Leak Repairs, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1979

241 N.L.R.B. 282 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leak Repairs, Inc. and Milton Louis Jenkins and Vin-
cent Lawrence Paver. Case 13-CA 16838
March 20, 1979
DECISION AND ORDER
BY CAIRMAN FANNING AND MEMBERS PENELLO
ANI) TRUIESDALE
On November 24, 1978, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and supporting argument and the General Counsel
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his 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, Leak Repairs, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative l.aw Judge. It is the Board's established policy not to overrule
;n 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 Dr Wall Products Inc.. 91 NLRB 544
(1951), enl'd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis fbr reversing his findings.
DECISION
SIAIEMENI OF IHE CASE
FRANK H. IKIN, Administrative Law Judge. This hear-
ing was conducted in Chicago, Illinois, on February 23 and
24, 1978. The unfair labor practice charge was filed on Sep-
tember 13, 1977. The complaint issued on November 9,
1977, and was later amended at the hearing. The principal
issue presented is whether Respondent Company violated
Section 8(a)(l) and (3) of the National Labor Relations Act,
as amended, by threatening employees with layoff, plant
closure, and other reprisals if they chose union representa-
tion and, further, by discharging employees Milton Louis
Jenkins and Vincent Lawrence Paver because of their union
and related protected concerted activities.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of coun-
sel, I make the following:'
FINDINGS OF FA(CT
I. JURISDICTION
Respondent Company maintains facilities in Alvin,
Texas, and in Alsip, Illinois. Respondent is engaged in the
business of providing "on steam" repairs to leaking equip-
ment and piping systems. During the prior calendar year,
Respondent received goods and materials at Alsip valued in
excess of $50,000 directly from outside of Illinois. During
this same period, Respondent rendered services from its Al-
sip facility valued in excess of $50,000 directly to enter-
prises outside of Illinois. I therefore find and conclude, as
admitted, that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
1. TIE UNFAIR LABOR PRACTICES
A. Employees Jenkins and Paver Attempt To Get Union
Representation
Milton Louis Jenkins, a Charging Party, testified that he
started his employment with Respondent Company at Alsip
about February 12, 1977, as an assistant technician. About
mid-April. Jenkins discussed the advantages of union repre-
sentation with coemployee Vincent Lawrence Paver, also a
Charging Party. Jenkins and Paver thereafter discussed this
subject "almost on a daily basis" among themselves and
with other employees. Jenkins also attempted, without suc-
cess, to enlist the assistance of a labor organization, Pipefit-
ters Local 729, in this organizational effort. As Jenkins tes-
tified:
I told Paver that I had talked to Enright from the Pipe-
fitters and that they didn't want to get involved in our
situation. I told him that we ought to get the employ-
ees together for a meeting and make some type of list
of gripes as such and try to set up a meeting with Texas
[the central office of the Company].
Jenkins and Paver thereafter spoke with their fellow em-
ployees and arranged a breakfast meeting at the "Country
Kitchen, right by the shop." This meeting was held during
late May 1977 and was attended by Jenkins and Paver and
five coworkers of the Alsip facility. Jenkins, as he testified,
"started the meeting out" with his "list" of topics and
"gripes." The employees present added to this "list." Sub-
jects such as wages, hospitalization, maternity benefits, pay-
time, hours of work, safety sessions, and "the pros and cons
of a union" were discussed. At the conclusion of the meet-
ing, Jenkins "told the employees that [he] would approach
Al Spencer [the Company's Alsip branch manager] with the
list and try to set up a meeting with somebody at Texas."
On the following day, Jenkins spoke with Branch Man-
ager Spencer in Spencer's office. Jenkins recalled:
'General Counsel's motion to correct the transcript, dated April 5, 1978,
which is unopposed, is granted.
241 NLRB No. 38
282
LEAK REPAIRS. INC.
[I] told Mr. Spencer that the employees got together
and we made a list of gripes. And we'd like to talk with
the [Company's] representative from Texas about our
gripes and about the shop going union.
Spencer "said that he would get in touch with Texas and
get back with" the employees. Thereafter, Jenkins again
spoke with Spencer about this subject at a "hot dog stand"
near the Alsip facility. Employees Paver and Paul Durham
and Foreman Kenneth Leone were also present during this
discussion. Jenkins testified:
I asked Mr. Spencer, had he heard anything concern-
ing Texas sending somebody down. He said he knew
somebody was coming but he didn't know who. He
said, "if you guys push this union thing, Texas will end
up shutting this shop down and I will lose the $3,000 I1
have got down on a house I am having built." I told
Mr. Spencer that Texas couldn't shut a shop down ...
for employees wanting to go union. He said, "it's a
Texas shop, they can if they want."'
About this same time, Jenkins, Paver, and three cowork-
ers attended an employees' meeting at the Alsip shop. The
meeting had been "called" by Louis Randolph, the Compa-
ny's superintendent. According to Jenkins:
Randolph said, "I guess you know George Harrison
[the Company's vice president] is coming up to meet
with you guys." He said, "if you push this Union thing
. . Texas will shut this shop down."
