Seminole Fire Protection, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 590 (N.L.R.B. 1992)

590
306 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its exceptions, the Respondent contends that the judge erred
by preventing the Respondent from conducting a full cross-examina-
tion of Tyler Hughes. We have reviewed the record and conclude
that the Respondent was provided an opportunity for full cross-ex-
amination of witness Hughes. Specifically, we note that in response
to the judge’s asking the Respondent’s president, Russell Klingbeil,
during the examination of Hughes whether he had ‘‘Anything
more?,’’ Klingbeil said ‘‘Nothing.’’ In addition, the judge acted well
within his discretion in limiting the Respondent’s cross-examination
to one questioner per witness.
2 In the section of his decision concerning the discharge of Tyler
Hughes, the judge inadvertently referred to a second customer letter
as having been written on January 4, 1991. The correct year was
1990.
The section of the judge’s decision concerning the March 27, 1990
meeting was inadvertently titled March 17, 1990.
Seminole Fire Protection, Inc. and Sprinklerfitters
United Association Local 821, AFL–CIO. Cases
12–CA–13865, 12–CA–13877, 12–CA–13944,
12–CA–13962, and 12–CA–13965
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 21, 1991, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions, and the General Counsel
filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Seminole Fire Protection,
Inc., Apopka, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
E. Walter Bowman, Esq., for the General Counsel.
Russell Klingbeil, of Orlando, Florida, for the Respondent.
Oscar George Chaires, of Ocala, Florida, for the Charging
Party.
DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. This
case was heard in Orlando, Florida, on August 5 and 6,
1991. An amended consolidated complaint issued on March
28, 1991. The charges were filed on March 7, March 16,
April 30, May 11, and May 14, 1990, respectively.
The complaint alleged that Respondent engaged in activity
in violation of Section 8(a)(1) by interrogating and threat-
ening its employees because of union activities; and activity
in violation of Section 8(a)(3) by terminating the employ-
ment of four employees because of union activity.
Respondent admitted the commerce and jurisdictional alle-
gations of the complaint. In view of that admission, I find
that it is an employer at its facility in Apopka, Florida, where
it is in the business of marketing, fabricating, and installing
fire protection systems, and is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. I also
find, on the basis of Respondent’s admission, that the Charg-
ing Party (Union) is a labor organization within the meaning
of Section 2(5) of the Act.
Respondent terminated four employees soon after a union
organizing campaign started in January 1990. Gregory Ben-
nett was discharged on February 1. James Lay was fired on
February 23. Tyler Hughes was fired on February 26. Tim-
othy Viehweger worked on February 27 and took off begin-
ning February 28 for surgery because of a hernia. When
Viehweger reported to Respondent in April that he was ready
to return to work, he was told that he was no longer needed.
After being phoned by employee Gregory Bennett, Union
Organizer Oscar Chaires visited Respondent’s jobsites at
Vistana Resorts and Wekiva Riverwalk on January 25, 1990.
Several employees including all four alleged discriminates
signed union authorization cards at that time.
After January 25, 1990, David Dickey was called into the
office of Respondent’s part owner Daniel Driggers and asked
about the Union. Driggers asked Dickey what was going on
with the Union and had Dickey talked with Union Organizer
Oscar Chaires. Dickey replied that he had talked with
Chaires. Driggers asked who had talked with Chaires and
Dickey told him that his entire crew had talked with Chaires.
At that time Dickey’s crew included Gregory Bennett, Tim
Viehweger, and Shannon Rodus. On February 21 or 22,
1990, while Tyler Hughes was wearing a union ball cap,
Driggers asked Hughes if he was involved with the Union.
When Hughes replied that he was Driggers looked dis-
appointed and left.
The Union filed a petition for an election on February 26,
1990. The NLRB Regional Director issued a direction of
election on April 11, 1990.
Respondent met with and wrote its employees expressing
that it opposed the union organizing efforts.
Findings
All the above evidence including the testimony of David
Dickey and Tyler Hughes regarding questioning by Daniel
Driggers, is not disputed on the record. Although Driggers
testified, he was not asked about the conversations with
Dickey or Hughes. I credit the above evidence.
Respondent, in its brief, argued that it was unlikely that
Driggers knew of the January 25 meeting involving employ-
ees and the union organizer, when he allegedly interrogated
David Dickey. Respondent argued that the only reason
Driggers had to question Dickey, was Respondent’s belief
that Dickey planned to leave his employment to work for his
brother in a union. However, that argument is not supported
by evidence. Although Driggers testified, he did not testify
about Dickey’s allegations that Driggers questioned him
about the employees’ meeting with Union Organizer Chaires.
Dickey’s testimony in that regard was unrebutted by
Driggers. That testimony illustrated that Driggers specifically
asked Dickey about the meeting with Union Organizer
591SEMINOLE FIRE PROTECTION
Chaires. Therefore, I find that the record evidence failed to
support Respondent’s contention that Driggers was asking
Dickey about his plans to eventually leave and go to work
with his brother in a union.
As mentioned above, Respondent contends that David
Dickey held out that he planned to leave and go to work
with his brother in a union. However, there was no showing
that David Dickey was a known supporter of the Union in
its organizing efforts among Respondent’s employees, when
he was interviewed by Daniel Driggers in late January.
The full record illustrates that Respondent strongly op-
posed the Union’s organizing efforts. Dickey was not a
known union supporter in the organizing campaign. Subse-
quently, Driggers questioned Tyler Hughes as to whether
Hughes supported the Union because Hughes was wearing a
union ball cap on the job. I find that Driggers’ interrogation
of Dickey tended to coerce the employees in their union ac-
tivities and constitutes a violation of Section 8(a)(1) of the
Act. The interrogation was conducted in Driggers’ office.
Driggers was one of Respondent’s highest supervisory offi-
cials. Driggers gave no assurances regarding possible con-
sequences of the interrogation and Dickey was not advised
of why he was being questioned. At that time there was
nothing pending which justified the interrogation of Dickey.
All those factors have been considered in prior cases as
grounds for determining that interrogation constitutes viola-
tive conduct. Southwire Co. v. NLRB, 820 F.2d 453 (D.C.
Cir. 1987); Kona 60 Minute Photo, 277 NLRB 867 (1985);
WXON-TV, 289 NLRB 615, 619 (1988); NLRB v. Brookwood
Furniture, 701 F.2d 452 (5th Cir. 1983).
The interrogation of Tyler Hughes presents a more dif-
ficult question. At that time Hughes was not a known, open
and active, union supporter. However, Hughes was wearing
a union ball cap. In view of that fact I am reluctant to find
that incident constitutes an additional 8(a)(1) violation. Dy-
namics Corp. of America, 286 NLRB 920 (1987); Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985); Rossmore House,
269 NLRB 1176 (1985).
Gregory Bennett
Gregory Bennett worked for Respondent for about 3
months. Bennett was a fitter helper. He was the employee
that first contacted Union Organizer Chaires. After talking
with Chaires, Bennett talked to the employees on his job at
Vistana Resorts about the Union. After he was contacted by
Bennett, Chaires came out and talked with Respondent’s em-
ployees. As mentioned above, Bennett along with others,
signed a union authorization card on January 25. Bennett was
in David Dickey’s crew and as such, was among those em-
ployees identified to Daniel Driggers as having talked with
the union organizer.
Bennett wore a union tee shirt at work beginning on Janu-
ary 26. On that day Bennett went by the office to pick up
his paycheck. While there he saw Respondent’s manager
Mark Stimmel.
During the next week Bennett’s foreman, David Dickey,
was off work due to a back problem. However, Bennett testi-
fied that Dickey came out to the job at least twice that week
‘‘just to keep (the workers) going on what was going on.’’
Bennett worked with Dickey’s helper Shannon Rodus.
The record failed to show that anyone was designated to
replace Dickey as foreman during the week Dickey was out.
Shannon Rodus who was Dickey’s helper, picked up
Dickey’s truck, drove it during each workday, and returned
the truck to Dickey’s house after work each day. Both Ben-
nett and Rodus were helpers. Russell Klingbeil testified that
Bennett was acting foreman in the absence of Dickey. How-
ever, there was no testimony from anyone showing that Ben-
nett, Dickey, or anyone on their crew, was ever told that
Bennett was acting foreman. President Klingbeil admitted
that he had no knowledge that anyone had designated Ben-
nett as acting foreman. Bennett testified that Dickey contin-
ued to handle the foreman functions of keeping up with the
employees time and checking on supplies on the job. Dickey
also testified that he continued to be responsible for moni-
toring the level of supplies and material on the job.
On January 31 Rodus and Bennett ran out of materials.
Because of that Rodus and Bennett stopped work early and
Rodus returned the company truck to the home of David
Dickey where Rodus and Bennett told Dickey why they had
stopped work.
On February 1, Rodus and Bennett went by the shop to
pick up needed materials. Bennett testified he was called into
the general manager’s office where he was fired by Mark
Stimmel. According to Bennett Stimmel said:
we are getting your last paycheck, we cannot afford to
pay you anymore. And, I just, you know, why, and he
said, we just can’t afford to pay you no more.
Bennett was not given any other reason why he was dis-
charged. He was not given a copy of his termination form.
However, Respondent furnished a termination form during
the hearing which shows as the reason it terminated Bennett:
‘‘failure for not showing up for work.’’
Foreman David Dickey testified that he had occasionally
stopped work early because of parts shortage and that he had
not been disciplined on those occasions.
Dickey’s helper Shannon Rodus, who along with Bennett
stopped work early on January 31, was not fired or otherwise
disciplined.
Findings
I find on the basis of the record evidence, that General
Counsel proved prima facie, that Gregory Bennett was dis-
charged because of his union activity. The evidence in that
regard includes evidence that Respondent opposed its em-
ployees’ organizing efforts; the employees commenced their
organizing efforts on January 25, 1990, when Union Orga-
nizer Chaires came on the job and several employees, includ-
ing Gregory Bennett, signed union authorization cards; Greg-
ory Bennett was the employee that originally contacted
Chaires regarding organizing Respondent’s employees; Greg-
ory Bennett was one of the first, if not the first, employee
to present himself to high-level supervision wearing union
clothing when he went to the office and saw Manager
Stimmel on January 26 while he was wearing a union tee
shirt; and Bennett was discharged in an apparently discrimi-
natory manner shortly after his union activities became
known to Respondent.
The evidence illustrates that Respondent campaigned
against the Union and committed 8(a)(1) violations as shown
above.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The evidence regarding the employees’ meeting with Or-
ganizer Chaires on January 25 is unrebutted and is credited
as is the evidence showing that Bennett was the employee
that first contacted Chaires and that Bennett came to the of-
fice in the presence of Mark Stimmel wearing a union tee
shirt. It was around that time that Daniel Driggers questioned
David Dickey about the meeting with Union Organizer
Chaires.
On February 1, Bennett was fired after he and another
helper, Shannon Rodus, left work on the previous day after
running out of needed materials. Both Rodus and Bennett
were fitter helpers. Their foreman, David Dickey, was off
work due to a bad back. Rodus and Bennett reported to
Dickey upon leaving work. Rodus returned the company
truck to Dickey’s house.
Russell Klingbeil testified that Rodus had only 6 months’
experience and that Bennett was acting as crew chief or fore-
man in the absence of David Dickey. However, there was no
evidence that Bennett was ever told that he was acting fore-
man. Bennett had actually worked for Respondent a shorter
time than Rodus. Bennett had worked for Respondent for 3
months.
The record showed that David Dickey continued to serve
as foreman while out from work during the last week of Jan-
uary 1990. Dickey maintained the crewmembers’ time
records and the supplying of materials for the job even
though he was out from work due to back injury.
On cross-examination Respondent questioned Bennett on
whether he had prior experience and whether he had served
as foreman for an earlier employer but offered no evidence
that Bennett was ever instructed to serve as foreman or act-
ing foreman while working for Respondent.
Only Bennett was discharged on February 1. Dickey, the
foreman, was not consulted regarding Bennett’s discharge.
Rodus received no disciplinary action.
David Dickey testified without rebuttal, that he had occa-
sionally stopped work early when his crew ran out of mate-
rials. Dickey was never disciplined because he stopped work
early.
Finally, Dickey admitted that he was responsible for the
job at the time of Bennett’s discharge even though he was
out of work because of his back. Dickey admittedly was re-
sponsible to maintain the job in materials and supplies. How-
ever, Dickey was not disciplined even though it was
uncontested that Bennett and Rodus ran out of materials and
had to stop work for that reason.
I find that the record proved that Respondent treated Greg-
ory Bennett disparately when he was fired on February 1 in
view of the evidence showing that Shannon Rodus com-
mitted the same alleged offense and was not disciplined and
that Foreman David Dickey had engaged in similar activity
on occasion but was never disciplined. NLRB v. Inland Em-
pire Meat Co., 611 F.2d 1235 (9th Cir. 1979); D’Youville
Manor v. NLRB, 526 F.2d 3 (1st Cir. 1975); Kent Corp., 275
NLRB 138 (1985).
In view of my finding that General Counsel proved a
prima facie case, I shall consider whether Bennett would
have been discharged in the absence of his union activities.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983);
Delta Gas, 283 NLRB 391 (1987), enfd. 840 F.2d 309 (5th
Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir.
1987); Yaohan of California, 280 NLRB 268 (1986).
Respondent advanced three different versions of why it
discharged Gregory Bennett. When Bennett was discharged
he was told by Manager Mark Stimmel that Respondent
could not afford to pay him anymore. That testimony by
Bennett was unrebutted. Stimmel, who is no longer em-
ployed by Respondent, did not testify.
Subsequently Respondent prepared a termination form
which was not given to Bennett. That form lists as reason
for termination, ‘‘failure for not showing up for work.’’
Finally, Respondent’s attorney at the time, submitted a po-
sition statement on behalf of Respondent, dated June 1, 1990,
which states that Bennett was fired because ‘‘(t)he company
came under severe criticism from it’s customer for leaving
the job, two straight days.’’ Despite the statements in that
letter, President Russell Klingbeil admitted that Respondent’s
records show that Bennett did not leave work early on 2
straight days.
Evidence showing that an employer gave shifting reasons
for action against an alleged discriminatee, illustrates that
those reasons are pretextuous. Zurn Industries, 255 NLRB
632, 634, 635 (1981). ