Lighting Systems Co.

National Labor Relations Board - Board Decisions

Sep 14, 1978

238 N.L.R.B. 108 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lighting Systems Co. and International Brotherhood
of Electrical Workers, Local Union No. 2295, AFL-
CIO, CLC. Case 31-CA-7162
September 14, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 30, 1978, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 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, Lighting Systems Co.,
Burbank, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
I Contrary to the contentions of the Respondent, the Administrative Law
Judge did not err by permitting the complaint to be amended at the hearing
to allege that an employee was illegally discharged on a date other than the
date set forth in the original complaint. Moreover, the original complaint
alleged that this employee had been discharged, the Respondent did not
accept an offer of a continuance, and the issue was fully litigated by all
parties. Accordingly, we find Respondent was not prejudiced by the amend-
ment at the hearing.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F. 2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATiMENT OF rtlE CASE
STANLEY GILBERT. Administrative Law Judge: Based
upon a charge filed on June 22, 1977, by the International
Brotherhood of Electrical Workers, Local Union No. 2295,
AFL-CIO, CLC, hereinafter referred to as the Union, the
complaint herein was issued on August 15, 1977. The com-
plaint, as amended during the course of the hearing, alleges
that Lighting Systems Co., hereinafter referred to as Re-
spondent or the Company, violated Section 8(a)(1) and (3)
of the Act. Respondent, by its answer, as amended during
the course of hearing, denies that it engaged in conduct
violative of the Act as alleged in the complaint as amended.
Pursuant to notice, a hearing was held in Los Angeles,
California, on March 7, 1978, before me, the duly desig-
nated Administrative Law Judge. Appearances were en-
tered on behalf of all the parties and briefs were timely filed
by the General Counsel and Respondent.
Based upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDIN(;S OF FA( I
I. BUSINESS OF RESPON)DENI
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of California, with an office
and principal place of business located in Burbank, Califor-
nia, where it is engaged in the business of electrical light
maintenance and other electrical services. In the course and
conduct of its business operations. it annually sells goods or
services valued in excess of $50,000 to customers or busi-
ness enterprises within the State of California. which cus-
tomers or business enterprises themselves meet one of the
Board's jurisdictional standards other than the indirect in-
flow or indirect outflow standard.
As is admitted by Respondent, it is now, and has been at
all times material herein, an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1I. tHE I.ABOR ORGANIZAITION INVOLVED)
As is admitted by Respondent, the Union is now, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
111. IHE UNFAIR LABOR PRACIICES
A. The Issues
Following are the issues in this case:
I. Whether or not Respondent violated Section 8(a)(1) of
the Act by (a) unlawfully interrogating employees on June
20, 1977, (b) threatening on June 20, 1977, to go out of
business if the employees chose to be represented by the
Union, and (c) unlawfully creating, on June 20 and 22,
1977, the impression of surveillance of employees' protected
activity; and
2. Whether or not Respondent violated Section 8(a)(3)
and (1) of the Act by (a) discriminatorily discharging em-
ployees Russell Fink, Samuel Crosby, and Eddie Crosby on
June 20, 1977, and (b) after reinstating the latter on June
23. 1977, again unlawfully discharging him on or about
June 28, 1977.
B. The Organizational Activit,
Following is a summary of the organizational activities of
employees based upon credited testimony. On June 9 or 10,
238 NLRB No. 12
108
LIGHTING SYSTEMS CO.
1977, Fink contacted the Union by telephone to determine
if it was willing to represent Respondent's employees and
apparently received an affirmative answer. On June 13,
Fink went to the Union's office, where he received some of
its blank signature cards (applications for membership) and
signed one on that date. On June 15, Fink asked Eddie
Crosby, hereinafter referred to as Eddie, if he would be
interested in joining the Union and gave him two signature
cards. That same day Eddie spoke to his brother, Samuel
Crosby. hereinafter referred to as Samuel, about the Union
and gave him a signature card, which Samuel signed and
returned to Eddie. Later that day, Eddie returned his and
Samuel's signed signature cards to Fink. At that time. Fink
informed Eddie that there would be a meeting with the
Union's representatives at his (Fink's) house on June 17.
Thereafter, on the same day (June 15), Eddie spoke about
the Union to Ollie Appleberry, hereinafter referred to as
Ollie, another employee whose brother, Willie Appleberry.
was at the time and still is Respondent's manager.' During
his conversation with Ollie, Eddie informed him that he
(Eddie). his brother Samuel, and Fink were in favor of hav-
ing the Union represent them. Ollie suggested that theN in-
form his brother. Appleberry, and Respondent's president,
Calvin Jones. about the Union, but Eddie discouraged tak-
ing such action.!
The next day. June 16, F:ink also spoke to Ollie about the
Union, and again Ollie suggested they "confront" manage-
ment about it, to which Fink responded that he was not to
do so and that the Union would "confront management."
Also, Ollie stated that he would like to hear about the
Union from its representatives, and Fink told him that
there would be a meeting with representatives of the Union
at his house the next night (June 17). During the day of
June 17, employee Melvin Santiel, when asked about it by
Fink, informed him that he was not willing to have union
representation. By the end of the workday of June 17, Fink
had informed the other four employees,' the two Crosby
brothers, Santiel. and Ollie, that there would be a meeting
with the union representatives at his home that night. How-
ever, the meeting was attended by only three of the employ-
ees. Fink and the two Crosby brothers.
C. Resolution of the Issues
Essentially, the resolution of the issues herein requires
resolutions of categorical conflicts in the testimony of Fink
and the two Crosby brothers, on the one hand, and the
testimony of Jones and Appleberry, on the other hand, in
light of the circumstances herein, and a determination of
the appropriate inferences to be drawn therefrom. Said
resolutions and determination set forth hereinbelow are
based upon a view of the record as a whole. Following are
analyses of the testimony of each of the three witnesses of
General Counsel and the opposing testimony' of Respon-
' By its answer Respondent admits that Willie Appleberry, hereinafter
referred to as Appleherry. is its service manager, its agent, and a supervisor
within the meaning of the Act
It is noted that Ollie was not called as a witness.
1 While there is some testimon, by Respondent's witnesses of a sixth em-
ployee by the name of Bledsoe, Jones was vague about him, and it appears
from Appleberrm's testimony that at the time material herein Bledsoe was no
tonger employed
dent's witnesses. It is noted as facts relating to their testi-
mony that June 20 was the first workday after the afore-
mentioned meeting with the union representatives and that
employees were normally paid on Wednesday for the pre-
ceding week. It is further noted, based upon uncontradicted
and credited testimony, that during the day on June 20 all
three were requested by management to report the number
of hours they had worked the previous week, a request
which had never been made previously.
D. The Testimonl Re Fink
Fink was hired by Respondent on or about February 1,
1977. According to the uncontradicted testimony of Fink,
on June 20 he called the office while in the field about some
parts needed for a job and was told by Jones that he (Jones)
wanted to talk to him that afternoon. Also. later in the day,
about 3 p.m.. he again called the office to report he had
finished a job and had two more to do and Appleberry told
him not to do them. "just come on back to the shop." When
he returned to the shop about 4 p.m., Appleberry told him
Jones wanted to talk to him, and the two went to Jones'
office where the three held a conversation. Fink testified as
follows with respect to the conversation:
Appleberry didn't say too much. Jones asked me
when I first came in that-He told me he was very
unpleased with my performance of my duties.
And I told him I'd always done done a good eight
hours' work for eight hours' pay.
And he said that he had had a phone call from the
IBEW that morning: and asked me if I knew anything
about it.
And I told him no.
And he said. "Well, have you ever been approached
by a Union?"
And I said no.
And he said, "Well, why do you want to go Union?
For more money, or what?"
And I told him I didn't know what he was talking
about.
So he said, "Well, I'll tell you one thing. Before this
shop ever goes Union, we'll close down the doors and
we'll move somewhere else under a different name."
So I said. "Well, I don't know why you're blaming
me for all this."
And he said, "Well, Russ, if you're not going to level
with me, then, you're terminated as of now."
Fink further testified that before he left he was given his
paycheck for the prior week, which had previously been
prepared.
Jones testified that he first learned about the Union when
he received three forms from the state "unemployment of-
fice" which indicated that Fink and the Crosby brothers
had been terminated "because of trying to organize my
Company."'
It appears that in April Fink had requested a raise and a
loan. Jones testified that during the week of June 12 he
(Jones) and Appleberry discussed Fink's request with him
4 It is noted that he testified that he received the forms on a day between
June 24 and 27, but it is also noted that the parties stipulated that a copy of
the charge in this proceeding was received on June 23.