About June 3, 1977, Company Vice President Harrison
spoke to the Alsip employees in the shop. Jenkins recalled
that "Harrison came out, introduced himself and said, I
understand you guys got some gripes you'd like to discuss."
Jenkins responded. "Yes . .. I had a list . . . that we had
gotten together and made up." Harrison asked for the "list"
and instructed Spencer to prepare a copy of the "list." See
General Counsel's Exhibit 7. Jenkins then "started the
meeting out" by discussing with Harrison his "list." During
this discussion, as Jenkins testified:
I [Jenkins] brought [up] concerning the union. I asked,
"Could we have a representative from a union come in
and talk to Mr. Spencer concerning benefits and see if
we could work out some type of program or give the
Company a better idea ... what we could get by hav-
ing a union." At this time, Mr. Harrison said, "No, [he]
couldn't allow that. [He would] have to get back with
the stockholders and bring it up to them." . . . Harrison
said, "What good would a union be any way." I [Jen-
kins] said, "Well, it would give us job security. It would
help the Company in getting into some plants that
wouldn't allow us ... because we are nonunion and it
would hopefully help us get better benefits."
Harrison claimed that "there is more to it than that." Jen-
kins asked: "If this shop went union, what would Texas
do"? Harrison replied: "They'd probably shut it down."
The meeting ended with Jenkins asking Harrison "three
2 Jenkins recalled that on the following day he again asked Spencer in the
shop, "had he heard from Texas." Spencer replied. "no .... I hope you guys
know what you are doing. They will shut the shop down and I will lose the
money I got down on my home." Jenkins recalled a similar conversation
with Spencer later that evening or on the following da.
questions to take back to the stockholders" pertaining to
union representation and increased benefits.
Subsequently, about June 10, 1977, Company Vice Pres-
ident Robert Thompson spoke to the Alsip employees in
the shop. As Jenkins testified. "I started the meeting out
asking Mr. Thompson about the three questions that I had
sent with Mr. Harrison to get answers for." Thompson re-
sponded that he had been advised by "his lawyers in
Texas" against "bringing ... a representative from a union
in to talk to Al Spencer." Further. Jenkins recalled:
At that time, I [Jenkins] told Mr. Thompson . . .
"When Mr. Harrison was up here, he [Harrison] said
that if this shop went union, Texas would shut the shop
down." And Mr. Thompson said, "Don't get me
[Thompson] wrong. I am not totally against a union,
but if this shop did go union, you could see how it
would not run efficiently as it should and. therefotre.
yes, we probably would have to shut it down."
Thompson then asked Jenkins "why you would want a
union anyway" and Jenkins cited "job security" and "hbene-
fits."
Employee Paver testified that he was employed by the
Company from June 1975 through June 1976 and rom
February 14, 1977 through June 13, 1977. Paver recalled
discussing a union with coworker Jenkins and other Alsip
employees "almost everyday from April until the time we
were fired in June." During late May, Paver assisted Jen-
kins in arranging a meeting of the employees, in order to
"make up a list of demands and try to get another union or
present our list to the Company." Paver later participated
in the employee meeting at the Country Kitchen restaurant.
About this time, during late May. as Paver further testi-
fied, Branch Manager Spencer "came up" to Paver at work
and the two engaged in "just regular chit-chat and hap-
pened to bring up a point about the union." Paver then
commented to Spencer: "if we could get a union, it would
be nice." Paver asked Spencer "what he thought about it."
Spencer replied:
He [Spencer] said he couldn't say at this time. But he
said. "If we got a union, Texas would probably close
this shop down."
About a day later, Paver. in the presence of coworker Jen-
kins, was complaining to Spencer about a particular job.
Paver stated: "If we had a union, it would take better care
of these problems." Spencer replied that "we'd get more
problems." Spencer noted: "I have some money down on a
house and I would hate to be transferred and lose my
money."
Paver recalled a further conversation with Spencer at a
"hot dog stand" near the shop. Jenkins and other employ-
ees were present. Paver overheard Spencer state:
he [Spencer] had some money down a house and he
didn't want to lose it. If we kept pushing this union
deal, they'd probably have to shut the shop down.
Paver also recalled a conversation with Foreman l.eone
about this same time. Leone, after taking a telephone call.
apprised Paver:
They gave me [Leone] the word. If I was caught col-
laborating with you on the union. I lose my job. What
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you guys do now I want no part of and I want to keep
my nose clean.
Paver attended a portion of Harrison's meeting with the
employees on or about June 3, 1977. Paver also attended
the Thompson meeting with the employees on or about
June 10. 1977. Paver recalled that coworker Jenkins had
asked Thompson: "What happens, you know, if we went
with the union." Thompson replied:
This isn't a threat. want to make that perfectly clear.
But if you people insist on going with the union and
you got a union, we'd probably have to close this shop
down.
Anthony Gazelle, a technician employed at Respondent's
Alsip operation, recalled the efforts of coworkers Jenkins
and Paver to unionize the shop. Gazelle recalled that about
late May or early' June 1977 he and branch manager Spen-
cer had the following conversation while playing golf:
Al [Spencer] said to me, he says, "'Texas knows about
this union you guys have been talking about." I said,
"no." He said, "Do you know what Texas will do." I
said, "no, I don't." He says, "well, they will transfer all
salaried people, lay everybody on hourly off and shut
the office down." I says, "why would they do that." He
says, "Texas doesn't want unionists in the Company."
Spencer also apprised Gazelle: "I'm just telling you what
they said. I don't want to see you guys doing anything
you'd be sorry for later." About one week later, Gazelle, as
he further testified, was called into Spencer's office. Spencer
informed Gazelle: "I'm talking to you as a friend, not as
your boss. I don't want to see you get involved in this union
thing. You've got a good chance to move up on the Com-
pany. I don't want to see you fuck it up."'
Paul Durham, employed by the Company as an assistant
and, later, as a technician from January until August 1977,
recalled that Foreman Leone told him and coworker Paver
that "he [Leone] no longer could talk to us about the union,
that his job would be in jeopardy." Durham also witnessed
branch manager Spencer warn the employees at a "hot dog
stand" that:
I [Spencer] have $3000 on a new house that I am hav-
ing built [and] if we keep continuing this union busi-
ness that Texas is going to close the shop and I'll lose
my $3000.
Durham later witnessed Superintendent Randolph state to
the Alsip employees, "Harrison wanted to know what we
were going to do about the union business and that Texas
would definitely close the shop if we continued it." In addi-
tion, Durham witnessed Vice President Harrison explain to
coworker Jenkins that "Texas would shut the shop down" if
the employees "went union."
Robert Thompson, vice president of Respondent, admit-
'Gazelle attended the meeting of employees conducted by Vice President
Harrison. Gazelle recalled. inter alia, that coworker Jenkins asked Harrison,
"what would Texas do if we get a union in here." Harrison responded:
"We'd probably close the shop down." Gazelle also attended the meeting of
employees conducted by Vice President Thompson. Gazelle recalled that
Jenkins had asked Thompson, "what would Texas do if we got a union in
here." Thompson responded: "IHIe didn't see how this could operate if it
was a union."
tedly spoke with the Alsip employees on or about June 9,
1977. He had seen the employees' "list of complaints or
gripes." This "list" was discussed at the meeting. Thompson
recalled: "Milt Jenkins had told me they had been talking
to a union representative." They then discussed "the pros
and cons of a union." According to Thompson:
I thought from a business climate basis and efficiency
of operation that the business could quite possibly suf-
fer if it was unionized. I spoke to that, that I felt this
was a possibility. not using it as a threat, that I was
concerned that the branch operation would survive as
a union operation.
Company Vice President Harrison recalled that he spoke
to the Alsip employees about June I and that he then re-
viewed the "list" of employee complaints. Harrison gener-
ally denied, inter alia, that he was asked by Jenkins what
would happen if the shop were "organized" and that he
responded "that the plant would close down or mentioned
the plant closing in any way."
Branch Manager Spencer generally denied, inter alia,
that Vice President Harrison had told the Alsip employees
during his meeting that "he was going to close down the
shop if it went union." In addition, Spencer recalled a con-
versation with employees at a "hot dog stand" at which
time the "pros and cons" of unionization were discussed.
Jenkins then said, "we have got nothing to lose" and Spen-
cer admittedly responded: "I have got $3000 to lose be-
cause I was buying a new house. That is all I remember of
that conversation." Spencer further recalled a conversation
with employees Jenkins and Paver at which time he said:
[D)]o you remember old John Popp [a former manager],
what he wanted to do, he wanted a union. and they would
probably shut this place down." Spencer next recalled talk-
ing with employee Gazelle "regarding a union" during a
golf game. Spencer could only "remember saying" that
"some of the guys are talking about it" and he, Spencer,
"really didn't know" what the Company "will do."4
B. The Company Discharges Employees Jenkins and Paver
Employee Jenkins testified that on Monday June 6, 1977,
he and coworker Paver went to the ECI refinery to investi-
gate "a steam leak." The leak was on "a flange and heat
exchanger"--the "exchanger was approximately 12 to 15
feet long . . . it's like a large cylinder or pipe" and the
"bottom is approximately three feet in diameter." Jenkins
was the assistant technician assigned to this job. Paver was
the technician. Jenkins recalled that Paver examined the
leak and noted that "there is a weld down here on this
flange" and if "we went with a tongue seal [a common form
of clamp used to stop such a leak] it could cause us prob-
lems." Consequently, Paver wanted to "use packing in-
stead" as a seal. Paver determined that:
[I]f we went with packing, we could go on the outside
of the weld and we could have a 360 [degree] seal on
4 Superintendent Randolph was present when Vice President Harrison ad-
dressed the Alsip employees. Randolph was asked if Harrison had said:
"Texas would close down the shop." Randolph's response was: "I don't
remember him saying that-I never heard him say that." Randolph gener-
ally denied telling the employees that the Company was going to close the
shop if it went union.
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LEAK REPAIRS. INC.
both flanges all the way around. And, we w ill keep the
tongue, except we'll take off a quarter of an inch off the
measurement or thereabouts. And we will just use the
tongue for taking up space.
Jenkins agreed with Paver. The two employees then made
their measurements and filled out a company data sheet.
See General Counsel's Exhibit 8. Jenkins acknowledged
that, in filling out the data sheet (G.C. Exh. 8). the employ-
ees recorded the "gap between the head of the flanges" as
3.5 inches although the "exact measurement" of' this gap
was approximately 3.75 inches. Paver then "took the data
sheet cnd called the information into Texas," where the
Company would prepare the clamp.
A few days later, Jenkins apprised Foreman Leone that
"the clamp Texas is sending up has a tongue seal on it. We
ordered it with packing.... he tongue seal won't work
because we took a quarter of an inch off of it." Leone said.
"wait until it comes in and see what happens." Later, the
next day. Jenkins similarly informed Branch Manager
Spencer "that the clamp Texas is sending has a tongue seal
on it.... It won't work.... We ordered it with packing and
we took a quarter of an inch off that tongue, and there is no
way that tongue will seal it." Spencer replied, "it's already
been made and it's on its way. We will have to see what
happens."
On Saturday June 11, the clamp arrived from Texas. As
Jenkins testified, "it was a tongue seal clamp with no pack-
ing." The two employees took the clamp to the ECI job and
attempted for over 12 hours "to get this clamp to work":
however, "it didn't work." Paver then told Foreman Leone:
We can't get it sealed. We have tried everything we
could think of. It's not the way we ordered it. I don't
know what to say. We just can't get it stopped.
Leone responded: "Don't worry about it. Everybody makes
mistakes."
On Monday. June 13, Company Superintendent Ran-
dolph summoned employees Jenkins and Paver into Branch
Manager Spencer's office. Spencer was not there. Randolph
informed the two employees that "we can't have . . . big
mistakes like that and Al [Spencer] and I [Randolph] talked
it over and decided to let you two go." Jenkins argued that
Randolph had made "many mistakes" and had not been
fired. Randolph responded, "that's the way it is." Previ-
ously, Jenkins had never received a reprimand or any criti-
cism of his work. See General Counsel's Exhibits 5 and 6,
the Company's progress reports issued to Jenkins on May 3
and June 13, 1977, respectively.
Employee Paver similarly testified that after examining
the leak at the ECI job on June 6. he stated to Jenkins.
"why don't we put a tongue in and use it to tongue the gap"
and also use a "packing seal." Jenkins agreed. Paver had
ordered about four or five clamps with "packing" in the
past: however. as Paver acknowledged:
I never asked for a clamp made this way because usu-
ally when I come up to a job and look at a flange it
might be mismatched. I never saw a weld on a flange
like that.... The way I understood it, it was my job to
look at it and see what to do with it.
Paver then called in his order to Texas. Paver, as he further
testified, told the Texas representative on the telephone that
he had a DS 100 sheet -a data supply sheet (G.C. Exh.
8)-and, "[WV]e started from the top of the sheet and we'd
go down giving the information that we had. Paver re-
called:
When we got to the gap, I gave him this 3-1/2 [inch]
measurement. And he says. "Where did you get this 3-
1/2? What did you use to measure this?" I said, "my
veneers. I will explain this to you in a moment." And I
went down and explained this obstruction.
Paver, after explaining the obstruction to the Texas repre-
sentative on the telephone, stated: "I would like to go with
packing on this." Paver was then asked. "Where do you
come up with this 3-1,/2? What did ou use to measure?"
Paver responded:
"I used my veneer. I didn't want to use a tongue as a
[seal]." He [the Texas representativej said. "What is
this packing. I don't understand." Then, I explained
the weld again. And he said, "Well, all right." He goes,
"I'll see what we can do with it." And he hung up and
I hung up.'
Thereafter, as Paver further testified, on Saturday June
1, Paver and Jenkins picked up the clamp for the ECI job.
Paver observed, "This isn't going to work" there was no
"packing" on the clamp and "it wasn't quite wide enough."
In brief, the tongue was cut to a 3-1/2 inch gap as ordered:
however, without the packing, it was too narrow to hold in
the seal. Repeated efforts to install the clamp and seal the
leak were unsuccessful. Foreman Leone later visited the
ECI job. Paver explained to Leone that "they didn't make
the clamp the way I asked them to." Leone responded:
"Don't worry about it. Just go order another clamp." Paver
also reported the incident to Branch Manager Spencer on
the telephone. Spencer agreed that a new clamp should be
ordered.
