MCC Of Florida, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1519 (N.L.R.B. 1976)

MCC OF FLORIDA INC 1519
M C C of Florida , Inc and International Union of
Operating Engineers , Local 675, AFL-CIO Cases
12-CA-6778 and 12-CA-6816 (1-2)
June 21, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 11, 1976, Administrative Law Judge
Melvin J Welles issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (C A 3 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Respondent excepts to the Administrative Law Judge s findings
that L T Minchey was an admitted supervisor at the time of the events in
question Early in the hearing Respondent declined to join in a stipulation
concerning Minchey s supervisory status Respondent conceded that Min
chey was a supervisory foreman of the 24 inch pile driving crew with the
authority to hire and fire or effectively recommend such actions prior to
March 28 1975 However Respondent contends that on or about that date
Minchey at his own request was made a crane operator and from that time
forward was no longer a supervisory foreman The record indicates that
while Minchey operated a crane after March 28 he retained his position as
supervisory foreman of the 24 inch pile driving crew Thus Minchey direct
ed and was responsible for the day to day operations of the crew admitted
ly exercised independent judgment over the work of the crew kept a time
log and reported the worktime of crewmembers to the Respondent Fur
ther Minchey trained newly employed crewmembers and possessed and in
fact exercised authority to effectively recommend employees for discharge
The record also establishes that as with other supervisory foremen
Minchey s line of authority ran directly to the project superintendent Addi
tionally while there is evidence that Minchey was hourly paid and did not
receive the guaranteed salary option available to other supervisory foremen
the record reveals that this option was not made available to Minchey even
during the period when he was admittedly a supervisor Accordingly we
find in agreement with the Administrative Law Judge that at all times
material herein Minchey was a supervisor
orders that Respondent M C C of Florida, Inc,
Tice, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order
DECISION
STATEMENT OF THE CASE
MELVIN J WELLES, Administrative Law Judge This case
was heard at Fort Meyers, Florida, on various dates in
September, October, and November 1975, based on
charges filed on May 12, 1975, amended on May 15 and
29, 1975, and additional charges filed on June 26, 1975,
with a consolidated complaint issuing on July 11, 1975,
alleging that Respondent violated Section 8(a)(1) and (3) of
the Act The General Counsel and Respondent have filed
briefs
Upon the entire record in the case, including my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a Florida corporation with its principal of-
fice and place of business at Tice, Florida, is there engaged
in the construction of a bridge across the Caloosahatchee
River, under a federally funded contract with the State of
Florida During the year prior to the issuance of the instant
complaint, Respondent received goods and materials val-
ued in excess of $50,000 at its Tice, Florida, place of busi-
ness, which were shipped to it directly from points located
outside the State of Florida I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act International Union of Operating Engi-
neers, Local 675, AFL-CIO, the charging party herein, is a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Posture of the Case
This case involves some 22 separate alleged violations of
Section 8(a)(1),1 and 8 alleged discriminatory discharges or
layoffs There are many conflicts between the testimony of
General Counsel and Respondent witnesses, with many of
them crucial to a resolution of the issues herein There were
some 33 different witnesses during this extended hearing,
12 for the General Counsel, and 21 (plus 2 General Coun
sel witnesses recalled as witnesses) for Respondent Natu-
rally, with that number of witnesses testifying about events
occurring 5 to 6 months earlier, recollections could not be
perfect, discrepancies are to be expected, and in and of
themselves such discrepancies do not furnish any sure
guide to resolving credibility Both the General Counsel
i Threats interrogations solicitations to abandon union activity creating
an impression of surveillance and the like
224 NLRB No 201
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Respondent, in their briefs, have sought to demon-
strate why their witnesses should be credited In setting
forth the facts I shall, of course, be resolving these conflicts
in testimony, explaining as I go along the reasons therefor,
and taking into account the reasons advanced by the par-
ties
B The Facts
The Company started at the bridge construction project
in December 1974 Gary Peters, a company vice president
who was in charge of the project, began work with four
employees, Foreman Dave Strickland, Crane Operator
L T Minchey (an admitted supervisor at the time of the
events in question herein), Engineer G V Simpkins (also
admittedly a supervisor at all relevant times), and office
clerical Mitch Massengale
Some time in April 1975, a union organizing drive be-
gan On April 28, employee Thomas Wells called a meeting
to take place after work The meeting was held several
miles from the jobsite and was attended by company em-
ployees Thomas Wells, William Wells, Dennis Fields, Wal-
ter and Robert Zeller, Tommy Thomas, Walter Golden,
Bruce Lambert, Frank Rubano, and someone identified as
"Little Jimmy " All of these company employees, except
Dennis Fields, signed authorization cards for the Union at
that time Shortly after the meeting Thomas, who did not
testify although he is an alleged discrimmatee, called Proj-
ect Engineer G V Simpkins and told him there were peo-
ple on the job trying to organize a union, that there had
just been a union meeting, but that he did not wish to
mention any names The next day Simpkins reported this
conversation to Peters Peters told Simpkins, who had indi-
cated the call came from a bar, that it sounded like "bar-
room bullshit" to him Either that afternoon or the next
morning, Simpkins admitted asking his two engineering as
sistants , Cani Litton and Dennis Fields, whether they had
heard rumors of a union organizational drive at the project
They said, according to Simpkins, that they had not heard
any rumors, both indicating to Simpkins that they wanted
nothing to do with a union Simpkins indicated to Litton
and Fields that he thought they would not have to vote if
there were an election because they were salaried employ-
ees
Fields' version of this conversation differs somewhat
from Simpkins', although the general substance is much
the same According to Fields, Simpkins locked the office
door, with Fields and Litton there, turned to Fields, and
said "All right, what's your buddy trying to dog" Fields
said `What do you mean9" and Simpkins said "This stuff
about union," proceeding to ask Fields whether he had
heard about it, with Fields saying that he had "heard talk
When Litton said he really didn't have anything against
unions," Simpkins said Well, I have something against
them And we re going to do something about it" On a
previous occasion, according to Fields, Simpkins had asked