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and evaluated his job performance. As to that conference,
Jones testified that he told Fink "that we could not handle
Company loans to employees such as that." Jones further
testified as to the request for a raise that "we discussed-the
problems we were experiencing with him,"5 that he told
Fink "we felt that he could do better than he was doing,"
and that he could have "another review in one month's time
to see if he could improve himself .... "
Appleberry also testified about said conference. Accord-
ing to his testimony, the request for a raise and loan was
denied. He also testified that he, Appleberry, told Fink that
the quality of his work fluctuated. Appleberry made no
mention of discussing specific jobs with him or that he was
given a month to improve. However, he testified that prior
to the conference he had three meetings in June with Fink
in which he complained about his job performance. On
cross-examination Fink testified that on one or two occa-
sions Jones or Appleberry had spoken to him about leaving
a job uncompleted, but denied that he had ever been told
that he had a month to "straighten up." Fink further testi-
fied that he had been refused a request for a loan and a
raise because of "financial problems," but it was his recol-
lection that it occurred in April. Fink further testified with-
out contradiction that in early June the Company held a
meeting with all of the electricians, of whom there were six
at the time, and mentioned complaints about jobs without
specifying any person. He also testified without contradic-
tion that Jones had complimented him three or four times
on his work performance and that on the last occasion, in
March or April, Jones told him he was "doing a fantastic
job."
(It is noted that there was quite a bit of testimony about
Fink's private use of a company gasoline credit card and his
purchase of some materials through the Company, but, be-
cause of Jones' testimony that these matters had no bearing
on his discharge, said testimony is disregarded.)
As to the termination interview with Fink on June 20,
Jones testified that, based on a report from Appleberry of
dissatisfaction with Fink, he told Fink he felt that Fink
"had not improved"; that Appleberry discussed some "job
tickets" with Fink, the details of which he could not re-
member; that he (Jones) told Fink he was not going to
tolerate his stretching out jobs and making Appleberry's job
"any tougher than it already was"; and that he told Fink he
was terminated. Jones then gave Fink his paycheck, which
had been previously prepared. When questioned as to
whether he had made up his mind to discharge Fink prior
to meeting with him on June 20, Jones' testimony is con-
fused in that he first stated that he had not, and then testi-
fied that he had and had Fink's check prepared prior to the
interview. Jones denied that there was anything said in the
meeting with Fink regarding "any Union activity or at-
tempts to unionize" the Company.
Appleberry testified that the first time he heard anything
about the Union was when Jones received cards from the
"unemployment office." Appleberry further testified that in
the week prior to June 20, Fink's job performance got
worse. When asked to described in what way it got worse,
Appleberry made some general observations to the effect
According to Jones, they discussed three or fbur jobs with Fink which he
either had not completed or had taken too much time to do.
that Fink was taking too long to do jobs. Appleberry's tes-
timony as to Fink's termination interview is as follows:
A. Well, I had pulled some work tickets. And Cal
and I'd discussed it. We went over some tickets that
morning. And we was backing up on our work. And
we went over the tickets.
At the time in the meeting, I told Russell about
those tickets that I had and, uh-So I told him about
those tickets. Then I-I-No; he and Cal was talking
first.
And, then, Cal was telling him about the work. And
I -I says, "Well, I got the tickets here." And I pointed
out the time that it was taking him and what he was
doing on it.
Q. And did he have any response as to why it was
taking him so long?
A. Well, he told Cal that he was doing his best at
the time. But we knew that he wasn't.
Q. All right. And was anything said at that meeting
with respect to any Union activity by Mr. Fink or any
Union activity going on at the Company?
A. No, not at that time.
Q. And how did that meeting end? What was said-
A. That meeting, uh-
Q. -to conclude it?
A. It ended with, uh, he'd-him being terminated.
Fink, on cross-examination, testified that he recalled only
two tickets he was shown on June 20, that one was with
regard to a circuit breaker he had not replaced, and that he
told them that he had obtained the required serial number,
turned it over to Appleberry to order a new part, and had
not replaced the old one because the replacement had not
yet been received. As to the second ticket, he testified that
he was accused of not properly reading the voltage on a
broiler, to which he replied that he had and that there was
no more talk about it. This testimony by Fink with respect
to the two tickets was not contradicted, except by the
above-quoted testimony of Appleberry that the complaints
were with regard to excessive time.
It is noted that when asked why he (Jones) terminated
Fink only a week after the interview in which he (Jones)
testified that he had given Fink a month to improve, Jones
stated that in talking with Appleberry about some jobs, Ap-
pleberry indicated to him that he (Fink) "was going back-
wards, instead of forwards."
For reasons stated hereinbelow, I credit the above-out-
lined testimony of Fink, and find that Jones and Apple-
berry were not convincing witnesses insofar as their testi-
mony contradicts that of Fink. It is noted that the work
tickets to which Respondent's witnesses referred were not
offered into evidence, nor was there any offer to make them
available.
E. The Testimony Re Samuel Crosby
Samuel was first employed by Respondent from Febru-
ary 1976 to February 1977 at which time he quit. There-
after he called Respondent and asked to be rehired and
returned to work for Respondent in March 1977.
When Samuel reported for work on the morning of June
20, he experienced trouble with a truck which was assigned
110
LIGHTING SYSTEMS C(O.
to him and was told by Appleberry to work that evening.
He reported back to work about 4 p.m. and was told by
Appleberry that Jones wanted to see him in his office. The
two then went into Jones' office. Samuel testified that Jones
told him that "He had had an annoying phone call from a
reliable source" that Samuel "and two others had been hav-
ing a meeting with the Union or the IBEW." His testimony
continues as follows:
And he asked me, "What have you got to say about
that?"
I told him, "I don't know what you're talking
about."
Then he says, "Also. I hear you been putting appli-
cations [ostensibly for employment]."
I say, "Yeah; I put in a few."
And he says. "Well, the reason What What's the
matter? Aren't you satisfied? Because the reason you're
at where you're you're at is because you don't want
to learn these other things: like, you don't want to
you couldn't do that speaker system at Jack-in-the-Box
Granada Hills."
And Willie Appleberry then told him, no, that I had
done that one.
And then he says, "Well, before I go Union. I'll
close the doors."
He says, "What do you have to say' about that?"
I says, "I-I don't know. I I don't understand
what you're talking about."
And he says, "Well, since we can't level with each
other-"
JUDGE: What?
WiTNmIss: "Since we can't level with each other, I'm
going to have to terminate you."
Samuel further testified that he was then given his pay-
check, which had already been prepared.
Jones testified that during the week of June 6, he and
Appleberry gave Samuel his "semiannual evaluation," at
which time he admonished him for not expanding his capa-
bility to do other jobs than working on signs and told him
that he was not entitled to a raise' until he learned other
functions. Jones further testified that starting about a week
before June 20 he received reports that Samuel was making
job applications with other employers, that when he called
him in on June 20 he asked him whether it was true, and
that Samuel admitted it was. He further testified that he
asked Samuel when he was leaving. Jones' testimony, con-
tinues as follows:
A. And he says, "I'm not sure." And, "As soon as I
can find another job."
And I told him-I asked him at that time if he
would give us the respect of-of notice.
And he says he didn't know at that time.
And I was a bit perturbed about that, because I felt
that at least someone owed the company that they're
working for time allowance time to replace the indi-
vidual.
6 It is noted that Appleberr) testified that it was June 20 when Samuel
received his semiannual evaluation and was told he was not going to get a
raise. It is also noted that Samuel denied having received the week of June 6
evaluation interview to which Jones testified.
At that time I told him then I didn't feel that he was
doing our Company any favors by staying there and in
our employment when he was actively looking for an-
other job in another line of' business and he was going
to pursue that. I told him that I I felt that we should
just leave each other's company parting friends, so
there would be no hard feelings, and I thought that we
should terminate our relationship. And I did have a
check ready.
Q. In that conversation of June 20, 1977, did you
say anything or was anything said about Union activi-
ties by Mr. Crosby or anyone else in your organiza-
tion?
A. No.
Q. Was anything said about a Union?
A. No.
It is noted that while Jones testified that he was per-
turbed that Samuel would not assure him that he would
give notice before leaving to afford Respondent time to find
a replacement, he also testified that he had Samuel's check
ready, which clearly indicated that he intended to discharge
Samuel at that time' (when he apparently had not obtained
a replacement). Appleberry's testimony about the interview
is substantially in accord with that of Jones.
I find that Samuel was a more convincing witness than
Jones and Appleberry and credit his above-outlined testi-
mony. Also. I discredit the testimony of the latter two inso-
far as it contradicts Samuel's testimony. These findings are
predicated on the record as a whole and on reasons set forth
hereinbelow.
F. The Testi,,on, Re Eddie Croshby
Eddie was first employed by Respondent in June 1976
but quit after 2 weeks. Subsequently he called Respondent
and asked to be rehired, which was in January 1977. It
appears that on or about June 13 Jones told him his pay
would be raised from $4 per hour to $5.50 per hour starting
the following Monday (apparently June 20).
He reported for work in the morning of June 20. but,
since there was no truck available for him, he was asked by
Appleberry if he would like to work in the shop. He re-
sponded that he would rather come in that afternoon and
work that night, to which Appleberry replied, "okay." He
reported to work that afternoon about 4 p.m. Apparently a
short while later, he was summoned to Jones' office by Ap-
pleberry, and he and Appleberry joined Jones in the latter's
office. Eddie's meeting with the two was after their above-
described interviews with Fink and Samuel. Following is
Eddie's testimony as to what occurred in Jones' office:
A. Calvin Jones asked me what was going on.
And I I told him, "Well, what do you mean
'What's going on?'"
He says He says, "I just had to terminate your
brother and Russell Fink for Union activities."
And I go, "Well, I don't know what you're talking
about."
7 As indicated hereinabove. June 20 ssas a Monday and the regular pay-
day for the preceding week is on a Wednesday.
III
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he says, "Come on. Don't give me that shit,"
just like that.
So then he started asking me if I was dissatisfied
with the job.
And I told him, "Look, you didn't call me in here to
ask me if I was dissatisfied with the job or not," I told
him, "Why don't you just tell me what what's on
your mind?"
And he asked he told me I hen he told me, he
says "Well," he says, "Sam and Russell Fink had, uh-
were involved in some Union activities," and he says,
"I know you didn't have nothing to do with it," he
says, uh, "So what seems to he the problem?"
I told him there was no problem.
Q. Was anything discussed about your continuing
as an employee with the Company at that time?
A. He had asked me He asked me, "Well." he
says-he says-- He asked me if l wanted to resign from
the Company.
And I said no.
He says-He says, "If you don't want to resign," he
says, "do you want to keep on working for us?"
And I said, "No, not under these conditions."
And he goes. "What conditions are these?"
And I told him "As far as benefits and the whole
thing."
And he says, "Well," he says, "do you want to re-
sign?"
And I said no.
And, then, he said, "Well, then, I'm sorry."
And I said, "I'm sorry, too." At that time I stood up,
and Willie Appleberry handed me my check, and I
walked out the door.
Jones testified as follows with respect to the interview
with Eddie on June 20: that he called him into the office to
tell him about his brother's termination; that he explained
it was because he (Samuel) "was actively looking for other
work," and, in effect, it did not make for a compatible
working arrangement; that Eddie said that he did not think
"that's very fair"; that Eddie told him he was unhappy, was
not going to work and said "I'm going to resign": that he
(Jones) was shocked because he was pleased with his work
and the prior week had given him "a rather sizable increase
in pay"; that he told Eddie he did not want him to resign
and "wouldn't accept it"; that he also told him to take a
few days off to consider it; and that he did not give him a
check at that time.
Appleberry testified that Eddie was told on June 13 that
he was going to get a raise. Appleberry further testified as
to the June 20 meeting with Eddie as follows: that Jones
told him he had just terminated his brother; that the reason
for it was that "his performance weren't up to par, and it
didn't seem like he was just going to do any better"; and
that nothing was said about union activity. There was no
mention in Appleberry's testimony of Jones stating that
Samuel was looking for other work, nor was there any men-
tion of Eddie offering to resign or whether or not he re-
ceived a check at that time.
It appears that on Wednesday, June 22, Appleberry went
to Eddie's home and had a conversation with him. Jones
testified that Appleberry went there to give Eddie his check
for the previous week (which Jones testified he did not give
him on June 20) and also that he asked Appleberry to try to
help Eddie "reconsider about coming back," because "he
was a damn good employee." Appleberry's testimony as to
why he went to Eddie's home confbrms with the above
testimony of Jones.
Eddie and Appleberry testified as to their conversation at
the former's home. Eddie testified that Appleberry said he
wanted Eddie and his brother to come back to work: that
Appleberry asked him to "come down and talk to Cal
[Jones]" and stated that Jones was "pissed oft' and "said
words that he didn't mean": and that Appleberry also
stated that if he (Eddie) were to talk to Jones and go back
to work, then eventually he (Appleberry) would be able to
"get Sam back in." Eddie further testified that Appleberry
said. "I know and and Cal knows that vou and Sam didn't
have nothing to do with with that Union." Eddie also tes-
tified that Appleberry added, "as soon as you guys signed
those cards at that meeting, we got a call saying that you
guNs had signed the cards for to -to join the Union."
Appleberry testified that he told Eddie he had brought his
check: that he urged him to "reconsider coming back"; that
E'ddie said he would have to talk to Jones first and asked
about his brother; that he (Appleherry) said he could not
promise "anything about Sam." but would talk to Jones
about it: and that Eddie said he would "come up" the next
day and talk to Jones. It is noted that Appleberry's testi-
mony contains no mention of the references in Eddie's tes-
timony about the Union and union activity. It is further
noted that Appleberry was not questioned about said refer-
ences.
