Mclean Roofing Co.

National Labor Relations Board - Board Decisions

Sep 27, 1985

276 N.L.R.B. 830 (N.L.R.B. 1985)

830 DECISIONS OF NATIONAL. LABOR-RELATIONS BOARD
McLean Roofing Company and , United Union of
Roofers, . Waterproofers and Allied Workers •
Local No. 20. Cases 17-CA-11947, 17-CA-
11947-2 17-CA-11947-3, and 17-RC-9558
27 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS-AND BABSON
On 30 November 1984 Administrative Law
Judge Richard H. Beddow Jr. issued the attached
decision. The Respondent .filed exceptions and a
supporting brief, and the General Counsel filed an,
answering brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority,- in this proceeding to a three-
member panel. - -
The Board has" considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings;' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law.
' The Respondent asserts the j udge's decision is the result of bias and
prejudice After carefully examining the entire record , we find the Re-
spondent 's allegations are without merit As the Board stated in Penn
Color. Inc, 261 NLRB 395 fn 1 (1982), "There is no basis for finding
that bias and partiality existed merely because an administrative law
judge resolved important factual conflicts in favor of the General Coun-
sel's witnesses " Moreover, the Board 's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d
362 (3d Cir 1951). We have carefully examined the record and find no
basis for reversing the findings
In sec 11, par . 3, of his decision, the judge failed to include Clyde
McLean in the list of employees on the 9 and 10 November 1983 payroll
In sec III,A, par 1 , the judge stated Richard Carrick testified he did
remember giving his statement to the Board agent , rather than that Car-
rick did not remember giving his statement
We correct these inadvertent errors
Absent exceptions , we adopt pro forma the judge 's recommendation
that the challenge to Jack Hartman 's ballot be sustained.
We do not rely on Richard Carnck's affidavit or trial testimony in this
proceeding Accordingly, we do not pass on the judge 's 'finding that
McLean unlawfully interrogated Carrick on 2 November as to who start-
ed the Union , nor on his finding that McLean , on 30 November, created
an impression of surveillance of union activities , by asking Carrick how
many employees had attended the union meeting the previous evening
Inasmuch as the judge found other violations of the same character, and
the Order is unaffected , finding additional violations based on Carnck's
affidavit would be cumulative
Contrary to the judge, we sustain the challenge to Lawrence Wren's
ballot The judge found Wren was not employed on the eligibility date,
because McLean "observed his attendance at the union meeting on No-
vember 29 [1983] " Thus, the judge concluded Wren was denied work
because of illegal conduct by the Respondent However, as there is no
complaint allegation that Wren was unlawfully denied employment, nor
was the issue litigated as an unfair labor practice at the hearing, such a
finding is impermissible See Texas Meat Packers, 130 NLRB 279 (1961).
As Wren was not employed on the payroll period eligibility date, and
there is no evidence Wren had a reasonable expectation of recall, we sus-
tain the challenge to Wren 's ballot.
judge and orders that the Respondent, McLean
Roofing Company, Joplin, Missouri, its officers,
agents, successors, and assigns, shall take •the action
set forth in the recommended Order..
IT IS FURTHER ORDERED that the Regional Di-
rector- for Region 17 shall, within 10 days from the
date of this decision, open and count those ballots
whose challenges have been overruled. The Re-
gional Director shall prepare and serve upon the
parties a revised tally of -ballots which will, if 'the
Union receives a majority of the valid votes cast,
provide the basis for issuing a certification of repre-
sentative. Should the Union not receive a majority
in the revised tally, the Regional Director. shall set
aside the election, and the bargaining order alone
will-take effect.
Anne G. Purcell, Esq.,- of Kansas City, -Kansas, for the
General Counsel,. - ' -
George L. Gundy, Esq., and David L. Taylor, Esq., of
Webb City, Missouri, for the Respondent.
Joseph W. Moreland, Esq., of Kansas City, Kansas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Joplin, Missouri, on May 14
and 15, 1984. Subsequently, briefs were filed by Re-
spondent and the General Counsel.
The proceeding is based on charges filed December 6
and 21, 1983 and January 16, 1984, respectively (as
amended January 17, 1984), by United Union of Roofers,
Waterproofers, and Allied Workers Local No. 20. The
Regional Director's amended complaint dated February
23, 1984, alleges that Respondent McLean Roofing Com-
pany of Joplin violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act by interrogating and
threatening employees concerning union activities and
sympathies, creating the impression of surveillance, dis-
charging two employees because of their union activities,
and failing and refusing to recognize and bargain with
the Union. Consolidated with the unfair labor practice
proceedings is a representation proceeding based on an
election conducted January 6, 1984, in which 7 votes
were cast for the Union, 8 votes against the Union, and
12 ballots were challenged. On January 13, 1984, the
Union filed objections and on March 12, 1984, the Re-
gional Director issued a' decision overruling 6 of 12 ob-
jections and ordering a hearing with respect to the re-
mainder of the challenged ballots.
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following -
276 NLRB No. 93
MCLEAN ROOFING CO. 831
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Missouri corporation. It admits that it
annually sells goods and services valued in excess of
$50,000 directly to customers located outside Missouri
and I find that it is an employer engaged in commerce
within the meaning of Section 2(2),. (6), and (7) of the
Act. It also is admitted that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
Frank McLean is president and principal manager of
Respondent which since 1981 has been engaged in the in-
stallation and repair of roofs. McLean does all the hiring
and firing of employees who consist of roofers and
roofer helpers who work alongside each other, perform-
ing similar work under the supervision of Frank McLean
and the direction of the employee designated as foreman
for the day or job. McLean pays hourly wages to its em
ployees which, range. from $4 per hour to $9 per hour.
