as related by
him.
C. Events of November 5
On November 5, 1981, Union Representative John
O'Neal went to the Respondent's facility at approximate-
ly 6:30 a.m. He stationed himself on the sidewalk near
one of the gates leading to the Respondent's premises,
and, as employees began arriving at work that morning,
he distributed authorization cards to employees. Some
employees, including Singfield and Hooks, stopped and
spoke to O'Neal for a few minutes and filled out union
authorization cards on the spot.
Long admits that at approximately 7:15 a.m. he re-
ceived a telephone call from Don Palmieri, part owner
of Fulton Roofing Company, who told Long that O'Neal
was in front of Kelco, and it appeared that he was trying
to keep Kelco employees from going to work. After the
call from Palmieri, Long watched O'Neal talking to sev-
eral of the Respondent's employees. Whether he did so
immediately or whether he first informed Kelly of Pal-
mieri's call, Long approached O'Neal and told O'Neal
not to come onto company property. According to
Long, he approached O'Neal immediately without telling
Kelly about the call from Palmieri. In Long's version of
the facts, this is significant because Long claims that as
he was walking back to the facility and before he had a
chance to tell Kelly either about Palmieri's call or about
O'Neal's presence, Long overheard Kelly tell Singfield
and Hooks that they were not needed that day.
All witnesses agree that, after Singfield and Hooks
stopped and spoke to O'Neal and signed authorization
cards, they proceeded through a gate and down a drive-
way toward the Respondent's facility. As they proceed-
ed down the hill, Singfield and Hooks met Kelly, who
was walking up the driveway toward the gate. Singfield,
whom I credit, testified that as they met Kelly stated to
him, "What was that all about? I told you when you first
came over here that I was non-union. Well, I don't think
you ought to change clothes, I think you ought to get
your ass over to one of them union companies." I also
credit Hooks that Kelly then asked him what he had
been doing and what he had been filling out, and Kelly
then stated he could not use union help, that Hooks
should go to Tip Top, Kaiser, or Sanders, three union
firms in the Atlanta area. I do not credit Long's testimo-
ny that, as he returned to the facility after speaking to
O'Neal, he overheard Kelly tell Singfield and Hooks
they were to go home because there would be no tear-
off that day. Nor do I credit Kelly's denial of the state-
ments attributed to him by Singfield and Hooks or his
version of that conversation.
My reasons for crediting Singfield and Hooks and dis-
crediting Long and Kelly are many. Long's displeasure
with the fact that O'Neal was confronting the Respond-
ent's employees as they came to work is evident from
the fact that he confronted O'Neal and told O'Neal to
stay off of the Respondent's premises. The natural reac-
tion by Long to the call from Palmieri and to seeing
O'Neal confront employees would be to report this im-
mediately to Long's superior, Kelly. The testimony of
Singfield and Hooks, which I credit, suggests that this is
precisely what Long did. This reaction would be particu-
larly normal where, as in the instant case, Long had
reason to know that Kelly was not far away having a
meeting held daily about that time with production su-
pervisors to discuss and coordinate the day's work. I do
not credit Long's testimony that, after the telephone call
from Palmieri, he went immediately to talk to O'Neal.
The credited testimony of Singfield and Hooks shows,
and on the basis of it I conclude, that at the time Kelly
confronted Singfield and Hooks in the driveway, Kelly
knew that they had been engaged in union activities.