Fields whether Thomas Wells was a friend, Fields had re-
sponded affirmatively, and Simpkins said, "You know, he
almost didn't get hired," because he was in the Union At
the April 29 or 30 conversation behind the locked door,
Simpkins told Fields and Litton according to Fields, that
they were in management positions, and therefore he did
not want them to take any part in the union organizational
drive In the light of Simpkins' openly expressed dislike of
unions, because Peters himself testified that when Thomas
Wells was hired, the subject of his being a "union man"
was mentioned by Wells to Peters,2 and because Fields'
version of what occurred carried with it a ring of truth, I
credit his version 3
After work that same day, Thomas Wells met a number
of employees at the Rainbow Lounge, and solicited the
signatures of employees Styles and Geraldson Thomas
and Walter Zeller were present at the time Simpkins saw
Thomas Wells leaving the Rainbow Lounge as he drove up
to it on that occasion, and saw the company employees in
the Lounge There is no evidence that there was any union
discussion going on while Simpkins was there, nor is there
any suggestion of surveillance involved in this incident-
this was a place frequented by Simpkins, as well as by
many of the employees
On Wednesday, April 30, 1975, Peters thought he saw
Thomas Wells standing on one of the barges without his
hardhat (Company rules provide that they be worn at all
times) Peters was far enough away from Wells so as not to
be sure, and when he reached the barge, Wells was wearing
both his life jacket and hardhat Peters asked Wells,
"What s your game9" The ensuing dialogue was reported
differently by Peters and Wells According to Peters, Wells
asked him what he meant, and Peters replied, `The game
that you're playing with the hardhat and your life jacket,"
adding that he was "tired of seeing you on this job without
your hardhat and life jacket on " When Wells asked if he
was being "sent to the bank," Peters said he was not, be-
cause he could not be absolutely sure that Wells did not
have them on After Wells indicated that the employees
were concerned about safety on the job, with Peters saying
They picked a good one when they picked you to talk to,"
Wells volunteered that he had "some old cards in my brief-
case and we're going to try to get something done about
it " He explained that he was talking about "union cards,"
and that he had not yet decided what to do about them,
and Peters said, "I don't give a damn about the cards " I'm
telling you to wear your hardhat and your life jacket " The
conversation ended shortly thereafter with Peters telling
Wells to `Get back to the crane and run it, And if I ever
see you without your hardhat or your life jacket again, I'm
sending you to the hill then '
According to Wells, the conversation took quite a differ-
ent turn He responded to Peters' `What's your game9 '
with "I don't play games " Peters then said, "Don't bullshit
me Several people have come to me and told me that
you re trying to start a union " When Wells admitted to
having some cards signed, Peters said "Wells, you lied to
me," and went on to say that Wells had told him when he
2 Peters testified that he told Wells at the time that he did not care if Wells
had a union book or not
3 Although I do not believe that Simpkins was deliberately fabricating in
giving his version of the conversation I merely conclude that Fields ver
sion was the more accurate I do not credit Litton s testimony at all His
credibility was completely destroyed at the hearing for reasons it is unneces
nary to detail here but which are as Respondent states in his brief appar
ent on the record
M.C.C. OF FLORIDA, INC. 1521
was hired that he knew how to work on a nonunion job
and keep his mouth shut, that he hired Wells "on his
word," but that he lied. Peters then asked Wells whether he
gave the people the cards, and Wells said he had. After
some conversation about safety conditions on the job, Pe-
ters told Wells that he was "causing him problems on the
job," and that "when people caused him problems on the
job he got real mean real fast." He then added, "Wells, I
don't think you can do it." Wells said, "Well, I disagree
with you, Gary, because I think I already have a majority
of people signed up." When Foreman Keith Blake then
signaled for a "lift," and Wells asked Peters if he should
make it, Peters said, "I hired you as a crane operator, you
can make the lift if you want to. I can't fire you until you
mess up running the crane." After agreeing with Wells that
the latter was the best crane operator out there, Peters said,
"I don't have a thing in the world against your operating,"
and added, "This other crap. I can't put up with this." He
then asked Wells if he was going ahead with the union
cards. Wells said he did not know, and Peters said, "Well,
I'll tell you this: You and me are through; we're finished.
We've had it. This is the end of it. You have had it."
Thomas Wells also testified that, shortly after his conver-
sation with Peters, he spoke with Foreman Keith Blake and
reported to him that part of the conversation with Peters
concerning Peters and Wells being "through," telling Blake
that he guessed "you will have a new crane operator to-
morrow." Later that same day, Blake told Wells that he
had spoken with Peters, that Peters in effect confirmed ex-
actly what Wells had told Blake Peters said, and that Peters
told Blake to fire Wells at his first opportunity because he
did not want Wells on the job. A day or so later, Blake
volunteered to Wells that Peters had asked Blake why
Wells had not been fired, and Blake had told Peters that if
he wanted Wells fired he should do it himself, that Wells
was doing a good job and was an above-average crane
operator.
Keith Blake testified that, following Peters' conversation
with Wells, he (Blake) spoke with Peters, who told him of
the conversation, and that he had told Wells to keep his life
jacket and hardhat on at all times. Blake denied having any
conversation with Wells between the Wells-Peters conver-
sation and Peters telling him of that conversation. He also
denied that Peters told him to keep an eye on Wells, or to
get rid of Wells, or that he told Wells that Peters said any
of these things.
Before resolving the credibility conflicts inherent in the
above versions of the conversations between Wells and Pe-
ters, and Wells and Keith Blake, the circumstances and the
conflicting testimony concerning Thomas Wells' hiring
should be considered. Peters testified that, when Wells
came in to ask for a job, he told Peters that he was a union
man, saying "I have worked on union jobs, and I've
worked on non-union jobs. I know how it is on open shop
jobs. I need work. I need a job." Peters said "Well, Mr.
Wells, I've got a crane out there that I will give you a shot
at I don't care if you've got a union book, just run the
crane." Wells testified that he had two discussions with
Peters, and was hired at the second, at which the subject of
the Union did not come up. A few days earlier, according
to Wells, he had spoken with Peters, told him he had been
union, but was "fed up with the union" and that he "want-
ed to go to work. I was a fellow that would work as hard
for $5.00 an hour . . . I would work as hard for $5.00 an
hour as I would for union scale . When I obligate myself to
a man , I fulfill my obligation."
I credit Wells' version of this conversation. In the first
place, the man being hired, Wells, seems much more likely
to remember details of the hinng interview (or two inter-
views) than the boss, Peters, who had hired some 75 or so
employees in the course of the project. Further, as was the
case with the Fields-Simpkins conversation, Wells' account
seemed a very probable and likely one-not even carrying
with it any implication at that point of anything amiss con-
cerning Peters' conduct. In my view, much the same rea-
soning applied to the conversations between Peters and
Wells, and Keith Blake and Wells. "What's your game?"
seems a more likely phrase to use with reference to
someone's union activities than to his not wearing a hard-
hat. And here too, Wells' version seems more probable and
has more of a ring of truth to'it than did Peters' version. As
to Keith Blake, his testimony at a number of points was
vague; it did not comport with the Florida D.O.T. diary
with respect to work on the cofferdam; it was inconsistent
in that he testified that he told Robert Zeller he would
speak to Peters and tell Peters Zeller was a good qualified
man, although he had, by his own and Peters' testimony,
already told that to Peters; and it indicated a lack of mem-
ory concerning whether Zeller, in that conversation,
mentioned the Union, or having signed a union card. I
find, accordingly, that the conversation took place substan-
tially as testified to by Thomas Wells.'
Following the conversation with Wells (the "hardhat"
incident), Peters admittedly began talking to the employees
("to most everyone on the job") about the Union' s organi-
zational drive, telling them that he did not think the Union
would do the employees any good, that the employees had
always been able to come and talk to him if they had any
problems, and they did not need anybody between him
and them to work out problems on the job, and that he
could not afford wages higher than those on which he
based his bid on the job.
On Thursday, May 1, Respondent discharged five em-
ployees, Lambert, Golden, Sprott, William Wells, and Wal-
ter Zeller. The circumstances of these discharges (all are
alleged as violative of Section 8(a)(3)) will appear in the
discussion section of. this Decision. On that same day,
Simpkins received another call from Thomas. Thomas told
Simpkins that "there were going to be some legal repercus-
sions from some men that we had fired," and that he want-
ed Simpkins "to be careful because the Union was going to
import some head knockers." Simpkins called Peters to re-
port this conversation, with Peters asking Simpkins "How
in the hell does Tommy Thomas know what they are
going to do?" Simpkins then called Thomas to ask him
how he knew what they were going to do. Thomas said that
he and Danny Geraldson had signed union cards, that one
of the operators had "kind of put the pressure on him and
he signed the card." Simpkins said "Yeah, and I bet he
This does not mean that Peters told Blake to get rid of Wells, merely
that Blake so informed Wells
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
runs the 550 Koering doesn't he" and Thomas said
"Yes " 5 Thomas went on to say that he and Geraldson had
not signed their real names to the cards, Geraldson having
signed his "Danny Geraldson," although his name was
"Daniel," and Thomas not having used his real initial
Simpkins reported this conversation to Peters, who said,
with reference to the report about the two employees not
having signed their real names, "Well, what the hell, they
signed them didn't they"" Simpkins and Peters discussed
why Thomas was telling Simpkins about the union drive,
and Peters ended the conversation by saying that Thomas
"was either playing straight or playing both ends against
the middle and he didn't know which it was "
About April 30 or May 1, according to employee Frank
Rubano, Supervisor L T Minchey asked him whether he
believed in unions Mmchey denied saying this I do not
credit Minchey's testimony, in general Minchey testified
that the subject of the Union did not come up at all while
he was foreman on a particular barge, that he heard no
rumors there or on the jobsite about the Union, and that
the first time he heard about a union drive was a "pretty
good while after the layoff on the cofferdam " In sharp
contrast, Peters testified, as noted above, that "Rumors at
that time 6 of the union drive were rampant all over the job
You couldn't go on one barge or another barge out there
and not, (sic) somebody say something about a union
drive " It is inconceivable that with the boss of the project
so completely aware of the union activity being "rampant '
the foreman on one of the barges could have been so total-
ly ignorant of any union activity going on With respect to
this particular alleged conversation between Minchey and
Rubano, I therefore credit Rubano's testimony and find
that it occurred as he testified 7
Also on or about May 1, Minchey told boat operator
Richard Sprott that he had to let him go, and responded "I
don't know" to Sprott s asking "What's happening" Min-
chey added that Peters wanted to see Sprott, and when
Sprott asked "What about" said, according to Sprott, ` I
think it's got something to do with the Union " 8 Minchey
testified concerning this conversation that, having been
told by Peters the evening before to send Sprott to his of-
fice, Minchey so informed Sprott, Sprott asked "What
for?" and Peters said he did not know Sprott then asked
"Am I getting fired or laid off" and Minchey again said
he did not know When Sprott asked "Because of the
Union'?" Minchey said "I don't know nothing about the
Union' Employee Johnny Livingston, who was present at
this conversation, confirmed Minchey's version In this in-
stance, I credit Livingston and Minchey, and find that the
conversation occurred as they reported it It does not seem
likely that Minchey would have gratuitously told Sprott
that the Union was causing his discharge, nor does it seem
5 This was obviously a reference to Thomas Wells
6 At that time was both before and after Peters conversation with
Thomas Wells when Wells told Peters of his obtaining signatures on union
authorization cards
7 Despite the fact that in some other respects I will not be crediting Ruba
no completely See the discussion of his alleged discriminatory discharge
infra
8 Sprott went to see Peters who discharged him Details of this discharge
will be set forth hereafter in the discussion of the 8(a)(3) allegations
likely that Minchey would be sending Sprott to see Peters,
who then told Sprott he was being discharged, if Minchey
had already told this to Sprott Finally, as Respondent as-
serts, it does not seem likely that Sprott would have waited
for about 2 months to authorize filing the unfair labor
practice charge concerning himself if he-had been told at
the time of his discharge that it had "something to so with
the Union
Rubano testified that, when employee Golden was dis-
charged Minchey said to Golden, as he was walking away,
"That's what you get for signing a Union card " Rubano
added, in his testimony, that "I can't say that Walt Golden
heard him, because he never turned around " Golden made
no mention in his testimony of any such remark by Min-
chey For reasons set forth above, I do not credit
Minchey's denial that he made this statement 9
According to Rubano, Peters told him, about May 3 (the
day after the layoff) that Thomas Wells had been laid off
because he was the primary union organizer In this in-
stance, I credit Peters' denial I cannot believe that he
would have made such a damaging statement to Rubano,
it is not in keeping with the way Peters comported himself
in other respects Furthermore, although I have credited
Rubano as to certain statements made by Minchey, in
some other respects, as indicated more fully below in the
discussion of Rubano's alleged discriminatory discharge, I
find Rubano to have dissembled in his testimony
On Friday, May 2, the crew of the 550 barge, including
Thomas Wells, Thommy Thomas, Robert Zeller, and Dan-