At this point it appears appropriate to make findings
about the references to the matter of Eddie's check for the
week prior to June 20. Eddie testified that Jones gave him
his check for the preceding week on June 20, which Jones
denied. Both Samuel and Fink testified they saw the check
on June 20. Jones testified that he sent Eddie's check for
that week with Appleberry on June 22, and Appleberry
testified that he gave Eddie a check when he saw him on
June 22. Eddie testified that the check he received on June
22 was for overtime that he worked the previous week. A
check stub received in evidence supports this testimony. Re-
spondent did not offer or make available the cancelled
check for Eddie's previous week's work, which Jones
claimed he sent to Eddie on June 22. 1 credit the testimony
which supports the finding that Eddie received said check
on June 20, and so find. It is noted that Jones testified that
Eddie received the raise to $5.50 per hour for the work he
did during the week ending June 26, which Eddie denied. A
check stub received in evidence supports Eddie's denial and
the finding that for the work he did during said week he
received $4 per hour, contrary to Jones' testimony. Thus the
two check stubs, the only documentary evidence in the rec-
ord, supports my conviction that, up to this point, Jones'
testimony, when contradicted, should not be credited.
Eddie testified that he reported to work at 9 a.m. on June
23: that Jones was not in his office; that Appleberry told
him to come out with him on "two or three small jobs"
which took them about 2-1/2 hours; that when he returned
he talked to Jones and both stated they had no "hard feel-
ings"; that when he walked into Jones' office Jones "had
three cards from the unemployment office saving that we
112
LIGHTING SYSTEMS CO.
[ostensibly Fink and the two Crosby brothers] had been
terminated for Union activities," and that Jones stated,
"Why did you put that on the card?" Eddie further testified
that he answered, "Well, that's what I was terminated for,
wasn't I?" To which Jones responded, "Oh, okay." While
Jones did not categorically deny the above testimony, he
did testify that the only time he discussed union activities
with Eddie was on June 27, when he asked him how he
could "fill out" the card as he did, to which Eddie re-
sponded that "if he hadn't put that in" he would not have
been eligible for unemployment benefits. Later, however,
on cross-examination, he testified the conversation was on
June 23. Eddie's above testimony is credited.
Eddie testified that besides working only 2-1/2 hours on
Thursday, he worked only 5 hours on Friday.8 According to
Appleberry's uncontradicted and credited testimony, Eddie
stated that he did not want to work the rest of the day on
Thursday after he talked to Jones. As to Friday. Eddie tes-
tified that when he returned to the shop, after working 5
hours, he found it closed. On the following Monday, June
27, according to both Eddie's and Appleberry's testimony,
Appleberry started to give him work instructions, but Eddie
stated that he wanted to talk to Jones. Eddie's testimony as
to what then occurred is as follows:
A. I walked up to him [Jones]. I told him. "Look at
my cards." I had my cards in my hand, and I put them
there. He looked at them and said, "What's the mat-
ter?"
I said, "What do you mean what's the matter?" I
said, "Look at the time on them, Man."
And he says, uh-I told him, "I can't make it on
that time."
And he looked at me and says, "Well," he says,
"there's nothing I can do about it."
And that's when 1 told him, "Well, you know what?
What am I supposed to do?"
And he says, "Well," he says, "then, I guess we'll
terminate you. That way you can go out there and
collect unemployment."
Q. Well, now, earlier you said something about your
brother. When was it in the sequence of this conversa-
tion that you mentioned your brother Sam?
A. Well, see, because he had asked me, he says,
"Are you upset because-because we don't hire your
brother?"
And I said, "No." I told him, "I'm not upset about
that," I told him, "What-What gets me is that you go
to my house and get me down here under those pre-
tenses, and, then, when I-when it comes down to it,"
they're both going to stand there and deny it.
Both Jones and Appleberry testified that Eddie asked
Jones when his brother was going to be coming back; that
when Jones stated he would not reconsider rehiring Samuel,
Eddie said that he understood that he (Samuel) might be
rehired; and that when Jones indicated that it was not
8 While it is noted that the check stub in evidence indicates that he worked
11-1/2 hours for the week ending June 26, Respondent did not dispute his
testimony of the hours he worked on Thursday and Fnday of that week. A
possible explanation is that the additional 4 hours (above the 7-1/2 hours to
which Eddie testified) were credited to him for the previous Monday.
being considered, Eddie stated that he was not going to
work either.
With regard to this occasion, Jones and Appleberry were
the more convincing witnesses. Moreover, it is clear from
Eddie's own testimony of the incident that he was per-
suaded to go back to work on the assumption that his
brother would eventually be rehired, which would support
a finding that he was angered to find that his assumption
was false. Therefore, I credit the testimony of Jones and
Appleberry as to said incident. In addition, I do not believe
that he could reasonably have been upset about the number
of hours he worked on Thursday and Friday, since it ap-
pears that he did not want to work more than 2-1/2 hours
on Thursday and, while he was given only 5 hours of work
on Friday, that of itself could not have reasonably justified
his complaint about his hours. There must have been days
when he normally worked less than 8 hours, for he testified
that he normally worked 30 to 40 hours per week.9 Jones
credibly testified that he did not recall Eddie raising with
him the matter of the hours he had worked.
Concluding Findings
Based upon the credited testimony of Fink and the
Crosby brothers as to their interviews on June 20, it is con-
cluded that Respondent had knowledge of the union activi-
ties of the three employees. This conclusion is predicated
not only on the finding that said three employees were more
convincing witnesses with respect to said interviews but also
on the following circumstances: (I) Respondent decided to
discharge all three that day, as evidenced by the prepara-
tion of their checks prior to the interviews, (2) June 20 was
the first workday after the three had met with the union
representatives; (3) June 20 was the first day of a pay period
and nothing was said to any of them with regard to their
employment at the start of the day; (4) June 20 was not the
normal payday; (5) the three were the only employees who
met with the union representatives, or signed cards for the
Union, and were the only employees to be discharged; (6)
the three employees represented 60 percent of Respondent's
work force of electricians and their discharges constituted
an unreasonably sudden and drastic reduction of said work
force.
As to Respondent's contention that Fink and Samuel
were discharged for cause, as indicated above, I find that
the testimony in support thereof was unconvincing. As to
Respondent's contention that Eddie resigned on June 20,
the advance preparation of his check clearly establishes that
Respondent intended to discharge him. While it appears
from Eddie's testimony that he stated he did not want to
work "under these conditions," he adamantly refused to
resign. This and the fact that at the end of the interview he
was handed his check reasonably must be construed as evi-
dence that he was discharged. It is noted that Eddie's testi-
mony contained seemingly contradictory statements attrib-
uted to Jones on June 20 and Appleberry on June 22. Eddie
candidly testified that Jones said on June 20 that "Sam and
Russell Fink . . . were involved in some Union activities,"
9 General Counsel argues that Respondent deliberately reduced his work
hours for those 2 days. In my opinion, the record will not support such a
finding.
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and ". . . I know you didn't have nothing to do with it."
Also, he candidly testified that Appleberry said on June 26,
"I know-Cal [Jones] knows that you and Sam didn't have
nothing to do with-with that Union." However, Eddie fur-
ther credibly testified that Appleberry stated, "As soon as
you guys signed those cards at that meeting," he and Jones
got a call saying "you guys" had signed cards "to join the
Union." The only conceivable resolution of the apparent
contradictions is that they are the result of faulty communi-
cation and that what was intended by the words "didn't
have nothing to do with it" was that Eddie and/or Eddie
and Samuel did not play an active role in the campaign on
behalf of the Union.
While it might be argued that Respondent would not
have asked Eddie to return, if it, in fact, had discharged
him, I am not persuaded by such an argument. The record
clearly discloses that he was considered an excellent
worker, and I am of the opinion that after Jones' emotional
response (the discharge of the three employees) to learning
of the union activity of the three employees, he realized he
had overreacted' ° and thereby reduced his staff of electri-
cians to an insufficient level.
Based upon the above analyses and the credited testi-
mony, I conclude that on June 20 Respondent violated Sec-
tion 8(a)(1) of the Act by unlawfully interrogating Fink and
the two Crosby brothers about union activity; by threaten-
ing to close its shop "before I go Union"; and by giving the
impression of surveillance of employees' union activities." I
further conclude that Respondent violated Section 8(a)(l)
of the Act on June 22 by again creating the impression of
surveillance of employees' union activity.'
Based upon the above analyses, the credited testimony,
and the above conclusions, I further conclude that Respon-
dent violated Section 8(a)(3) and (1) of the Act by discharg-
ing Fink and the two Crosby brothers on June 20. It is
further concluded, however, that after Eddie was reinstated
on June 23, he voluntarily quit his job on June 27 and was
not discriminatorily discharged on said date as alleged.
IV. THE EFFEC(T OF THE UNFAIR LABOR PRAC(TICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section II1, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. FHE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
10 Evidenced by Eddie's credited testimony that Appleberry told him that
on June 20 Jones had been "pissed off" and "said words he didn't mean."