No benefits are offered and employees generally work an
8-hour day which starts seasonally between 7 and 8 a.m.
with a half-hour lunchbreak without pay. McLean pays
for travel time from the time the employees leave the
shop in Joplin, until.the employees reach the jobsite, but
does not pay for, time spent in returning from the jobsite.
The availability of work is affected by the weather and
the season and the number of employees on the payroll
varies from time to time. McLean hires employees as
work becomes available and then lays employees. off as
whether or other factors restrict work opportunities.
Some employees laid off in ; the winter return in the
spring to resume work with. the practice being for em-
ployees to make themselves available for work if they
wish to come back, rather than -for McLean to contract
them
As of November 9 and 10, 1983,1 the following 15 em-
ployees were on the payroll: Steve Brown, Richard Car-
rick, Ace Leon Crandall, Jesse W Crandall, Ronnie
Crandall, James Wayne Hartman, Floyd Lewis, Timothy
G. Marshall, Delno 'Don McKeehan, George Wesley
O'Banion, Robert Woodrow O'Banion, James E. Roland,
Charles W. Watkins, and Jimmie Wayne Watkms.2 Ace
Leon Crandall, Jesse Crandall, Ronnie Crandall, Clyde,
McLean, James Roland, and Charles Watkins were con-
sidered to be roofers and the others helpers.
In October and early November, the Union began an
organizational drive among Respondent's employees
with Ronnie and Jesse Crandall as the primary employee
organizers. Both Crandalls had been with McLean for a
significant amount of time compared with other employ-
ees. During 1982 and early 1983, Jesse had worked more
hours for McLean than any other employee, except
I All dates are in 1983 unless otherwise noted
2 The parties stipulated that some 32 other employees noted in the Re-
gional Director's Decision of Election and his Supplemental Decision
(G C' Exh 1(v)) were not in the unit as of November 9 and 10, 1983
While the number 33 was noted in the decision, that number included
David McLean` who Respondent contends should be in the unit and the
General Counsel contends should be excluded
Frank McLean's brother, David. McLean. Both Jesse and
Ronnie , had been called upon to work as job foreman
and Jesse normally received $9 an hour, more than
anyone else on the payroll.
Prior to the advent of his organizational activity,
Ronnie Crandall felt that he had a friendly relationship
with Frank McLean with included conversation on a
daily basis, playing ball together, and occasionally social-
izing after work hours. On October 14, Ronnie accom-
pained McLean to a jobsite in Foit Riley, Kansas. On
the way back, McLean asked Ronnie what he thought of
unions and commented that his wife had liked working'
in a union job. Crandall replied that unions were all right
but were sometimes a little hard on employers. McLean
then said that if a union ever tried to get in his shop he
would just lock the gates. Subsequent to this occasion
McLean seldom spoke to Ronnie except for making job
assignments.
About November 2, the Crandalls received authoriza-
tion cards from a union organizer and solicited valid
cards from 10 employees, specifically: themselves; their
brother Ace Leon Cardall, Charles and Jimmie Watkins,
Richard Carrick, George and Robert O'Banion, James
Hartman, and James Roland. 'Subsequently, when Car-
rick gave an affidavit to•a Board'agent, he said that prior
to the date of.signing a card, McLean had asked him
about who got the Union started.
During 'early November Jesse and his brother Leon
asked to get their paycheck on Thursday November 10
rather than Friday (the normal payday for the previous
week's work) in order to participate in the local deer
hunting ' season that weekend. McLean agreed that it
would be all right.
On November 8, the Union mailed a letter seeking rec-
ognition which was received by Respondent in the
normal course of business. On November 10, Leon and
Jesse went to the office to pick up their checks which
had been made out by McLean's secretary (and sister)
Linda Taylor. McLean showed them the letter from the
Union. He asked them how badly they wanted their
checks and said that they had better tell him something
about the Union. The Crandalls replied they did not
know anything. McLean gave them the checks saying
that if the Union tried to get in the shop he would just
lock it up.
On November 18 or 19 McLean approached Jesse as
he was checking a jobsite where work had just been fin-
ished and again asked Jesse if he knew anything about
the union activity. When Jesse denied -any knowledge
McLean told Jesse that he had been with his attorneys
that day and that they knew someone in Kansas City
who they could contact and find out who was behind
the Union activity. McLean then added as soon as he
found out who was behind it, he would fire them.
On November 25, Jesse went to McLean's office about
6 p.m. and again was asked about the Union. McLean
then said that he had found out that Jesse and Ron Cran-
dall were behind it and that he thought Leon was also.
McLean said. he would fire "you two,". and that if he
found out Leon was involved,- he would fire him also
and would lock the gates.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 28 and 29 Jesse and Ronnie told the
other employees that a union meeting would be held at
the hall on November 29. James Roland and Richard
Carrick were told about the meeting the morning of No-
vember 29 (Tuesday) before work started. Shortly there-
after they both walked into McLean's office. McLean
came out a short time later, gave work assignments for
the day, and called Jesse and Ronnie to one side saying:
"I do not need you two guys anymore." Jesse asked why
and McLean. replied that he had three witnesses that said
"you have been drinking on the job, stealing gas money
from me, and a couple other reasons."