Further, I find contrary to the Respondent's argument
458
KELCO ROOFING
that Kelly's statements to Singfield and Hooks did con-
stitute their discharge.2
Based on record testimony, it is impossible to deter-
mine with precision what happened on a moment-by-
moment basis after Kelly confronted Singfield and
Hooks in the driveway. The testimony of every witness,
including Kelly, Long, O'Neal, Singfield, Hooks, and
employee Sam Brunson, varies in one or more significant
respects from every other witness. It was evident that
every witness desired to have his testimony fit like a
puzzle, positive in every detail and aligned and consistent
with the testimony of other witnesses testifying for the
same party. The reason for this was obvious, for the Re-
spondent's counsel and later the General Counsel spent
inordinate amounts of time cross-examining every wit-
ness about his whereabouts and the whereabouts of
every other person throughout each moment of the ensu-
ing confrontation between Kelly and O'Neal. I was not
particularly impressed with this approach from either
counsel, for the ability of any given witness not to
become confused or to contradict the testimony of other
witnesses about such minute details oftentimes is not so
much a reflection of their credibility as it is a reflection
of their pretrial preparation. I do not think it is either
necessary or helpful to detail the testimony of each wit-
ness regarding what took place in the next few minutes
after Kelly discharged Singfield and Hooks. What is
clear is that Singfield and Hooks left the Respondent's
premises while Kelly, with Long, went and confronted
O'Neal.
My findings regarding that confrontation are based on
the credited testimony of O'Neal and Hooks, who I con-
clude witnessed the entire incident. Hooks testified to
having witnessed the incident, and the fact that he was in
a position to do so is verified by Kelly. I do not rely on
the testimony of Singfield which suggests that at some
point during the confrontation both he and Hooks may
have been across the street from where the incident was
taking place. Rather, I conclude from the testimony of
Hooks and Kelly that Hooks was on the same side of the
street as O'Neal and Kelly, waiting at a bus stop to go
home after being discharged by Kelly. I do not rely on
Singfield's testimony in resolving what transpired be-
tween Kelly and O'Neal, even though Singfield's testi-
mony about a statement made by Kelly to O'Neal is
practically identical to O'Neal's testimony. Considered as
a whole, Singfield's testimony about the confrontation
between Kelly and O'Neal is so indefinite and confusing
that I simply cannot rely on it in making any findings.
Nor do I rely on the testimony of employee Sam Brun-
son who claims he witnessed the entire greeting and con-
versation between Kelly and O'Neal while variously
standing and sitting many yards away perched atop a
truck into which he was loading hot tar. I simply did not
believe much of anything Brunson proffered.
I credit O'Neal that Kelly approached him, asked
O'Neal what he was doing there, and then told O'Neal,
"Get your goddamn ass off my property. I'll blow your
goddamn ass off." Simultaneous with and following these
statements, Kelly used his stomach or belly to bump into
2 See Sentry Investigation Corp., 249 NLRB 926, 927 (1980); Du-Tri Dis-
plays, 231 NLRB 1261. 1266 (1977).
O'Neal repeatedly. The fact that Kelly did so is corrobo-
rated by Hooks, who impressed me as a trustworthy wit-
ness. Hooks readily admitted on cross-examination, for
example, that he was standing behind Kelly and there-
fore could not actually see Kelly's stomach make contact
with O'Neal. While the Respondent argues that Hooks
therefore could not have witnessed the significant event,
I conclude otherwise, for as a practical matter the push-
ing out of one's stomach tends to'create a spinal move-
ment equally visible from the rear. That motion and
O'Neal's reaction to it make Hooks a worthy witness to
the incident. I credit O'Neal that after Kelly bumped
O'Neal several times with his stomach, Kelly then
grabbed O'Neal in a tight grip, a "bearhug," and lifted
O'Neal off the ground.
Kelly's and Long's version of what took place struck
me as having been fabricated. Long claimed Kelly did
not strike O'Neal with his belly, but rather gave O'Neal
a series of friendly slaps on the shoulder, using both
hands. Long testified that O'Neal smiled in response and
did not react with fear. Kelly, on the other hand, testi-
fied that O'Neal went limp "like he was going to defend
himself." I do not for one minute believe that the Re-
spondent thinks anyone so naive to accept its argument
that Kelly, president of a small and always nonunion
company, would approach O'Neal, an individual who
had worked for the Respondent in the past and who had
since become union business agent soliciting the Re-
spondent's own employees in front of its facility, with
great friendship and fondness to be displayed with such
open affection. It is correct, as the Respondent notes,
that the overall conversation between Kelly and O'Neal
lasted much longer, perhaps as long as 10 to 15 minutes,
than it would have taken, and did take, for Kelly to as-
sault O'Neal as described above. It is also clear that at
some point O'Neal went across the street from where
Kelly confronted him, obtained something from his
truck, returned to where Kelly and Long were standing,
and continued further discussion with them. No witness,
however, provided detail about what took place after
O'Neal went to his truck or what it might have been that
he went to get. Those matters are left to pure specula-
tion. Why O'Neal went to his truck and what took place
after he returned, however, is not critical to my resolu-
tion of this case and would not alter my crediting O'Neal
and Hooks about Kelly's statement and actions when he
first confronted O'Neal.