" Evidenced by Samuel's credited testimony that Jones told him he had a
phone call "from a reliable source" that Samuel "and two others" had been
meeting with the Union.
12 Evidenced by Eddie's credited testimony that Appleberry told him that
"we got a call saying that you guys had signed the cards to join the Union."
tices found herein and to take certain affirmative action, as
provided in the recommended Order below, designed to ef-
fectuate the policies of the Act.
It having been found that Fink and Samuel Crosby were
unlawfully discharged on June 20, 1977, it will be recom-
mended that Respondent be ordered to offer them immedi-
ate and full reinstatement to their former jobs or, if their
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges. It will be further recommended that Respondent
be ordered to reimburse them for any loss of pay they may
have suffered as a result of its unlawful action against them
together with interest thereon to be computed in the man-
ner prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). '3
It having been found that Eddie Crosby was unlawfully
discharged on June 20, 1977, but was thereafter reinstated
on June 23, 1977, it will be recommended that he be made
whole for any loss of pay he may have suffered for the
period between his said discharge and reinstatement to-
gether with interest thereon to be computed as prescribed
hereinabove.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
CONC I USIONS ()F LAW
1. The Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act on
June 20, 1977, by the following conduct:
(a) Unlawfully interrogating employees about activities
on behalf of, or adherence to, the Union.
(b) Threatening to close its plant rather than have its
employees represented by the Union.
(c) Unlawfully creating the impression of surveillance of
its employees' union activities.
4. Respondent violated Section 8(a)( ) of the Act on
June 22, 1977, by unlawfully creating the impression of sur-
veillance of its employees' union activities.
5. Respondent violated Section 8 (aX3) and (1) of the Act
on June 20, 1977, by discriminatorily discharging Russell
Fink, Samuel Crosby, and Eddie Crosby.
6. General Counsel has failed to prove by a preponder-
ance of the evidence that Eddie Crosby, who was reinstated
on June 23, 1977, was again discriminatorily discharged on
June 27, 1977, in violation of Section 8(a)(3) and (1) of the
Act as alleged.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
11See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
114
LIGHTING SYSTEMS CO.
ORDER'4
The Respondent, Lighting Systems Co., Burbank, Cali-
fornia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unlawfully interrogating employees with respect to
activities on behalf of, or adherence to, International Broth-
erhood of Electrical Workers, Local Union No. 2295, AFL-
CIO, CLC, or any other labor organization.
(b) Threatening employees that it would rather close its
plant than have its employees represented by said Union or
any other labor organization.
(c) Creating the impression that it is engaging in surveil-
lance of activities of its employees on behalf of said Union
or any other labor organization.
(d) Discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment of its em-
ployees to discourage membership in said Union or any
other labor organization.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Russell Fink and Samuel Crosby immediate
and full reinstatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay suffered by
them by reason of their unlawful discharge in the manner
set forth in the section hereinabove entitled "The Remedy."
(b) Make Eddie Crosby whole for any loss of pay he may
have suffered between June 20, 1977, the day he was unlaw-
fully discharged, and June 23, 1977, the day he was rein-
stated, in the manner set forth in the section hereinabove
entitled "The Remedy."
(c) Place at its place of business in Burbank, California,
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
for Region 31, shall, after being duly signed by an autho-
rized representative of Respondent, be posted by Respon-
dent immediately upon receipt thereof and be maintained
"1 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.
'l 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
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"
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 31. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
The allegation that Respondent violated Section 8(a)(3)
and ( I) of the Act by discharging Eddie Crosby on June 27,
1977, is hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees
about activities on behalf of. or adherence to, Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 2295, AFL-CIO, CLC, or any other labor organi-
zation.
WE WILL Nor threaten to close our plant rather than
have our employees represented by said Union or any
other labor organization.
WE WILL NOT unlawfully create the impression of
surveillance of our employees' activities on behalf of
said Union or any other labor organization.
Wl Wlltl NO( discriminate against any employee in
regard to his hire or tenure of employment or any term
or condition thereof to discourage membership in said
Union or any other labor organization.
WE WILl, NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights under Section 7 of the National Labor Re-
lations Act.
WE Willl offer Russell Fink and Samuel Crosby im-
mediate and full reinstatement to their former jobs or,
if their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay suffered by them by reason of their unlaw-
ful discharge on June 20, 1977.
WE WILL make Eddie Crosby whole for any loss of
pay he may have suffered between June 20, 1977, the
day he was reinstated.
LIGHTING SYSTEMS CO.
115