The night of November 28 McLean was observed by
four witnesses who saw him sitting in his car or driving
away from a location across the street from the' union
hall at the approximate time the meeting was taking
place. One witness, Richard Carrick's saw McLean dnve
back by the hall a minute- or so after first leaving. Car-
rick's affidavit to the Board states that, the day after the
meeting, McLean asked Carrick how many went to' the
union meeting, however, in direct eximination by the'
General' Counsel, Carrick testified that he walked into
McLean's office and volunteered to McLean that 15 or
20 people had attended.
An election was held on January 6, 1984. Ronnie
Crandall was observer for the Union. After the election
he went to his brother's house and as he started to dnve
away he saw Frank McLean, who immediately "flipped
him off." Ronnie pulled over to the curb, opened his,car
window, told McLean -that he did not need to be .'flip-
ping me off' and that-as far, as he was concerned they
were still friends. McLean's response was, to say "Why
in the hell don't you get off my back on this union shit."
The results of the election were that 7 employees- cast
ballots for the Union and 8 against; there were 12 chal-
lenged ballots.3 -
III. DISCUSSION
The issues-in this case arise from the above-described
events which surrounded a union organization drive
among Respondent's employees, - the subsequent dis-
charge of two brothers who were organizers of the
drive, and an election which favored the Respondent
over the Union by a close margin. Respondent's explana
tions of matters pertaining to these events will be •set
forth in the following discussion. .
A. Credibility
On brief, Respondent asserts that the General Coun-
sel's evidence is based on unreliable, uncorroborated tes-
timony of two brothers who have a vested interest and
that such evidence is insufficient to support the allega-
tion of the complaint. First, it is noted that the testimony
of Jesse and Ronnie Crandall is no less self-serving.than
3 For the purposes of the bargaining order case, two for the challenged
voters, Charles and Bobby Phillips, were excluded by stipulation of the
parties Four of the challenged voters, Frank Dominquez, Jerry Bales,
Lawrence Wren, and Jack Hartman , were employed after the demand
date of November 10, 1983, and thus should not be considered in the unit
for the purposes of-the unfair labor practice proceeding Others chal-
lenged were David McLean, Robert O'Banion, George O'Banion, James
Hartman, and Ronnie and Jesse Crandall
is that of Frank McLean who, as owner and principal of-
ficial of Respondent, has a clear vested interest in avoid-
ing their claim . Secondly, many aspects of the Crandalls'
testimony was confirmed by other witnesses or not refut-
ed by McLean's own testimony. Otherwise, where con-
flicts in testimony occur, the recollections given by the
Crandalls are logically consistent and inherently probable
in consideration of the - overall circumstances. On the
other hand, much of the critical testimony given by
Richard Carrick is inconsistent with his own sworn affi-
davit to the Board' s agent and , in the light of the overall
record, I find it to be lacking in probability. Moreover,
my evaluation of his demeanor and his contradictory,
vague, and evasive testimony, especially insofar as he at-
tempted to disclaim certain portions of the affidavit
which were damaging to McLean's interest, leads to the
conclusion that such testimony is unbelievable. Signifi-
cantly, Carrick testified that although he met with an
agent of the National Labor Relations Board on January
25, 1984, and knew she was coming to his house at 8
p.m. that night to get a statement about happenings at
McLean Roofing, he went out and got "polluted" before
returning home and that he did remember much about
giving the statement and was "polluted" when he 'signed,
although he acknowledged reading it over before he did
so. In going through the affidavit paragraph' by para-
graph, however, he basically remembered portions as
being accurate except for those portions' which related to
events surrounding the various alleged unfair labor prac-
tices. He also admitted getting a copy of the statemeht in
the mail shortly thereafter at a time when he was on
layoff and that he did not attempt to disavow it.
The record shows that McLean's reasons for believing'
that the Cardalls were drinking on the job and that Jesse
was stealing gas money were based on information alleg-
edly given to him by Carrick who, it appears, was initial-
ly considered by McLean to be a prime suspect in re-
spect to gas money shortages.
Shortly after the .Crandalls were fired,- Carrick, who
had been a roofer's helper making $6 an hour prior to
the time he allegedly informed against the Crandalls, was
given an assignment working as a foreman and began re-
ceiving $19.19 an hour. Respondent maintains that this
was because it was an "area standards job" on which he
was required to pay $19.19 per hour to all employees.
However, Respondent's payroll records indicate that the
,two others who worked on the job, George O 'Banion
and Linda Taylor, received $11.25 an hour (Taylor is
McLean's sister and is usually listed as working in the
office for $3.35 to $5 an hour). Carrick and McLean
both testified that prior to the Crandalls' termination
Carrick had not been used as a foreman ; however,
McLean subsequently said that Carrick had done some'
earlier work for him as a foreman prior to November 29,
perhaps in cleaning up a job. Otherwise, it appears that
Carrick is the only helper who has ever been appointed
as foreman. When Carrick returned to Respondent in
1984 after a winter layoff, he began to receive a regular
rate of $7 an hour. '
Here, I find that evaluation of the latter factors sup-
ports the General Counsel 's allegation that Carrick's tes-
MCLEAN ROOFING CO
timony was influenced by Respondent and slanted to
support Respondent's assertions of innocence of unfair
labor practices and I therefore conclude that- Carrick's
testimony should not be credited. Moreover, based on
my observation of Carrick's demeanor and the circum-
stances described above' l will credit as truthful the state-
ments sworn to by Carrick in his affidavit. See Alvin J.
Bart & Co., 236 NLRB 24 (1978).
Turning to the-credibility of Frank McLean's own tes-
timony, I also find that his overall demeanor and his
manner of testifying was hostile and that much of his tes-
timony was in the form of mere affirmation of leading
questions asked by his own counsel. On other occasions
his testimony was merely a bare denial of the allegations
of the complaint rather than a description of events and,
otherwise, his explanations often-lacked plausibility. Ac-
cordingly, under these circumstances, where conflicts
have occurred between the testimony of McLean and
the Crandalls, I have generally concluded that the Cran-
dalls are the more believable and credible witnesses.
B. The Alleged Interrogation, Surveillance, and -
Threats -
The Union began to organize Respondent's employees
beginning in mid-October. It appears that McLean heard
something about it, for on October 14 McLean asked
Carrick if he knew who got the Union started. Shortly
after receiving a November 8 request for recognition by
the Union, McLean told Leon and Jesse Crandall that if
they wanted to get their paychecks early they had better
tell him what was going on about the Union. On Novem-
ber 18 and 25 Jesse was again asked by McLean what he
knew about the Union. The inquiries on October 14 and
November 10 and`25,were accompained by remarks that
McLean would close his business if a union came in and
on November 18 and 25 he said that when he found out,
he-would fire whoever started the Union.4
The Board's recent decision in Rossmore House, 269
NLRB .1176 (1984), notes it rejection of any per se rule
regarding interrogations and reasserts that the basic test
for evaluating whether interrogations violate the Act is -
whether under all the circumstances - the interrogation
reasonably tends to restrain, coerce,, or interfere with
rights guaranteed by the Act. Here, the questions regard-
ing union membership came from,the Respondent's presi-
dent, they elicited denials, and in most instances they
were accompanied by threats. The questioning occurred
in a_context of antiunion sentiment expressed by the em-
ployer and I conclude that the General Counse has
shown that the questions had a reasonable tendency to
restrain of interfere with rights guaranteed by the Act.
Accordingly, I find that the Respondent unlawfully in-
terrogated employees in violation of Section 8(a)(1) of
the Act as alleged.
It is well established that an employer may not threat-
en to close a plant or terminate employees because of
union activities. See, e.g., Penn Color, Inc., 261 NLRB
395, 405 (1982). Accordingly, I find these statements by
4 Although the dates specifically set forth in the complaint vary slight-
ly from those identified on the record, they clearly were "on or about"
the dates alleged
833 ,
Respondent have infringed upon the employees' Section
7 rights and I conclude that Respondent violated Section
8(a)(1) of the Act, as alleged.
Although McLean admitted his presence near the
union hall and his office on the evening of November 29,
I find that his explanation that he was in the area, return-
ing from picking up his son, is implausible inasmuch as
he could not recall whether or not his son was with him,
nor could he remember if his wife was at the office even
though he was supposedly headed to the office to switch
vehicles with her. Moreover, Carrick testified that
McLean went by the union hall twice and other wit-
nesses observed him sitting in his car before driving
away, all indication that McLean's presence near the hall
was for surveillance and not for the reason stated by
McLean. On November 19, McLean also indicated to
Jesse Crandall that he had means of finding out who was
behind the union activity-which statement created an
impression of surveillance. Finally, McLean asked Car-
rick about the union meeting the next day which further
indicates that his presence near the union hall on No-
vember 29 was something more than mere coincidence
and I conclude that the General Counsel has shown that
Respondent created the impression of surveillance in vio-
lation ;of'Section 8(a)(1) of the Act as alleged.
C. The Discharge of the Crandalls
In a discharge case of this nature,-the General Counsel
must meet an initial burden of presenting sufficient evi-
dence to support an inference that the employees' union
activities were the motivating factor in the employer's
decision to terminate the employees . Here , the record
shows that Jesse and Ronnie Crandall both were en-
gaged in promoting the organization of a union at Re-
spondent 's business and in the solicitation of representa-
tion- card signatures from other employees . The interro-
gations discussed above show that owner McLean specif-
ically suspected their involvement and I also infer that
Richard Carrick or another employee probably told,
McLean of their involvement . In any event, McLean
himself told Jesse on November 25 that he knew the
Cardalls were behind the Union . As noted , McLean's in-
terrogations were accompanied by threats to close shop
if a union came in and I conclude that Respondent is
shown to have feelings of union animus . The Crandalls
were fired shortly after they told Carrick and George
O'Banion about a planned union meeting and these indi-
viduals were observed going into McLean 's office.
Under these circumstances, I conclude that the General
Counsel has met his initial burden by presenting a prima
facie showing sufficient to support an inference that the
employees ' union activities were the motivating factor in
Respondent 's decision to terminate them . Accordingly,
the testimony will be discussed and the record evaluated
in keeping with the criteria set forth in Wright Line, 251
NLRB 1083 ( 1980), see NLRB v. Transportation Manage-
ment Corp ., 462 U.S 393 (1983), to consider Respond-
ent's defense and , in the light thereof, whether the Gen-
eral Counsel has carried his overall burden.
McLean testified that he had made a decision on No-
vember 28 to fire the Crandalls because they had been
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drinking during their lunchbreak while on a warehouse
job at Schreiber Cheese on November 25, in Carthage,
Missouri (information that was supposedly reported to
him by Carrick), and had been drinking when they were
shutting the job down, "before they got in the pick-up,"
and Jesse, was also stealing gas money.
At the time Jesse was fired, McLean's information re-
garding his alleged "stealing" also came to him from
Carrick who McLean himself had earlier suspected, inas-
much as Carrick often did not have a receipt after
having received gas money. McLean testified that he had
been running short of gas money; however, he also testi-
fied that nearly everybody was given gas money, there
was no way to verify who has been failing to turn in gas
receipts as he kept no records, and he made no overall
investigation of the problem McLean made no accusa-
tion , of any specific, occasion of "stealing" and did not
give Crandall the opportunity to explain or otherwise
produce possible gas receipts.
Carrick's "information" pertained to his alleged obser-
vation of Crandall stealing gas money the week prior to
November 29 and to observing both Crandalls drinking
at lunch and "after work or November 25, when he
worked with them on the same crew. McLean, in a
series of vague, shifting, and confused answers, testified
that Carrick came in on the afternoon of the day before
he fired the Crandalls and volunteered the information
that the Crandalls had been drinking at noon on Novem-
ber 25. Carrick testified that he told McLean on Novem-
ber 28 and that the previous week, November 21
through 25, when he was working on a Safeway job part
of the time and also the Carthage warehouse, Mclean
had been asking him about gas receipts. Respondent's
payroll records show- only the total number of hours
worked for the week rather than individual days; howev-
er, Ronnie Crandall kept a personal notebook showing
the dates, locations, and hours .of his work for Respond-
ent which shows that he worked at the Carthage ware-
house on November 17, 18, 21, and 25; was off on No-
vember 22, 23, and 28; and was fired on November 29.
This contemporaneously kept personal record supports
the recollection of both Crandalls that they worked at a
warehouse in Carthage, Missouri , with a crew that in-
cluded, George O'Banion, Frank Dominguez, James
Roland, and at,least five to seven others. Accordingly, I
find the Crandalls did not work on November, despite
some testimony by Roland and Dominguez that the
events occurred on the latter date. On direct examination
Roland recalled that on the way to the.jobsite he rode in
Ronnie Crandall's own pickup, that they stopped and
picked up a six-pack, and that he saw the Crandalls and
Clyde McLean drinking at work on the "28th" in the
evening. On cross-examination he admitted to the Gener-
al Counsel that at noon he, along with George O'Banion
and the two Crandalls, went to the park where each of
them had one beer. He also testified that, on the morning
of November 29 before work was assigned, Frank
McLean asked him if the Crandalls had been drinking
and he answered yes.
McLean testified that he had an unwrittn policy
against drinking "on the job." Respondent's witness
James Roland understood the policy to mean no drinking
in McClean's vehicles going to or coming from work
Respondents witness Dominguez testified- he was not
told of the policy by management but others told him,
"You're not allowed to drink on the job or the trucks."
He also testified that he had observed the Crandalls
drinking while standing by their truck after work,
around 4 p. m. at a job on November "28th " He also in-
dicated -a full crew had been working, including "Rick."
The Crandalls admit that they each had one beer at
lunch on November 25 and one at the, jobsite after work.
Ronnie testified that after work he opened one of the
two beers left over from lunch, took a drink, and, as it
was hot, threw it in the back of his.truck. Then on his
way back to the shop he stopped and got a 12-pack
which was shared with his brothers Jesse and Leon as
well as with George O'Banion and Clyde McLean, who
were all riding with him. It was established that, while
employees are paid for the time going from the shop to a
jobsite, they are not compensated for the return trip and
that it was not uncommon on a Friday night to stop for
beer if Crandall was driving his own vehicle. Jesse also
testified that Frank McLean himself, along with Clyde
McLean, Roland, and O'Banion , had a beer when they
got back to the shop that Friday and it was at this latter
time that McLean also made the comment to Jesse in his
office that he had found out that .Jesse and Ron were
behind the Union.
Other testimony is of record which shows that in the
past one individual was fired for coming to work drunk
(he previously had been allowed by McLean to work
while under the influence) but was rehired a week or
two later, that in October 1983 Frank McLean's uncle
Clyde was sent out by McLean on a job- after he report-
ed for work in an obviously intoxicated condition
(McLean testified he did not remember that); that
Ronnie Crandall had never been disciplined, or warned
about drinking on the job, that Jesse Crandall was never
warned about drinking during lunchbreak; that drinking
at lunch occasionally occurred in the past, usually on a
hot day; that Jesse had come to work intoxicated a
couple of years ago and was warned about it and sent
home; and that on another occasion McLean went to
Jesse's house during the day, observed Jesse drinking a
beer, but nevertheless sent him out on an emergency
type job.
Here, Frank McLean, Respondent's president and
principal manager , is shown to have considered the
Crandall brothers the principal union organizers, to have
had union animus, and to have fired them shortly after
he had acknowledged that he had confirmed his suspi-
cions about who was organizing the Union and had
threatened them with discharge. On reviewing the testi-
mony, I find that McLean's alleged business justifications
for the discharge, drinking on the job and stealing gas
money, cannot be considered to be either' believable or
the real reasons behind Respondent' s actions . First the
vague , shifting, and incredible testimony given by
McLean and "informer" Carrick do not even support
McLean's allegations that Carrick came to McLean with
unsolicited information about the Crandalls' misdeeds. I
suspect that the stories were fabricated by McLean in
MCLEAN ROOFING CO.
order to establish some justification for his.planned ac-
tions. More significantly, however, even if McLean had
been given reason to suspect the Crandalls of -improper
conduct, he did nothing to investigate the truthfulness of
the charges other than his purported one question to
Roland and he made not- effort, to allow the Crandalls to
explain or disavow the alleged improper conduct. Fur-
ther, he precipitously imposed the most severe penalty
possible, discharge, even though Ronnie had never been
warned before and Jesse, although having been warned
some time ago about coming to work intoxicated, other-
wise was Respondent's most senior and highly paid em-
ployee. McLean purported to have a policy against
drinking "on the job" yet, in the past, he had selectively
enforced the unwritten rule only with respect to some
employees who reported for work in a highly intoxicated
state. Moreover, it does not appear that the policy was
clearly established to mean anything beyond the literal
translation of "on the job" as meaning during actual
working hours and it appears that Respondent's past
practices tolerated lunchbreak and after work indulgence
in an employee's own vehicle. Also, there is no explana-
tion regarding the disparate treatment afforded the Cran-
dalls inasmuch as it is shown both O'Banion and Roland
also had a beer at lunch on November 25.
With respect to the "stealing" rationale it also appears
that no investigation was made and that Mclean probably
decided to terminate Jesse, the employee he most fre-
quently entrusted as job foreman, based only on informa-
tion from the person who had been his prime suspect.. At
the hearing Jesse denied that he had stolen gas money
and, in an attempt to impeach that testimony, Respond-
ent called employee Terry Haverfild. Haverfild first tes-
tified that he had worked with Jesse on -an occasion
when stealing had occurred. On cross- examination Ha-
verfild then testified that he himself was the one who
turned in a $10 gas receipt to McLean, that he pumped
$7 worth of gas, that he possibly bought $3 worth of
beer with the difference, and that he drank part of the
beer! Thus, at the very least, record shows that other
employees were involved in the possible misuse of gas
money and that Respondent had a haphazardous method
of giving out gas- money without controls or checks. De-
spite these circumstances, McLean'seized on the purport-
ed accusation against Jesse as cause for his immediate
termination.
Under these circumstances, I first conclude that the
underlying information supporting McLean's principal
reasons is a fabrication and secondly that, even if
McLean had received such information in the manner
described, his subsequent actions in immediate termina-
tion of the Crandalls were not justified by past practices.
Rather, he seized on whatever excuses he could think of
in order to get rid of the principal organizers of union
activity. McLean's attempt to rely on these "reasons" to
support his decision is a mere attempt to cloud his real
motivation; namely, to, retaliate aganist them for their
suspected union organizing efforts, to discourage other
employees from supporting the Union, and to keep a
union from representing his employees.
The two' reasons discussed above were the only-rea-
sons set forth as the reasons for discharge in letters sent
835
to the Crandalls on January 3, 1984, in response to the
Board's investigation of the matter. However, at the
hearing Respondent added complaints, about the quality
of their work as additional reasons. I find that Respond-
ent's shifting rationale had nothing to do with its actual
reasons. for the discharge and merely reinforces my con-
clusions that its reasons were pretextual. Moreover,
McLean's testimony regarding his complaints was vague
or otherwise shown to be inaccurate and otherwise is in-
consistent with their long work record -with the Compa-
ny, their higher rates of pay compared to other employ-
ees, and to McLean's consistent entrustment. of Jesse
Crandall with responsibility as job foreman. Although
McLean said at the time he fired the Crandalls that it
was for drinking, stealing, and "a couple other reasons,"
these other reasons were not explained and I infer that
these reasons were unmentioned because they were dis-
criminatory and antiunion in character.
As noted, the firing occurred shortly after expressions
of union animus, interrogations, threats, and the identifi-
cation of the Crandalls as union organizers and, under
the circumstances, I find that the General Counsel has
shown by a preponderance of the evidence that, by dis-
charging Jesse and Ronnie Crandall on November 29,
Respondent violated Section 8(a)(1) and (3) of the Act as
alleged.
D. Election Objections and Request for a Bargaining
Order
In consideration of the nature of Respondent's unfair
labor practices discussed above, plus the fact that Re-
spondent's operations are significantly affected by the
change of seasons and are also affected by the use of a
somewhat irregularly employed work force,- it is con-
cluded that the General Counsel has shown that Re-
spondent-'s threats, surveillance, interrogations, and ter-
mination of two principal union activists were effective
in dissipating the Union's majority support and in affect-
ing the outcome of the election subsequently held on
January 6, 1984.
As of November 9 and 10 there were 15 employees on
the payroll, 10 of whom signed authorization cards. On
January 6, 1984, 7 employees voted for the Union while
8 voted against it and 12 ballots were challenged. Thus,
a change of one of the votes against the Union as well as
the counting of challenged ballots could affect the result
of the election.5 Respondent challenged the ballots of
Robert O'Banion, George O'Banion, and James Hartman
(all three -of whom were on the payroll November 10
when the representation demand .was made), because of
the lack of hours they worked for the payroll period
ending December 8. However, employees Delno Don
McKeehan, Timothy Marshall, and Floyd E. Lewis,
with just as few hours, who were not card signers and
who apparently. did not support the Union were also on
the payroll November 10 and were not challenged.
s The Regional Director 's decision of March 12, 1984, sustained Re-
spondent 's challenged of the ballots of Charles E Phillips and Bobby
Phillips and overruled the Union's challenge of the ballots of Frank L.
Dominguez and Jerry Bales , -
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As pointed out by the General Counsel, Respondent's
new hires work on crews alongside other employees,
under the same working conditions, for the same amount
of pay and under the same supervision as other employ-
ees. As noted, work is seasonal and affected by weather
conditions and the availability of roofing work. There is
no evidence to indicate the complement of employees
working in November was not representational or that
the O'Banions or Hartman were hired on a temporary
basis or a basis different from other employees hired as
roofers or helpers for Respondent's crews. Under these
circumstances, I conclude taht the challenge to the bal-
lots of all employees on the payroll at the time of the
representation demand should be overruled. This of
course would include Jesse and Ronnie Crandall, whose
eligibility otherwise has been established by the above
finding that their termination from employment was be-
cause of Respondent's unfair labor practice.
Lawrence Wren and Jack Hartman began working the
week ending Friday, November 18, but did not work the
week of the payroll period ending December 8 Wren
testified that his last paycheck was for the week ending
December 1, that he had gone to Respondent's facility
three times thereafter, but was not sent out on any jobs.6
Wren also -called McLean twice after the election but
was told by McLean that Respondent was not hiring.
Wren neither told Mclean he quit nor was he told by
McClean that he was terminated. Wren attended the
union meeting held on November 29 and was one of the
witnesses who testified he saw McLean sitting in a car
looking across the street while Wren was standing out-
side waiting for others to -get to the meeting. The Re-
gional Director overruled on objection by the Union rel-
ative to an assertion that Wren and others were denied
work because of engaging in a protected activity. He
also noted that the Decision and Direction of Election
allowed 33 laid-off employees to vote a challenged vote.
Under the circumstances noted above, I conclude that
the record is sufficient to support the inference that
Wren was denied the opportunity of working or being
considered on a layoff status because McLean observed
his -attendance at the union meeting on November 29,
and that the challenge to Wren's ballots should be over-
ruled. No specific evidence was presented pertaining to
Jack Hartman and, 'accordingly, the challenge to his
ballot is sustained.
The Union challenged the ballot of David McLean.
David, the brother of Frank McLean, worked for Re-
spondent in 1982 until May 1983, when he started his
own business, Guarantee Roofing. On subsequent occa-
sions David and his work crew performed work for Re-
spondent. Respondent asserts that, while David is some-
times engaged to use his own crew to complete work as-
signments, Respondent pays the crew directly on the ma-
jority of occasions and on only a few occasions has it
paid David McLean.or- to show any payroll payment
(since May) or tax or social security deductions for
s As noted below, Respondent apparently engaged the subcontracted
services of his brother's company dung the first week of December to
finish the Carthage job that the regular employees had been working-on,
rather than using those employees on any job
David himself and it otherwise appears he is paid by the
job, not by the hour; as are regular employees. David
and his crew were used by Respondent in December to
finish up the "Carthage" job which the Crandalls had
been working on at the time they were terminated; and'
Frank McLean indicated that was one of the occasions
when he paid David a determined amount for the job
and David paid his own crew. Under these circum-
stances, I conclude that in November and December
1983 David McLean was self-employed and an occasion-
al subcontractor for Respondent.-He was not one of Re-
spondent's employees and had no community-'of interest
with -regular employees and I therefore find that the
Union's challenge to his ballot should be sustained.
Under the holding of the Court in NLRB v. Gisiel
Packing Co., 395 U.S. 575 (1969), a bargaining order is an
appropriate remedy for violations of Section 8(a)(1) and
(3) where it is shown-that a union obtained signed au-
thorization cards from a majority of the employees-in an
appropriate union, and, after the union had attained ma-
jority status, the employer embarked on a campaign of
illegal conduct which undermined the union majority,
status and made a fair election possible. Here, a clear ma-
jority of employees expressed their desire to be repre-
sented by the Union on November 2 and 3; on Novem-
ber 8 the Union requested recognition. Respondent then
interrogated employees, created the impression that
union activities were under surveillance, threatened to
discharge union supporters, and threatened to close its
facility if the Union was successful in organizing it. The
impact of these unfair labor practices was heightened by
the small number of employees in the unit and the fact
that the person engaged in these activities was the owner
and manager of the company. I conclude that these fac-
tors were sufficient to undermine the Union's majority
status. A bargaining order is an especially necessary
remedy, where terminations such as those involved here
constitute an unmistakable message to the remaining em=
ployee`s about the probable results of open support for a
union. I further find that Respondent's action clearly-
un-dermined the Union's majority status and that no signifi-
cant mitigating circumstances are shown that would indi-
cate that a fair second election -is possible and, accord-
ingly, a bargaining order is shown to be justified.
Based on the ruling pertaining to challenged ballots it
is now possible that the-Union may receive a majority of
the votes. Regardless of this outcome, however, it is nec-
essary and appropriate to grant a bargaining order inas-
much as appellate procedures could result in delays or
another conclusion and because, given the gravity of Re-
spondent's misconduct, the Union's card majority pro-
vides the more reliable test of employees' desires than a
contested election, see Canova Moving & Storage, 227.
NLRB 1834 (1977).