D. Events of November 6
Singfield and Hooks returned to the Respondent's
premises on the morning of November 6 to collect their
paychecks and for Hooks to get his work clothes from
the change room. Hooks arrived first about 7:10 or 7:15
a.m. Hooks went into the shop, saw Long, and asked for
his paycheck. Long said he could not have it until 4:30
that afternoon, the regular pay time. A few minutes later,
Singfield arrived. Thereafter, Long had a rather ex-
tended conversation with Hooks and Singfield. Part of
the conversation dealt with the fact that Hooks and
Singfield were not prepared to go to work that day and
why. During this conversation, which took place in the
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee change room, Kelly walked by on his way out
to the workyard. Kelly asked Hooks if he was going to
work. Hooks replied he was not prepared. Singfield did
not reply to Kelly's question. Kelly then turned immedi-
ately and walked out into the workyard. Long continued
his conversation with Hooks and Singfield. During the
conversation, Long prepared and had Hooks sign a state-
ment which reads:
11-6-81 Friday 8 a.m.
I, Henry Hooks reported to work at Kelco but did
not want to work. I wanted my check early.
/s/ Henry Hooks
Wit: Michael E. Long
Also during this conversation, Long made the observa-
tion to Singfield that Singfield had never been asked to
fill out an application when he came to work. Long gave
Singfield an application form and asked him to fill it out.
Singfield did so, but refused to sign it. He then gave it
back to Long. After Hooks signed the statement pre-
pared by Long, Singfield filled out the application form,
and both were told they could not get their paycheck
until 4:30 that afternoon, Hooks and Singfield left.
Such are the uncontested facts regarding what took
place on the morning of November 6. Long's testimony
regarding his conversation with Hooks and Singfield is
intended to carry the inference, and be the support for
the Respondent's argument, that Hooks and Singfield
were not fired but quit and/or were offered reinstate-
ment. Long testified as follows. The conversation with
Hooks began at 7:10 or 7:15 a.m. Hooks simply told
Long he was not going to work and he just wanted his
check early. Long had Hooks sign a statement to that
effect, and it was not until later that Hooks told Long he
could not work because he was not prepared since he
had been discharged the previous day. Long before that,
Singfield arrived and entered the conversation. Long
placed Singfield's arrival "just maybe five minutes" after
Hooks. At approximately 7:30 a.m., Kelly walked by and
asked Hooks and Singfield if they were ready to go to
work. Hooks replied he was not prepared to work; Sing-
field said nothing. Kelly turned and left. Long continued
to press Hooks and Singfield for a reason why they were
not going to work, and it was not until then Hooks and
Singfield told him they could not work because they
were not prepared since they had been fired the previous
day. According to Long's version, it was well after he
had Hooks sign the statement saying Hooks "did not
want to work" that Hooks finally told him he had been
fired the previous day. I am convinced, however, that
long is not telling the truth about significant facts, and
this is revealed by the statement which Long prepared
and had Hooks sign. In the upper right hand corner,
Long put the time "8 a.m." Thus a comparison of Long's
testimony and the statement shows he prepared the state-
ment long after he had been told by Hooks and Singfield
they had been fired the previous day. I do not credit
Long's assertion that either Hooks or Singfield came in
on the morning of November 6 and asked for their pay-
checks but did not tell him they had been fired the previ-
ous day. Rather, I conclude that, when Hooks asked for
his check, Long simply told him he could not have his
paycheck until 4:30 that afternoon. Whenever Long may
have asked Hooks why he was not working that day,
Hooks told him he was not prepared because he had
been fired the previous day by Kelly and he came in that
morning only to get his paycheck. After being fully
aware why Hooks had come in that morning to get his
check, at 8 a.m. Long prepared the statement quoted
above which he somehow convinced Hooks to sign.
I also find it significant that Long went to the extreme
of having Hooks sign such a statement. It is evident from
the outset that Long's purpose was to create evidence.
Otherwise, there was simply no reason to have Hooks
sign such a statement. The question arises why Long was
interested in creating evidence. If Hooks simply quit, as
the Respondent claims, there was no need for Long to
go to that extreme. Further, if Long really believed that
Hooks was voluntarily quitting and a record of that fact
was desired, Long could just as easily have said on the
statement which he asked Hooks to sign that Hooks was
"voluntarily quitting." From all the facts, I conclude
that, when Long had Hooks sign this statement, Long
knew full well that Hooks had been discharged the prior
day by Kelly, and Long was attempting to create evi-
dence which might protect Kelly by making it look like
Hooks was quitting on the morning of November 6.
After Hooks and Singfield left the Respondent's prem-
ises on the morning of November 6, Long conducted an
"investigation" into Singfield's work record. Long, who
admitted that personnel matters were not normally a part
of his duties, made what the Respondent in its brief
admits was a "thorough investigation" of Singfield. Long
made a special trip out to the jobsite where Singfield had
been working to speak to the foreman on that crew. Al-
though Long admitted that it was up to the foreman on
the crew to assign employees their job for the day, Long
testified that he was told by the foreman on Singfield's
crew that Singfield was in the habit of "choosing" a la-
borer's job over that of a journeyman roofer. After this
investigation, Long returned to the Respondent's facility.
The Respondent did not call the foreman as a witness. In
addition to the internal inconsistencies in Long's testimo-
ny about the responsibility to assign work as compared
to Singfield's choosing easier duties, the fact that Long
conducted this "investigation" into Singfield's work is
highly suspicious. As I have indicated above, and as
Long himself admits, personnel matters of this type are
not within the normal parameters of his job. Rather, per-
sonnel matters are normally conducted by General Su-
perintendent Jim Ripley. There is a striking similarity be-
tween the evidence gathering aspect of Long's admitted-
ly unusual investigation and the evidence gathering
aspect of the statement which Long prepared and had
Hooks sign. Long's rather obvious efforts at building a
case against both Hooks and Singfield belies the Re-
spondent's claim that it thought Hooks and Singfield had
quit and simply wanted their paychecks early.
Sometime in the afternoon of November 6, O'Neal
telephoned the Respondent to protest Hooks' and Sing-
field's discharges. O'Neal spoke to Long, who told
O'Neal they had not been discharged, but that their jobs
460
KELCO ROOFING
were being evaluated that day. According to Long, late
in the afternoon on November 6, he and Doris Kelly,
whose status with the Respondent is not identified, re-
viewed Hooks and Singfield. Long described this
"review" as follows:
[W]e reviewed both employees; both of them had
refused to work that morning; one wasn't doing the
job fully, as he was hired for; and, the other one
had laid out of work, and did not call in, or give an
excuse or anything, and then based on that we felt
that-and, with the refusing to work, that they ter-
minated themselves.
Based on this review, Long had "Separation Notices"
prepared for Hooks and Singfield which on their face in-
dicate they were given to them that day. The "Separa-
tion Notice" given to Hooks states the following as the
reasons for his separation:
Employee refused to work on the morning of
11/6/81. Employee failed to report to work or call
employer's office on 11/4/81. Employee was hired
on a trial basis. ·
The "Separation Notice" given to Singfield provides
the following as the reasons for his separation:
Employee refused to work on the morning of
11/6/81. Employee was hired on a trial basis. Em-
ployee said and was hired as a journeymen roofer.