ny Geraldson, were laid off Robert Zeller being `rehired"
the next morning, and Danny Geraldson returning to work
2 days later, on Monday, May 5, only Thomas Wells and
Thomas are alleged to have been discriminatorily dis-
charged by this layoff (Geraldson was not actually told he
had been laid off, having been away the Friday of the lay-
off, but returned to work, apparently without any question,
the following Monday The circumstances of this layoff
will be set forth subsequently
Simpkins met with Tommy Thomas on the next day,
May 3, at the Misque Lounge Thomas again mentioned to
Simpkins that the Union was still planning to "import their
head knockers," and that they also planned to blow up one
of the Company's barges
After the layoff, apparently about May 5, according to
employee Stinson, Peters spoke to him during a lunch-
break telling Stinson that someone would be coming
around trying to get him to sign a union card, but that a
union would not do him any good, he would be working
less hours, and would not get an increase in wages Al-
though Peters testified that he had no occasion to, and did
not, talk with Stinson about the Union, he also testified, as
noted above, that he talked to about all the men in the
week or so after his conversation with Thomas Wells, and
his failure specifically to remember a short interlude with
Stinson does not raise any real credibility issue I conclude
that the conversation took place substantially as reported
by Stinson, except for the "working less hours' portion of
9 Golden s failure to support Rubano s testimony is not actually a fail
ure at all in the light of Rubano s stating that this remark was made when
Golden was walking away and that he could not tell whether or not Golden
heard it
M CC OF FLORIDA INC
the conversation As to this part it does not seem likely
that Peters would have made this particular threat to only
one employee (no other witness testified to any "loss of
hours" statement by Peters at any time), when he was talk-
ing against the Union to all the employees
At about the same time, Lambert had a conversation
with Office Manager Massengale in which, Lambert testi
fied, Massengale indicated that the job would shut down if
the Union came in Lambert was somewhat confused both
as to the date this occurred and precisely what was said
(Lambert himself said on the stand that he was "pretty
vague about it now," referring to this conversation) Ac-
cordingly, I credit Massengale's version of the conversa
tion that Lambert asked Massengale whether the job
would shut down if the Union came in and Massengale
replied "I'm not in a position to say one way or the other,
but I've worked on union jobs, for union contractors where
the job had been shut down for negotiations or talks until
they reached a settlement on it " And Massengale then
added that he did not want to talk about it anymore, that
he did not know what was going to happen
Rubano testified that about May 1 Foreman Mmchey
told him that as long as he did not talk about the Union on
the job any more, he would be "all right " Minchey denied
this conversation 10 Between the two witnesses, I found Ru-
bano the more credible, and I find that this conversation
occurred as he testified
On May 23, Peters assembled the employees and read a
letter to them, which the complaint alleges as violative of
Section 8(a)(1) because it `impliedly threatened the em-
ployees with unspecified harm if they supported the
union " The full test of the letter need not be repeated here
At one point therein, the statement is made "I truly believe
that this union would do all harm and no good " However,
the specification of the "harm' in the remainder of the
letter does not indicate that the employer would take any
action based on unionization of the employees, but rather
that the employees would lose their right to deal individu-
ally with the employer, that they would have to pay union
dues, and that they might be called out on strike In this
context, I do not find that the letter was violative of the
Act
After finishing reading the letter, Peters told the employ-
ees, according to Rubano, that there was one more 'insti-
gator' left on the project Peters denied saying this As no
other employee so testified, and because Rubano was not
in all respects a reliable witness, I do not find that this
statement was made by Peters, whose denial of it was con-
firmed by other witnesses present at his talk to the employ-
ees I also credit Peters' denial of Rubano's testimony to
the effect that Peters told Rubano, 3 or 4 days after the
speech, that he knew Rubano had signed a union card
A final 8(a)(1) allegation in the complaint is that Simp-
kins told a newly hired employee not to engage in union
activity or associate with union activists As the only newly
hired employee in Simpkins' department, Donald Black-
burn, denied that any such statement was made, there is no
probative evidence to support this allegation
10 The complaint alleged this 8(a)(1) incident as occurring about May 5
C Discussion
1523
1 The alleged 8(a)(1) violations
Based on the foregoing findings of fact, I conclude that
Respondent violated Section 8(a)(1) of the Act by the fol-
lowing
(1) Simpkins' interrogation of Fields and Litton
(2) Simpkins' "instruction' to Fields and Litton not to
engage in union activities because they were part of man-
agement
(3) Peters' interrogation of Thomas Wells concerning
the latter s union activities
(4) Keith Blake's telling Thomas Wells that he had been
told by Peters to fire Wells at his first opportunity
(5) Minchey's interrogation of Frank Rubano
(6) Minchey's statement to Rubano concerning Golden
having been fired for signing a union card
(7) Minchey s statement to Rubano that he would be all
right if he did not talk about the Union on the job any
more
2 The alleged 8(a)(3) violations
a The layoff of Thomas Wells and Tommy Thomas
As noted above, four employees were "laid off" May 2,
1975 The previous day, an official of the Florida Depart-
ment of Transportation (DOT), instructed Peters to cease
working on a particular cofferdam because a problem had
developed in the cofferdam seal, and it was necessary that
a decision be made by the DOT, and certain Federal agen-
cies, how to handle the problem As a result, Peters de-
termined to lay off the cofferdam crew (not including
Foreman Keith Blake), and the men were so informed on
the evening of Friday, May 2 11 According to Peters and
Blake, they discussed the employees on that crew that eve-
ning, Blake telling Peters that the only good man on the
crew was Robert Zeller, but that Geraldson was not too
bad if he could be kept away from Tommy Thomas The
next morning, Saturday May 3, Robert Zeller, who had
been laid off the evening before, asked Peters to hire him
back, telling Peters that he had signed a union card Peters
testified that he told Zeller that he did not care whether or
not he had signed a union card, and that he could start
work the following Monday, because Foreman Blake had
told Peters that Zeller was a good man Zeller then said
that he no longer wanted any part of the Union When
Geraldson returned from leave on Monday, May 5, he was
put back to work The record also shows that at least two
other employees were hired in the week or so following the
May 2 layoff
There is some question, based on all the testimony, con-
cerning the resolution of the cofferdam problem, as to ex-
actly when the DOT made its decision what to do 12 What
11 Danny Geraldson was on leave at the time so he was not officially
laid off
12 Thus the DOT Construction Diary shows the cofferdam crew
working on Friday May 9 with one foreman four skilled employees and
one laborer placing reinforcing steel and forms for columns pier 35 right
Continued
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is clear, however, is that Respondent's work force re-
mained at the same or a higher level after the layoff as
before, for Robert Zeller and Danny Geraldson missed no
work, and new employees were hired, even though work on
the cofferdam itself may not have resumed until about
May 14.
Viewed realistically, there was no layoff at all. Thus,
Robert Zeller, "laid off" the evening of May 2, was "re-
hired" when he came in the very next morning. And Dan-
ny Geraldson (not there to be laid off on May 2, but who,
according to Peters, would have been laid off had he not
been on "leave" at the time) kept right on working when he
reported in on Monday, May 5. A "layoff" for lack of work
that lasts from the evening of Friday until Saturday morn-
ing for one man and until work resumes on Monday for
another, is not much of a layoff. And hiring new men
shortly thereafter (by the following Thursday, there was
apparently a full complement on the cofferdam crew, and
by Friday one more employee than had been on the crew
the previous Friday), further demonstrates that there was
no lack of work on the project at all. Respondent adduced
testimony concerning its layoff procedures and practices,
to show that it did not have a "recall" procedure. But this
presupposes that there is an authentic layoff involved, not
an overnight layoff. Respondent also adduced testimony,
as noted above, to the effect that Keith Blake, in evaluating
the cofferdam crew, had informed Peters that neither
Thomas Wells nor Tommy Thomas was a satisfactory em-
ployee. Based on all the evidence, including Blake's state-
ments to Wells in his conversation with him of April 30, I
am convinced that Respondent did not regard Wells as
unsatisfactory, but rather as a good crane operator.13
Taking into consideration the conversation between Pe-
ters and Thomas Wells reported above, there is no question
at all in my mind but that the situation was contrived to get
rid of Wells, the primary union organizer. As Wells would
not oblige Peters by getting caught without his hardhat, or
in any other dereliction that could serve as a basis for dis-
charging him, Respondent utilized the cofferdam problem,
which, as found above, did not necessitate, or cause, any
diminution in Respondent's work force, as a way of remov-
ing Wells' undesired union organizational activities from
the project. Even were I to find that Peters did not threaten
Wells on April 29 (i.e., to credit Peters' version of the con-
versation), I would reach the same conclusion, for
Respondent's opposition to the Union was plain, and the
"layoff" itself was so obviously contrived that the inference
bridge " It shows the "cofferdam crew" working Thursday , May 8, with one
foreman , three skilled employees, and one laborer , "setting column remf
steel left side Also set forms for column same . pier 35 right bridge" It
shows the "cofferdam crew," without listing its composition, working on
Wednesday , May 7 , "Working on forms Moving forms and equipment to
pier 35 rt bridge Preparing to form columns for pier 35 rt" It shows the
"cofferdam crew" on Tuesday , May 6 , "sawing tops of piles Forming bot-
tom of seal for footer pier 29 rt bridge left footing Poured seal in left &
right footings pier 29 right bridge ," again without listing its personnel And,
finally, it shows the "cofferdam crew" on Monday , May 5, without listing its
personnel "Placing footer form pier 29 rt bridge rt footer form bottom of
footer (29 rt bridge rt footer ) Sawing tops of piles "
U Thomas as noted above , did not testify , and there is nothing to refute
the testimony of Peters and Blake that Blake told Peters Thomas often came
to the job "hung over" and that it was difficult to get any work out of him
of its being designed to get Wells off the premises is inesca-
pable. I conclude that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Thomas Wells.
The Tommy Thomas situation must necessarily be
viewed in the same light. It may well be that Respondent
did not view Thomas as a particularly desirable employee,
but it had not in any way indicated as much, he was on the
payroll with no threat of discharge to him having been
made. Nor does Respondent claim that it discharged
Thomas for cause, or any reason; he was "laid off" with
Wells, Zeller, and, in essence, Geraldson. Thus it follows
that his discharge was also violative of Section 8(a)(3) and
(1) of the Act. Respondent argues in its brief that "there is
no logical way to infer discriminatory motive by the layoff
of Thomas ..." because "it was Thomas who first in-
formed the Company that a union drive was underway"
and it was "Thomas who on his own initiative kept the
Company informed of the union's strategy...." But Pe-
ters, as Simpkins testified, suspected that Thomas was
"either playing straight or playing both ends against the
middle and he didn't know which it was." It is possible, of
course, that the layoff designed to affect Wells was a con-
venient way of getting rid of Thomas for the latter's possi-
ble deficiencies as an employee. The fact remains, however,
that there was no intention at that time to discharge Thom-
as for these deficiencies, so that his departure was occa-
sioned by what I have concluded was a contrived layoff,
with its target Thomas Wells, and it follows, as I have al-
ready stated, that Respondent violated the Act as to Thom-
as as well as Wells.
b. The discharges of Walter Zeller, William Wells,
Lambert, Sprott, Golden, Fields, Stinson, and Rubano
The other eight alleged discriminatory discharges pre-
sent a different kind of problem; it is necessary, in my
view, to evaluate each situation separately. The General
Counsel contends, in effect, that they should be viewed
together, and that a violation be found as to all based on
Respondent's hostility toward the unionization of its em-
ployees, including the alleged violations of Section 8(a)(1),
the timing of the discharges, with (including in this connec-
tion Thomas Wells and Tommy Thomas) seven employees
being discharged within a week of Respondent's awareness
of union activity among its employees, two more only a
few days thereafter, and six of the first seven having at-
tended the union meeting on April 28, and because of the
"abrupt nature" of the discharges, with the employees not
even being afforded an opportunity to speak on their own
behalf. The General Counsel also argues that particular
8(a)(1) statements establish the violation as to some of the
alleged discriminatees-this argument will await the dis-
cussion below of the individual cases. With respect to
Respondent's knowledge of the union "activities" of the
discriminatees, the General Counsel concedes that there is
direct evidence of such knowledge only with respect to
Thomas Wells, Tommy Thomas, and Frank Rubano, but
contends that "circumstantial evidence" permits the infer-
ence of knowledge with respect to all the others. The Gen-
eral Counsel also asserts that the reasons advanced by Re-
spondent for the discharges were "shifting and essentially
M C.C. OF FLORIDA, INC 1525
pretextual." This last contention will also be considered as
the individual cases are discussed.
Rubano aside,14 the foregoing reasons, had Respondent
offered no "defense," would suffice, and do suffice, to es-
tablish a prima facie case of discriminatory discharge with
respect to the remaining dischargees. That is, Respondent's
hostility toward unionization of its employees was appar-
ent, and largely admitted, Respondent did violate Section
8(a)(l)-the facts demonstrating at least some of the viola-
tions being admitted-and the timing of the discharges was
within a short period after union organization, and
Respondent's awareness thereof, began. But with Respon-
dent asserting reasons which on their face amount to good
cause,15 with the fact that Respondent's knowledge of the
union activities of these employees is not directly shown,
and with the fact that the evidence does not establish that
the employees discharged were the only (or most of)
Company's employees who joined the Union," the prima
facie case is scarcely so overwhelming as to permit a blan-
ket finding of 8(a)(3) violation as to these employees, with-
out a careful examination of the full circumstances. I deal
with them seriatim below.
1. Walter Zeller attended the April 28 meeting and
signed a union authorization card. He also solicited em-
ployee Stinson to sign a card. There is no direct evidence to
show that Respondent knew of Zeller's union activities,
nor was there any discussion between any management
official or supervisor with Zeller about the Union, or any
8(a)(1) violations shown or alleged with respect to him.
Zeller was discharged on May 1. Zeller was a welder on the
project, and was given a welding test by DOT Project Engi-
neer Strickland, and assigned to welding duties pending the
test results. A few days before he was discharged, Strick-
land told Peters that Zeller was going to fail the test, that
he had looked at a weld made by him which "looked real
bad and it was full of holes" and that while he could not
always tell if employees were going to pass the test, "you
can tell they're going to fail." The welding work being per-
formed by Zeller at the time consisted of "non-certified"
welding, which did not require passing the DOT adminis-
tered test. According to Peters, he continued Zeller on the
job for a few more days, but when the Company was
caught up on its non-certified welding work, decided to let
Zeller go, terminating him because of "a combination of
unsatisfactory work and lack of work." The actual test re-
sults were given to Peters by Strickland on May 6, after
Zeller's discharge-Zeller having in fact failed the test.
Some time in late May or early June, Zeller returned to the
jobsite seeking reemployment, and Peters told him that he
could do nothing at that time, "until this situation was re-
solved." Peters added that if Zeller did come back, it would
not be as a welder, that he would "be under some sort of
14 And, of course, Thomas Wells and Tommy Thomas. whose situations
have already been resolved
1$ The factual basis for the reasons asserted is disputed by the General
Counsel for the most part
16 Viz, the testimony of Thomas Wells that a majority of the employees
had signed cards as of April 30 William Wells, Thomas Wells' brother.
testified that he signed up a few employees the next day after the April 28
meeting Clearly there were more signers than dtschargees
other status," "due to the fact that I hadn't passed the
test."
As I have indicated, although a prima facie case exists
with respect to all the alleged discriminatees, good cause
shown for any of the discharges would be sufficient, absent
other circumstances to show pretext, to rebut that general
prima Jacie case. In Zeller' s case, I believe such good cause
had been established by virtue of Strickland having in-
formed Peters that Zeller had not (although not "official"
yet) passed the welding test. With no 8(a)(1) violations at
all-interrogation, threats, or anything else-directed at
Zeller, and with Peters having told Zeller when the latter
came to seek reemployment 4 or 5 weeks later that if he
were to return it would not be as a welder (in effect, con-
firming that Zeller was not deemed a good welder), I be-
lieve that the reason given for his discharge was not only a
fact, but was the real reason, or at least was not shown by
the General Counsel to have been pretextual. Accordingly,
I conclude that Respondent did not violate Section 8(a)(3)
by discharging Walter Zeller.
2. William Wells, a crane operator, was discharged May
I He, too, attended the union meeting on April 28, and
there signed a union authorization card. The next day, he
obtained signatures on several more cards. With respect to
the prima facie case, his situation is almost identical to
Walter Zeller's; he was not the recipient of 8(a)(1) threats
or interrogation, or any conversation with supervisors or
management personnel concerning the Union. He was as-
sertedly discharged for being unable to operate his crane
properly, dropping loads while making a lift, and breaking
one of the "casing beds." I shall not detail the plethora of
evidence from various Respondent' s witnesses concerning
William Wells' unsatisfactory performance, which far out-
weighed the rather unconvincing testimony of several Gen-
eral Counsel witnesses to the contrary. It suffices to say
that, with no particular animosity shown toward him, no
direct evidence of company knowledge of any union activi-
ty on his part, and the ample demonstration of his deficien-
cies as a crane operator, I conclude that the General Coun-
sel has not shown that Respondent discriminatorily
discharged William Wells.
3. Bruce Lambert was hired as a welder. On April 29, his
car broke down while he was driving to work, but he never-
theless worked that day. He and another employee, Jimmy
Reppa, worked on the car that evening, but were unable to
fix it, and Lambert asked Reppa to tell Foreman Minchey
that he would be late for work the next day, and Reppa did
so Lambert did not get in to work on April 30, nor did he
come in on time on the next day, May 1, arriving at the
plant some time in the morning (Lambert's testimony) or
early in the afternoon (Minchey's testimony). When Min-
chey checked with Office Manager Massengale on the
morning of May 1, Massengale told Minchey that Lambert
had not called in. Massengale checked with Peters, at
Minchey's request, and Peters also said that Lambert had
not called in. Lambert was then marked off the payroll.