Otherwise, I also conclude that it is shown that objec-
tionable conduct by Respondent occurred between the
filing of the representation petition and the date of the
election and the Board had found that violations of Sec-
tion 8(a)(1) that occurred during such period are suffi-
cient to warrant overturning an election. Americraft M.
C, 242 NLRB 1312, 1315-16 (1979).
837 MCLEAN ROOFING CO.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing'of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining is:
All full-time and regular part-time roofers and la-
borers employed by McLean Roofing Company, at
its facility located at 210 East 12th Street, Joplin,
Missouri, but EXCLUDING office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act, and all other employees.
4. By interrogating employees concerning their union
sypathies and activities or those of other employees; by
creating the impression of surveillance of employees'
union activities, and by threatening employees with dis-
charge for engaging in union activities, Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them by Section 7 of
the Act, and thereby has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
5. By discharging Jesse Crandall and Ronnie D. Cran-
dall on November 29, 1983, Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
6. By failing and refusing to recognize and bargain
with the Union on and since November 10, 1983, while
engaging in unfair labor practices which undetermined
the Union's majority status and impeded the election
process, Respondent violated Section 8(a)(1) and (5) of
the Act.
7. The unfair labor practices found above.were inde-
pendently, substantially, and pervasively disruptive of the,
election process, preclude a fair election, and warrant an
order to bargain.
REMEDY
Having found that'Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having discriminatorily discharged two
employees, I find it necessary to order it to offer them
reinstatement with compensation for loss of pay and
other benefits, in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in Flori-
da Steel Corp., 138 NLRB 716 (1962). And, because the
serious nature of the violations and Respondent's egre-
gious misconduct demonstrates a general disregard for
the employees' fundamental rights, I find it necessary to
issue a broad order, requiring Respondent to cease and
desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act, Hickmott
Foods, 242 NLRB 1357 (1979), and to bargain with the
Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER ' -
The Respondent, McLean Roofing Company, Joplin,
Missouri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating. any employees about
union support or union activities. -
(b) Threatening employees with the closure of its busi-
ness because of their union activities.
(c) Creating the impression of surveillance of employ-
ees' union activities.
(d) Threatening employees or otherwise discriminating
against them in retaliation for engaging in union activi-
ties or other protected concerted activities.
(e) Discharging any' employees or otherwise discrimi-
nating against them in retaliation for engaging in union
activities or other protected concerted activities.
(f) Rufusing to recognize and bargain 'with United
Union of Roofers, Waterproofers, and Allied Workers
Local No. 20 as the exclusive representative of 'the em-
ployees in the following appropriate unit:
All full-time and regular part-time roofers and la-
borers employed by McLean Roofing Company, at
its facility located at 210 East 12th Street, Joplin,
Missouri, but EXCLUDING office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act, and all other employees.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jesse Crandall and Ronnie D. Crandall imme-
diate and full reinstatement and make them whole for the
losses they incurred as a result of the discrimination
against them in the manner specified in the remedy sec-
tion above and remove from its files any reference to
their discharge on November 29, 1983, and notify them
in writing that this has been done and that evidence of
this unlawful discharge will not be used as a basis for
future personnel action against them.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) On request, bargain in good faith with United
Union of Roofers, Waterproofers and Allied Workers
Local No. 20 as the exclusive representative of the em-
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules; be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 838
ployees in the appropriate unit and embody in a signed
agreement any understanding reached.
(d) Post at its Joplin, Missouri facility and mail to all
employees who were within the bargaining unit between
November 10, 1983, and January 6, 1984, copies of the
attached notice marked "Appendix."e Copies of the
notice, on forms provided-by the Regional Director for
Region 17, after being signed •by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees- are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
IT IS FURTHER ORDERED that Case 17-RC-955 8 be re-
manded to the Regional Director for Region 17 for such
further action as is necessary based on the findings and
conclusions herein.
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An. Agency of the United States Government
The National Labor Relations Board has found that were
violated the National Labor Relations Act and has or-
dered us to post,and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice -
To choose not to engage in any- of these protect-
ed concerted activities.
WE WILL NOT discharge any employee for engaging in
union activities or otherwise exercising any of the rights
guaranteed by Section 7 of the National Labor Relations
Act.
WE WILL NOT discourage membership in United
Union of Roofers, Waterproofers and Allied Workers
Local No. 20, or any other labor organization , by inter-
rogating employees concerning their union activities and
those of other employees; threatening, business closure or
discharge or by creating the impression that employee
union activities were under surveillance.
WE WILL NOT any other manner interfere with, re-
strain, or coerce our employees in the exercise of rights
guaranteed to them by Section, 7 of the National Labor
Relations Act.
WE WILL, on request, recognize and bargain with
United Union of Roofers, Waterproofers and Allied
Workers Local No. 20, and put in writing and sign any
bargaining agreement we reach covering employees in
this bargaining unit:
All full-time and regular part-time roofers and la-
borers employed by McLean Roofing Company, at
its facility located at 210 East, 12th Street, Joplin,.
Missouri, but EXCLUDING office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act, and all other employees.
WE WILL offer Jesse Crandall and Ronnie D. Crandall
immediate and full recall or 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 WE WILL make them
whole for any loss of pay suffered by them as a result of
the discrimination practiced against them with interest.
WE WILL remove from our files any reference to the
discharge of Jesse Crandall and Ronnie D. Crandall on
.November 29, 1983, and WE WILL notify them in writing
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
actions against them. -
MCLEAN ROOFING COMPANY
t