Was not determined to be a journeymen roofer.
For reasons which have already been touched on
above, I find that the Respondent's argument that Hooks
and Singfield quit simply incredible. Even though in
Long's testimony he still maintains that Hooks and Sing-
field "terminated themselves," it is apparent even from
his testimony that in fact the Respondent discharged
them, if not on November 5 then on the afternoon of
November 6. The "Separation Notices" prepared by
Long belie any claim that the Respondent actually be-
lieved Hooks and Singfield quit. These "Separation No-
tices" enumerate such a litany of shortcomings on the
part of Singifield and Hooks that they were clearly in-
tended to support a discharge. The Respondent's attempt
to build a case against Hooks and Singfield has already
been noted and is equally obvious from the "Separation
Notices" given to Hooks and Singfield. In fact, a brief
picture of Long's activities on November 6 suggest that
he spent the entire day attempting to document just
cause for discharging Hooks and Singfield. When Hooks
and Singfield came to get their checks the morning of
November 6, sometime around 7:15, Long engaged them
in a conversation about their reasons for not working
that day which lasted until sometime after 8 when Long
prepared the statement for Hooks saying he did not want
to work. Long then made a special trip to the jobsite
where Singfield had been working in order to talk to the
foreman about Singfield's work. Later in the day, Long
spoke to O'Neal for some period of time about. Hooks'
and Singfield's status. The "Separation Notice" given to
Hooks also reveals that at some point, and through some
means of investigation, Long determined that Hooks had
not reported for work and had failed to call in Novem-
ber 4. In addition to all of this activity, Long also con-
ducted a "review" of Singfield and Hooks with Doris
Kelly during which it was determined that they had
"terminated themselves." Finally, Long had "Separation
Notices" prepared for Hooks and Singfield which he re-
viewed and signed. All of this was completed by 4:30
p.m. when Hooks and Singfield returned for their pay-
checks as they had been instructed to do by Long. All in
all, the "investigation" of Singfield conducted by Long
and the litany of shortcomings listed on Hooks' separa-
tion notice indicate that Long was simply attempting to
bolster the Respondent's position and justify their dis-
charges.
E. The Respondent's Position
Kelly testified that on the morning of November 5,
1981, there was a predicted 80-percent chance of rain.
He claimed that solely on the basis of that prediction,
before he knew anything of O'Neal's presence at the fa-
cility, he decided to send Hooks, Singfield, and other
employees home for the day. I discredit Kelly's claim.
The weather reports and predictions for November 4,
5, and 6, 1981, of which I take judicial notice, suggest
that Kelly is overstating the situation considerably.
The Atlanta Constitution for the morning of Novem-
ber 5, 1981, quotes the weather prediction in relevant
part as follows:
Thursday [November 5] in Georgia will be cloudy
with showers across the entire state. Highs will
range from near 70 in the north to the mid 70's in
the south ....
In metropolitan Atlanta, there is a 70 percent
chance of showers ....
There is, of course, a substantial difference between
predicted showers and a prediction of rain. The Atlanta
Journal for the evening of November 4, 1981, quotes the
National Weather Service as predicting only a 30-percent
chance of rain for Thursday, November 5. That forecast
continues in relevant part:
Cloudy skies and mild temperatures are forecast for
metropolitan Atlanta Thursday, according to the
National Weather Service.
The November 4 ending Atlanta Journal also reflects
that the high temperature on Tuesday, November 3, had
been 71 degrees and that rainfall in the past 24 hours had
equaled .00 inches. For the evening of November 5, the
Atlanta Journal reflected that the high temperature on
Wednesday, November 4, had been 71 degrees and that
rainfall in the past 24 hours had equaled .00 inches. For
Friday evening, November 6, the Atlanta Journal report-
ed that for Thursday, November 5, the day that Hooks
and Singfield were discharged, the high temperature was
77 degrees and that rainfall during the past 24 hours was
an immeasurable "trace."
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are also other reasons for my not believing
Kelly that the prediction of rain had anything to do with
sending Hooks and Singfield home on November 5.
First, the Respondent presented no corroborating testi-
mony from any of the other employees who were sup-
posedly sent home with Singfield and Hooks on Novem-
ber 5 because of the predicted rain. From the Respond-
ent's failure to call such employees as witnesses I draw
the adverse inference that other employees in fact were
not sent home that day for that reason. Second, I note
Kelly testified that on the morning of November 5, be-
cause of the predicted rain, he made plans to work two
crews, one under Foreman Artie West and one under the
supervision of Ricky Wilson. West and his crew had pre-
viously been working on a project involving roofing a
new building where predicted rain is not a particular
problem. Wilson and his crew had been working on a
reroofing project where, according to Kelly's testimony,
the prediction of rain is a major concern because of po-
tential water damage to the contents of the building
being reroofed. Kelly testified that, in view of the pre-
dicted rain, on the morning of November 5 he instructed
West to take a few employees to the new roofing project
and instructed Wilson to take a few employees to do
cleanup at the reroofing project. Kelly further testified
that only laborers are sent to do cleanup work.
Beginning on November 4, however, Singfield was re-
assigned from Wilson's crew to West's crew, which was
working on the new roofing project where rain was not
a major concern. Thus, there was no logical reason for
sending Singfield home on November 5 because of the
concern for rain. Further, Hooks was a laborer, which
were the people sent with Wilson to do the cleanup
work at the reroofing project. Thus, by the Respondent's
own reasoning, it was not people such as Hooks but
rather journeyman roofers on Wilson's crew who should
and would have been sent home on November 5 because
of the concern of rain.
All in all, the Respondent's reliance on predicted rain
as the reason for sending Hooks and Singfield home on
November 5 strikes me as a contrivance manufactured by
the Respondent, after-the-fact in order to attempt to
mask the real facts. Consequently, I reject the Respond-
ent's claim that a prediction of rain played any part in
the reason for Hooks or Singfield being sent home on
November 5.
F. The Respondent's Affirmative Defense
The Respondent contends that, even if it discharged
Singfield and Hooks unlawfully on November 5, it of-
fered them reinstatement on the morning of November 6
and thus has fulfilled its remedial obligation under the
Act. I reject the Respondent's argument for three rea-
sons.
While it is clear, as the Respondent argues, that when
Singfield and Hooks returned to the Respondent's facility
on the morning of November 6, both Long and Kelly
asked Singfield and Hooks if they were going to work,
there is no indication that either actually extended an af-
firmative offer of reemployment. At best, the inquiries of
Long and Kelly are little more than casual inquiries. In
my view, they cannot be said to constitute an offer of re-
instatement which would serve the remedial purposes of
the Act for there is no indication that these casual inquir-
ies gave Singfield or Hooks reason to believe they were
actually being offered their jobs back.3
Further, it is apparent that, even from the Respond-
ent's position, this would-be offer of reinstatement was
intended to be acted on immediately by Singfield or
Hooks or be lost. Having been fired the previous day,
neither Singfield nor Hooks came to the Respondent's fa-
cility on the morning of November 6 ready to go to
work. Singfield had taken his work clothes with him
when he left on November 5. Hooks had not brought
lunch money. Even if Singfield and Hooks could have
been able to work on November 6 by making some self-
sacrifice, the Respondent cities no authority for the prop-
osition that it can demand that Singfield and Hooks
return to work immediately or lose their reinstatement
rights under the Act. The Board has consistently held to
the contrary. Michael M. Schaefer, 246 NLRB 181 (1979),
and cases cited at fn. 6 therein.