When he did show up (after he was marked off the payroll,
whether late morning or early afternoon ) Peters told Min-
chey to make out Lambert's paycheck, and told Lambert
he was discharged for missing work. Lambert's version of
his conversation with Peters, which I accept (Peters did not
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly contradict Lambert's testimony in this repsect, he
testified that "I told him that we were going to discharge
him for violating the 2-day work rule and missing the 2
days without calling in And I had just a short conversation
and the best I can remember he went back up front and got
his checks "), is that Peters told him he was being let go
because Minchey was not satisfied with his work and be-
cause he missed 2 days in a row Peters added that, when
an employee misses work, he should call Peters, not send
word to a foreman Lambert also testified that he called
Peters that morning from the doctor s office Peters denied
this I credit Lambert in this respect also His testimony
was not designed to be self-serving, in my view, for he
testified, even though Peters did not, as to Peters' telling
him that Minchey was not satisfied with his work (Peters
had earlier testified that Minchey told him this, but that
this was not the reason for the discharge, just a "remark for
the record ")
Peters testified that the company rule required personal
notification by the employee who was not coming in, either
by calling the project office or notifying his foreman It
seems somewhat odd that a "personal" notification, as dis
tinct from sending word through another employee, would
be required, particularly since the reason for an absence
might well be such as to preclude the individual from call-
ing in himself It obviously could make little difference to
the Company whether notification was made personally or
by proxy Indeed, Peters testified that the problem for a
foreman of a man not reporting to work was in effect the
same whether or not he called in, for the foreman has al-
ready lined up his work for the day, so it is obviously the
same, no better or worse, if the notification is through an-
other employee, or anyone else for that matter
I find that as to Lambert the General Counsel's prima
facie case stands up, and that Respondent's explanation for
his discharge does not withstand scrutiny Even accepting
company policy as it was stated by Peters, manifestly the
Company was not a slave to its own rules, and was not
required to discharge an employee who was in technical
violation of them Peters' own testimony that he had earli-
er, before May 1, decided to discharge Walter Zeller be-
cause DOT Engineer Strickland told him that he was sure
Zeller had not passed the welding test makes the discharge
of Lambert, who did pass the test, and whose services were
needed,i7 rather counterproductive And Lambert had sent
some notification (at least that he would be late) on the
first day, and he did report to work, albeit late on the
second So even assuming, contrary to my finding above,
that he did not call in and inform Peters on the second day,
the strict letter of the rule was not violated, as the rule was
2 absent days, apart from the requirement of "personal"
notification For these reasons, and even though the prima
facie case as to Lambert is no different from that with re-
spect to Walter Zeller and William Wells, I am satisfied
that the reason advanced by Respondent was a pretext,
and that Respondent violated Section 8(a)(3) and (1) by
discharging Lambert
4 Richard Sprott was hired early in January 1975 in the
engineering department, and became a boat operator not
too long before his May 1 discharge He was discharged,
according to Respondent, for being unable to run the boat
Sprott had not engaged in any union activity, he had actu-
ally refused to sign a union card Unlike all the other al-
leged discrirninatees, therefore, there is no basis for con-
cluding, even by circumstantial evidence, that Respondent
"knew" of union activities on his part The General Coun-
sel, in Sprott's case, relies on his testimony that Minchey
told him his discharge was related to his union activity I
have already found that Minchey did not say this to Sprott
Indeed, an additional reason for so concluding is that
Sprott did not engage in any union activity Thus, the pri
ma facie case as to Sprott is at best quite weak, based as it
is solely on timing and Respondent's hostility toward the
Union As against that, the evidence is overwhelming that
Sprott s operation of the boat was, to say the least, not
good His own testimony that he had trouble turning the
boat in the channel, that he ran aground, and that he had
hit barges, is itself sufficient to establish his lack of ability,
and I credit the testimony of Peters and other Re-
spondent s witnesses that his boat handling was even
worse than Sprott's own testimony would indicate Accord-
ingly, I find no violation of Section 8(a)(3) and (1) in the
discharge of Richard Sprott
5 Walter Golden began working for the Company as a
crane operator about the middle of February, and was dis-
charged on May I He had attended the April 28 union
meeting and signed a union card The same considerations
apply to him as to Walter Zeller, William Wells, and Lam
bert, in that the resolution of whether his discharge was
discriminatory turns on examination of Respondent's rea
son for the discharge 18 The evidence in Golden's case, in-
cluding the testimony of DOT Inspector Tim Woodrum,
fully establishes that Golden's crane operating skills were
not, at least on this project, up to par On the day of his
discharge, an incident occurred where Golden's crane was
overextended, and was in great danger of tipping over Ap-
parently, only the intervention of Peters and Minchey pre-
vented an accident Thomas Wells also testified about this
incident, that the crane operated by Golden was `starting
to go up in the back " I find, on these facts, that Golden's
discharge was for the stated reason, and accordingly that
Respondent did not thereby violate Section 8(a)(3) and (1)
of the Act I believe Minchey's remark was intended as a
threat to known union adherent Rubano rather than going
to establish an unlawful motive for Golden's discharge, as
it was Peters, who observed the incident in question, who
determined to discharge Golden
6 Barron Stinson was hired April 21 as a laborer On
April 28 an accident occurred, with Stinson injuring his
hand, apparently as a result of not being careful after plac-
ing a bar in the pile-driving leads of a crane, where he was
assisting the men in rigging the leads According to Peters
and Mmchey, Minchey wanted to discharge Stinson at that
time, but was overruled by Peters, who would not dis-
charge someone injured on the project as long as he was
still injured Peters testified that he decided to put him on a
barge for a while, after his hand was better, to see if his
17 It became necessary thereafter for Respondent to subcontract welding
work
18 In addition as I have found above Minchey said to Rubano to
Golden s back but apparently out of earshot of Golden who was walking
away at the time That s what you get for signing a Union card
MCC. OF FLORIDA, INC 1527
performance improved. He discharged Stinson on May 9.
Stinson had not attended the union meeting of April 28,
but had signed a union authorization card off the project.
The alleged basis for the discharge here, according to
Peters, Stinson's unsatisfactory performance and work,
and that he "showed no aptitude or ability in the construc-
tion business" is more difficult to evaluate, due to its some-
what subjective and general nature, than the asserted basis
for the discharge of the other alleged discriminatees herein.
By the same token, it is virtually impossible to characterize
the reason given as a pretext. Because of Stinson's almost
de minimis union activities, signing a union card and no
more, because his discharge was on May 9, so that the
"timing" aspect of the General Counsel's prima facie case
as to him is a bit attenuated, and because the explanation
advanced seems plausible, and in any event was not de-
monstrably pretextual, I find that Respondent did not vio-
late Section 8(a)(3) and (1) by discharging Barron Stinson.
7. Dennis Fields was hired as an engineering aid, and
worked in that capacity for about 6 weeks prior to his dis-
charge on May 9. He attended the April 28 union meeting,
and signed a union card. In addition, he was subjected to
Simpkins' interrogations about the Union, and admoni-
tions by Simpkins not to sign a union card because he was
salaried, accompanied by Simpkins' telling him "I have
something against unions"
Part of Fields' job was to perform calculations which
were used to set the pilings in their proper place. Each
calculation was performed by three persons, Project Engi-
neer Simpkins, and aids Fields and Litton, so as to obviate
any mathematical errors, because of the absolute necessity
of having the pilings placed precisely. Respondent claims
that Fields was discharged because he made too many er-
rors in his calculations, and the quality of his work in this
respect declined instead of improving. According to Fields,
Simpkins told him, when he discharged him, that their
"trial marriage was not working out," that Fields made
"too many small mistakes."
Because Simpkins, avowedly antiunion, made the deci-
sion to discharge Fields, and because of the 8(a)(1) state-
ments by Simpkins to Fields, the prima facie case as to him
is stronger than it is with respect to most of the alleged
discriminatees. Viewed in that context, I am not satisfied
that Respondent has rebutted that prima facie case as to
Fields, and conclude that the "too many small mistakes"
reason was a pretext by Simpkins. Respondent did offer
into evidence some 55 calculations Fields made during his
employment (all that Simpkins could "find" on Fields'
desk after Fields left, not necessarily all that he performed)
and there were errors of one sort or another on more than
20 of them. The errors consisted of mistakes in subtraction,
transposition of numbers, and the erroneous entry of coor-
dinates, with a single error in many instances necessarily
carrying through to produce an erroneous final result, or
setting. There is no evidence to show how many, or few,
errors were made in doing these calculations by Simpkins
or Litton. It seems plain, however, that some errors are to
be expected, for the Company would not waste the time
and money in having all three (not even just two) perform
each calculation if that were not so. I hesitate, in view of
my lack of qualifications or experience in this area, and the
lack of a standard or bench mark to judge the situation
here, to say that Fields' amount of errors was acceptable.
But, for the reasons set forth, I do not hesitate to say that
Respondent has failed to show that they were unaccept-
able. Respondent has, therefore, failed to refute the prima
facie case as to Fields, and I conclude accordingly that it
violated Section 8(a)(3) and (1) by discharging him.
8 Frank Rubano went to work for Respondent in Febru-
ary as a pile-driver. He attended the April 28 union meet-
ing, and signed an authorization card. He was also subject-
ed to interrogation by Foreman Minchey, and it was to
Rubano that Minchey made the remark about Golden re-
ferred to earlier. Rubano was discharged on June 23, as-
sertedly for violating company instructions by pouring
paint and gas into the river.
The prima facie case with respect to Rubano is there, but
it is lessened in intensity by the fact that his discharge
came about 2 months after the union activity began, and
about as long after Rubano was interrogated. The evidence
that Rubano did pour the materials into the river is sub-
stantial Indeed, Rubano did not really deny having done
so, he testified that only a small amount went into the river
and that it was accidental, not deliberate. He also testified
that there was no company rule against dumping matter
such as this in the river This is somewhat inconsistent with
his claim that he did it accidentally I am satisfied that
there was such a rule, if not that there should have been,
and in any event that what Rubano did was sufficient
ground for discharge regardless of the existence of a com-
pany rule on the subject. Rubano's discharge came long
after charges were filed as to all the other employees (ex-
cept Sprott). Even assuming that Respondent welcomed
the opportunity given by Rubano to discharge him (and
there is no direct evidence to this effect), the cause for the
discharge was proven to my satisfaction as having been the
incident in question. Accordingly, I find no violation of the
Act by the Company in discharging Frank Rubano.
CONCLUSIONS OF LAW
1. Respondent, by interrogating its employees about
their union activities, by instructing its employees not to
engage in union activities, and by imphedly threatening its
employees with discharge because of their union activities,
has engaged in unfair labor practices within the meaning of
Section 8(a)(I) of the Act.
2. Respondent, by discharging its employees because of
their union activities, has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not violated the Act in any other re-
spect
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it offer reinstatement to
the employees found herein to have been discriminatorily
discharged, with backpay computed as provided in F. W
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woolworth Company 90 NLRB 289 (1950), and Isis Plumb
ing & Heating Co, 138 NLRB 716 (1962)
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 19
Respondent, M CC of Florida, Inc, Tice, Florida, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Interrogating its employees concerning their union
activities
(b) Instructing its employees not to engage in union ac
tivities
(c) Impliedly threatening its employees with discharge
because of their union activities
(d) Discouraging membership in International Union of
Operating Engineers, Local 675, AFL-CIO, or in any other
labor organization, by discriminating against employees in
regard to hire, tenure of employment, or any term or
condition of employment
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act, except to the extent that
such right is affected by the proviso to Section 8(a)(3) of
the Act
2 Take the following affirmative action which is neces-
sary to effecutate the policies of the Act
(a) Offer Thomas Wells, Tommy Thomas, Bruce Lam-
bert, and Dennis Fields immediate and full reinstatement
to their former jobs or, if those 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 earnings they may have suf-
fered, in the manner set forth in the section hereof entitled
"The Remedy "
(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 recommended Order
(c) Post at its Tice, Florida, project copies of the at-
tached notice marked "Appendix " 20 Copies of said notice,
on forms provided by the Regional Director for Region 12,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained 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 the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges violations not herein
found
19 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
20 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT layoff or discharge any employee for
engaging in union activities
WE WILL NOT interrogate employees about their
union activities
WE WILL NOT instruct any employee not to engage in
union activities
WE WILL NOT impliedly thereaten employees with
discharge because of their union activities
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights under Section 7 of the Act
WE WILL offer reemployment to Thomas Wells,
Tommy Thomas, Bruce Lambert, and Dennis Fields,
and pay them for losses they suffered as a result of our
having discharged them
MCC OF FLORIDA, INC