Paver recalled that on Monday June 13, Jenkins and he
were summarily terminated by Randolph. Paver acknowl-
edged that he had been instructed by management to fill
out the data sheet forms accurately and that the ECI data
sheet form shows the "gap" at 3.5 inches instead of 3.75
inches.,
Employee Gazelle testified that he spoke with Manager
Spencer on June 13 in Spencer's office. Coworker Paul Dur-
ham was also present. Gazelle and Durham then asked
Spencer why Jenkins and Paver were fired. Gazelle asked,
"How come Milton [Jenkins] was fired. He's just an assist-
ant. He doesn't have any final say-so in the measuring of a
clamp. That's the technician's final decision on what he
feels is the best way to seal it." Spencer replied:
'The data sheet which was filled out by the employees at the ECI job
(GC. Exh. 8) states under "instructions for field" "1/4 of in from gap on
flange 2 (3/4 inch wide and 1 /4 weld high) (packing)." Paver recalled that he
"turned [the data sheet] in" at the Alsip office after leaving the ECI job,
6 Paver also explained that during his last period of employment with the
Company (Februar) 14 through June 13. 1977), he had not been repn-
manded or warned b the Employer about his work. (See GC. Exh. II.
Paver's progress report dated May 31. 1977.) In addition, Paver acknowl-
edged that he had been terminated by former Company Manager Bill Buc-
hardt in June 1976 "because I left the job leaking." Paver explained the
incident, Later, Buchardt was fired by the Company and Manager Spencer
then rehired Paver. Paver was then told: "If you want, you got the job
because we Spencer and Steve SteAart] know you got the shaft."
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D[ECISIONS OF NATIONAL LABOR RELATIONS BOARD
I[I]e [Spencer] had talked to Texas. and when Texas
asked who the assistant on the job was, and he had
told him Milt Jenkins, he said get rid of him too.
Spencer assured Gazelle and Durham: "Don't worry. No-
body else will be fired on account of this." Gazelle acknowl-
edged that he had in the past incorrectly measured a clamp;
the clamp did not fit; and he was not fired or reprimanded
for his mistake. Gazelle also noted that in late 1976 he had
ordered a clamp with a tongue and packing seal and Texas
"agreed." Gazelle, however, accurately recorded the "gap"
for this "tongue and packing seal" clamp.
Employee Durham testified that he was at the ECI job
on Saturday June I . Durham witnessed coworker Paver
explain to Foreman L.eone "that the clamp they were work-
ing on wouldn't fit." I.eone assured Paver: "Don't worry
about it. We all make mistakes." Later, Leone stated to
Durham:
[fl]e [Leone] had just called Al Spencer. Leone told me
[Durham] that Al Spencer had said not to worry about
it. 'Fell l.arry not to worry about it. Just take another
set of measurements and send them to Texas so we can
get a clamp.
Durham also witnessed Leone relate this information to
Paver. "Spencer said not to worry about it. Just take an-
other set of measurements and get it to Texas." And, Dur-
ham recalled that Spencer later assured Gazelle and him-
self: "Don't worry about it. Nobody else will be fired for
the same thing."
Branch Manager Spencer testified that on Saturday June
11 he received a telephone call from Foreman Leone con-
cerning the ECI job. Leone then informed Spencer that
Paver had admitted that "he [Paver] had things to do that
night and had cut a quarter inch off to make the job easier."
Spencer then told Leone to have Paver "in the office Mon-
day morning." Spencer further testified that he received a
telephone call from Paver that same day. Spencer recalled:
He [Paver] called me up and told me the clamp didn't
fit. Basically that it was his fault. Can't remember the
exact words now. He admitted it was his fault and
asked me what I was going to do. I don't remember if
he asked me whether I was going to fire him or not. I
said. "We are not going to do anything right now."
Spencer, as he further testified, telephoned Vice President
Harrison on Sunday June 12 and apprised Harrison that a
technician and his assistant had "cut one quarter inch off a
Itongue] of a clamp to make the job easier for themselves
and that the clamp did not fit." Harrison assertedly left the
"decision" as to "what . . . to do" to Spencer. Spencer
claimed that he did not mention the names of the employ-
ees involved to Harrison. Spencer subsequently telephoned
Superintendent Randolph during late Sunday and "told
him [Randolphl I [Spencer] wasn't going to be in the office
Monday morning .. . I wanted him to discharge Mr. Paver
and Mr. Jenkins." Spencer assertedly terminated both
Paver and Jenkins because "they were not employed as en-
gineers and they designed this clamp themselves in the field
which is not their job." Spencer acknowledged that clamps
have been "mismeasured" by employees in the past and the
employees involved were not terminated by the Company.
Company Vice President Harrison recalled his conversa-
tion with Spencer on Sunday June 12. According to Harri-
son, Spencer then told Harrison that two employees had
"mismeasured" a clamp; the "clamp doesn't fit" and "the
technician said they did it on purpose." Harrison responded
that "we can't tolerate that." Harrison further testified in
part:
After . . . I [Harrison] told him [Spencer] to get rid of
them [he] said, "It's Larry Paver and Milt Jenkins." I
said, "we can't help it; with this Union talk."
* * . * *
"With this Union talk, can we do that."
* * * t *
I said, "Al, if there is a good reason regardless who it
is, it's my feeling that something should be done. And
we cannot tolerate this."
Harrison added:
I said, "well you know what has to be done." That's
before I knew who the individuals were.
Superintendent Randolph acknowledged that ten em-
ployees have made mistakes in measuring clamps; most of
the clamps could not be used; and none of the employees
involved were discharged. Randolph further acknowledged
that he had seen the data sheet prepared by Paver and
Jenkins for the ECI clamp "prior to the installation of the
clamp."
Foreman Leone claimed that on Saturday June 11, em-
ployee Paver made the following admission to him:
"Well, I [Paver] had a few things to do today, and I
didn't feel like working on this all day long; so when
the measurements came in, I took a quarter inch off
the measurements."
According to Leone, Jenkins also admitted that he "knew
of the situation." Jenkins assertedly stated to Leone:
"[W]ho am I [Jenkins] to override a technician. I am
the assistant tech."
Leone later spoke with Spencer. Leone denied that either
Jenkins or Paver had told him prior to Saturday June 11
that they had reason to believe that the ECI clamp would
not seal the leak. Leone also denied that on June 11 Paver
had said that the clamp was "not the way we ordered it."
Leone, however, could not "remember" saying to Paver on
June I I: "[D]on't worry about it, we all make mistakes."
Further, Leone did not know when the initial ECI clamp
had been ordered by Paver and Jenkins. Leone agreed that
on the day when this clamp was ordered, there was no way
of determining exactly when the clamp would be delivered
from Texas.
Robert Thompson, an officer of Respondent, explained
that it is the engineering personnel in the Texas office who
"have the ultimate decision to decide how the job should be
done. It is not decided in the field" and the "most critical
responsibility" of a field technician is "to make accurate
measurements." Thompson claimed that the cost of the new
ECI clamp was about $3700.
286
LEAK REPAIRS, INC.
William C. Grace, employed by the Company as a super-
visor of engineering in its Texas office, testified that Re-
spondent's Exhibit 2 (sheet 4) is the data sheet which he
prepared for the ECI clamp in question on June 7, 1977.
According to Grace, "I am the one who took the call and
filled it out." Grace claimed that no request had been made
for an "unusual sort of clamp." Grace, in any event, would
not have approved any request by a technician for a "spe-
cial clamp" here. However, General Counsel's Exhibit 8,
the data sheet report of Paver and Jenkins, indicates that
this order was made on June 6 and not on June 7, as stated
in Grace's report. Further, Grace, after being shown Gen-
eral Counsel's Exhibit 8, testified in part:
I recall a discussion with the technician in regards to
obstruction, and the request for packing, and I ex-
plained to him there-with the obstruction, the flange
clamp, the tongue clamp would be better because of
the kind of close on the packing. This is not the exact
words, but the discussion.
Well, sir, we discussed the data, and he explained
the obstruction, the weld, and I remember we dis-
cussed packing, and we discussed the weld in trying to
close on the packing. We discussed that it would be
better to go with the flange clamp because of the gap,
no mismatch, and it's easier just to machine the flange
to the counter bore larger to get over the weld.
I credit the testimony of employees Jenkins, Paver, Ga-
zelle, and Durham as detailed supra. Their testimony is in
significant part mutually corroborative. Their testimony is
also substantiated by the testimony of Vice President
Thompson, Vice President Harrison, Branch Manager
Spencer, Superintendent Randolph, Foreman Leone, and
Supervisor Grace. And, relying upon the demeanor of the
witnesses, I am persuaded on this record that employees
Jenkins, Paver, Gazelle, and Durham have given a com-
plete and credible account of the above sequence of events.
Insofar as the testimony of Thompson, Harrison, Spencer,
Randolph, Leone, and Grace differs with the above testi-
mony of Jenkins, Paver, Gazelle, and Durham, I find the
testimony of the latter to be more complete, accurate, and
trustworthy. In particular, as discussed below, I am per-
suaded here that Spencer, Randolph, Harrison, and
Thompson threatened the employees with a shutdown of
operations at Alsip and with other reprisals if the employ-
ees exercised their rights to union representation. Further,
as discussed below, I am persuaded here that the real rea-
son for the summary discharge of employees Paver and Jen-
kins on Monday June 13 was their unionization activities. I
do not credit Foreman Leone's assertion that Paver admit-
ted to him on Saturday June II that he, Paver, "had a few
things to do today, and didn't feel like working on this all
day long, so when the measurements came in [Paver] took a
quarter inch off." Indeed, Leone acknowledged that neither
Paver nor Jenkins could have known on the day they made
their measurements, Monday June 6, when the clamp in
fact would be delivered to the job site. Instead, I am per-
suaded here that management has seized upon this error on
the part of the two employees as an excuse to discharge
them and thereby discourage employee organizational ac-
tivities at the Alsip facility.
C. Discussion
Respondent argues that it discharged employees Jenkins
and Paver solely for lawful reasons. The question presented
is whether Respondent, in discharging the two employees
on June 13, 1977, was motivated by an unlawful purpose.
For, under settled law, "the Board is not compelled to ac-
cept the Employer's statement" of the reason for an em-
ployee's discharge "when there is reasonable cause for be-
lieving that the ground put forward by the Employer was
not the true one, and that the real reason was the Employ-
er's dissatisfaction with the employee's" union or protected.
concerted activities. The Great Atlantic and Pacific Tea Co.,
Inc., v. N.L.R.B., 354 F.2d 707, 709 (5th Cir. 1966). And, a
discharge motivated only in part by an unlawful purpose is
similarly illegal. J. P. Stevens & Co. v. N.L.R.B., 380 F.2d
292, 300 (2d Cir. 1967), cert. denied 389 U.S. 1005.
On the credited evidence of record as recited supra I find
and conclude that Respondent, in summarily firing employ-
ees Jenkins and Paver on June 13, 1977, was motivated at
least in part by their union and related, protected, con-
certed activities. Thus, Jenkins and Paver were the chief
union protagonists at the Alsip facility. They had arranged
for a meeting of their coworkers to prepare a list of
"gripes." They had attempted to secure the assistance of a
union in their organizational efforts. Jenkins had apprised
Branch Manager Spencer about the employees' "list of
gripes" and that "we'd like to talk with the [Company's]
representative from Texas about our gripes and about the
shop going union." Branch Manager Spencer thereafter re-
peatedly warned the employees: "[I]f you guys push this
union thing, Texas will end up shutting this shop down."
Superintendent Randolph similarly warned the employees
that Vice President Harrison "is coming to meet with you
guys" and "if you push this union thing ... Texas will shut
this shop down." Indeed, Branch Manager Spencer admon-
ished employee Gazelle: "[T]hey will transfer all salaried
people, lay everybody on hourly off and shut the office
down .... Texas doesn't want unionists in the Conm-
pany.... I don't want to see you guys doing anything you'd
be sorry for later." Subsequently, Spencer again warned
Gazelle "as a friend" not to get "involved in this union
thing." Spencer made it clear to Gazelle, "[Ylou've got a
good chance to move up . . . I don't want to see you fuck it
up." And, on or about June 3, Company Vice President
Harrison, in discussing employee Jenkins' list of "gripes" at
the Alsip shop, confirmed to the assembled employees that
"they'd probably shut [the facility] down" if the employees
chose union representation. Thereafter, about June 10,
Company Vice President Thompson also warned the as-
sembled Alsip employees that "if this shop did go union,
you could see how it would not run efficiently as it should
and, therefore, yes, we probably would have to shut it
down."
On the following Monday morning, June 13. employees
Jenkins and Paver were fired by Superintendent Randolph
because, as Foreman Leone wrote on the employees' pro-
gress reports (G.C. Exhs. 4 and 6):
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this time, a mistake that was uncalled for and that
never should have been, a 1/4 inch subtraction off a
tongue clamp
Larry Paver] was doing a fine job as a tech, but when
it came down to the end, he knew he was wrong in
what he had done, but too late to change.
* * * * *
At this time, Milt [Jenkins] had gone along with a tech
to subtract 1/4 inch off the width of a tongue clamp
which caused a misfit.
Milt [Jenkins] would have made a good tech. but we
felt that Milt should have spoke up at the time know-
ing this was not the right thing to do.
In the past, about 10 Alsip employees had made mistakes in
measuring piping for clamps. In some cases, the clamps
could not be used. Nevertheless, management had not dis-
charged or apparently even reprimanded the employees in-
volved.
It is true, as Respondent claims, that employees Paver
and Jenkins made a mistake at the ECI job. They made, in
my view, a mistake in judgment by not sufficiently and
clearly apprising their superiors of their improvisation.
However, assessed in the context of management's strong
opposition to the employees' union and related, protected,
concerted efforts, the willingness of Management to tolerate
mistakes in the past, the good work records of these two
employees, and the timing of their terminations, I find and
conclude that the real reason for their discharges was their
union and related protected concerted activities. I find and
conclude that management seized upon this mistake as an
excuse to deter and chill the unionization and related, pro-
tected, concerted activities at the Alsip shop. Respondent
thereby violated Section 8(a)(3) and (1) of the Act.
Further, I find and conclude that Branch Manager Spen-
cer's and Superintendent Randolph's warnings to the em-
ployees to the effect that, "if you push this union thing ...
Texas will shut this shop down," plainly tended to impede
employee Section 7 activities and therefore violated Section
8(a)(l) of the Act. In like vein, Vice President Harrison's
and Vice President Thompson's warnings to the Alsip em-
ployees to the effect that, "we probably would have to shut
it down" if the employees chose union representation, were
proscribed threats of reprisal. These statements by upper
management were not "carefully phrased on the basis of
objective fact to convey an employer's belief as to demon-
strably probable consequences beyond his control." See,
e.g., N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618
(1969).' Finally, Branch Manager Spencer's warning to em-
'And see Surprenant Manufacturing Co. v. N.LR.B., 341 F.2d 756, 761
(6th Cir. 1965): N.L.R.B. v. Miller. er al., 341 F.2d 870, 873 (2d Cir. 1965):
International Union of Electrical, Radio and Machine Workers, AFL CIO
[NECO Electrical Products Corp.] v. N.L.R.B., 289 F.2d 757. 763 (D.C. Cir.
1960); N.L.R.B. v. Kolmar Laboratories, Inc., 387 F.2d 833, 836-838 (7th Cir,
1967); N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696, 702-
703 (8th Cir. 1967).
ployee Gazelle that the Employer would transfer and lay
off employees if they persisted in this unionization effort
and Spencer's related admonishment to the employee not
"to get involved" because "you'd be sorry" or jeopardize "a
good chance to move up," also tended to inhibit employee
organizational activities, in violation of Section 8(a)(l) of
the Act.
I find and conclude that Respondent, by the foregoing
conduct, violated Section 8(a)(1) and (3) of the Act as al-
leged.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent violated Section 8(a)( ) of the Act by
threatening its employees with layoff, plant closure, loss of
promotion, and other reprisals if they chose union represen-
tation.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by terminating employees Vincent Lawrence Paver and
Milton Louis Jenkins, and thereafter refusing to reinstate
them, because they had engaged in union and related, pro-
tected, concerted activities.
4. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it cease and desist there-
from and taken certain affirmative action designed to effec-
tuate the policies of the Act. And, as the unfair labor prac-
tices committed by Respondent strike at the very core of
employee rights safeguarded by the Act, I recommend that
Respondent cease and desist from in any other manner in-
fringing upon rights guaranteed employees in Section 7 of
the Act.
It has been found that Respondent, in violation of Sec-
tion 8(a)(3) and () of the Act, unlawfully terminated em-
ployees Paver and Jenkins on June 13, 1977. It will there-
fore be recommended that Respondent offer to both
employees immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings suffered by reason of their
unlawful terminations, by payment to them of a sum of
money equal to that which they normally would have
earned from the date of Respondent's discrimination to the
date of Respondent's offer of reinstatement, less net earn-
ings during such period, with backpay and interest thereon
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).a Further, it will be rec-
ommended that Respondent preserve and make available
to the Board, upon request, all payroll records and reports,
and all other records necessary and useful to determine the
amount of backpay due and the rights of reinstatement un-
I See, generally, Isis Plumbing & Heating co., 138 NLRB 716 (1962).
288
LEAK REPAIRS, INC.
der the terms of these recommendations. Respondent will
also be directed to post the attached notice.
Upon the foregoing findings of fact, conclusions of Law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER9
The Respondent, Leak Repairs, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with layoff, plant closure,
loss of promotion, and other reprisals if they chose union
representation;
(b) Discouraging membership in any labor organization
by discriminatorily discharging any of its employees or in
any other manner discriminating against them with respect
to their hire or tenure of employment or any term or condi-
tions of employment;
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer employees Vincent Lawrence Paver and Milton
Louis Jenkins immediate and full reinstatement to their for-
mer jobs or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for
any loss of earnings they may have suffered due to the dis-
crimination against them in the manner set forth in The
Remedy section of this Decision.
(b) 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 to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its offices and facility in Alsip, Illinois, copies
of the attached notice marked "Appendix."' 0 Copies of said
g 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.
'1 In the event that 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
notice, on forms provided by the Regional Director for Re-
gion 13, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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 parties had the opportunity to
present evidence, the National Labor Relations Board has
found that Leaks Repairs, Inc., has violated the National
Labor Relations Act, as amended, and has ordered us to
post this notice. We therefore notify you that:
WE WILL NOT threaten our employees with layoff,
plant closure, loss of promotion or other reprisals if
they chose union representation.
WE WILL NOT discourage membership in any labor
organization by discriminatorily discharging any of
our employees or in any other manner discriminating
against them with respect to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL offer Vincent Lawrence Paver and Milton
Louis Jenkins immediate and full reinstatement to
their former jobs or to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings they may have suffered due to the dis-
crimination against them, plus interest.
LEAK REPAIRS, INC.
289