There is an additional reason, however, why I would
not in any event find the Respondent's action on the
morning of November 6 to constitute an offer of rein-
statement to Singfield and Hooks. As I have discussed
above in considerable detail, Long's actions on Novem-
ber 6, including the rather extreme measure of docu-
menting Hooks' "refusal" to work, the "investigation" of
Singfield's performance, and the preparation of "Separa-
tion Notices" enumerating a litany of shortcomings by
Hooks and Singfield, were all clearly designed to make a
case against Singfield and Hooks in order to justify their
termination. These actions represent the antithesis of a
bona fide offer of reinstatement required to remedy an
unfair labor practice in violation of the Act. According-
ly, for all of these reasons, I reject the Respondent's as-
serted affirmative defense that it offered to reinstate
Singfield and Hooks.
CONCLUSIONS OF LAW
I. The Respondent, Kelco Roofing Company, Inc., is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local Union 135, United Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. On October 28, 1981, the Respondent, through its
president, John Kelly, interrogated William Singfield,
Sr., about his membership in the Union in violation of
Section 8(a)(1) of the Act.
Questions concerning union membership and union
preference, in the context of job application interviews,
are inherently coercive without accompanying threats,
and therefore violate Section 8(a)(1) of the Act, even
when the interviewee is subsequently hired. Russell
I It is clear that Long having Singfield fill out an employment applica-
tion form had nothing to do with Singfield being offered reinstatement.
According to Long's own testimony, he did not know Singfield had been
fired when he gave Singfield the application form on November 6. By
Long's own version, Singfield was given an application form on Novem-
ber 6 because one had not been filled out when Singfield came to work
earlier.
462
KELCO ROOFING
Stover Candies, 221 NLRB 441, 443-444 (1975); Bendix-
Westinghouse Automotive Air Brake Co., 161 NLRB 789,
791-792 (1966).
4. On November 5, 1981, the Respondent discharged
Henry Hooks and William Singfield, Sr., because of their
activities on behalf of, and support for, the Union, and
the Respondent thereby violated Section 8(a)(1) and (3)
of the Act.
5. On November 5, 1981, the Respondent, acting
through its president, John Kelly, assaulted union repre-
sentative John O'Neal in the presence of employees, and
the Respondent thereby violated Section 8(aX1) of the
Act.
Employer assaults on union agents in the presence of
employees have long been held to constitute restraint
and coercion of employees in violation of Section 8(a)(1)
of the Act. Heavenly Valley Ski Area, 215 NLRB 359
(1974), enfd. 552 F.2d 269 (9th Cir. 1977); Jacques Syl
Knitwear, 247 NLRB 1525 (1980); Martin Arsham Sewing
Co., 244 NLRB 918 (1979).
6. For reasons stated above, I find that the Respondent
did not offer Henry Hooks and William Singfield, Sr., re-
instatement on November 6, 1981, and the Respondent
has not fulfilled its remedial obligation under the Act.
7. The unfair labor practices which the Respondent
has been found to have engaged in, as described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruc-
ing commerce and the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the
Act.
Accordingly, upon the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 4
The Respondent, Kelco Roofing, Inc., Atlanta, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating job applicants about their member-
ship in, activities on behalf of, and/or sentiments regard-
ing Local Union 135, United Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO, or any other
labor organization.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules and Regulations, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
(b) Discharging employees because of their activities
on behalf of, and support for, the Union.
(c) Assaulting union representatives in the presence of
employees, thereby restraining and coercing employees
in the exercise of their rights under the Act.
(d) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Offer Henry Hooks and Williams Singfield, Sr., im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges.
(b) Make whole Henry Hooks and Williams Singfield,
Sr., for any loss of earnings or benefits they may have
suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to the
amount he normally would have earned from the date of
said discrimination to the date of the Respondent's offer
of reinstatement, less net interim earnings, with backpay
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977); see generally Isis Plumbing
Co., 138 NLRB 716 (1962).
(c) Expunge from its file any reference to the dis-
charge of Henry Hooks and William Singfield, Sr., and
notify them in writing that this has been done and that
evidence of the unlawful discharge will not be used as a
basis for future personnel actions against them.
(d) 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility located in Atlanta, Georgia,
copies of the attached notice marked "Appendix."s
Copies of said notices, on forms provided by the Region-
al Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 10 in writ-
ing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
463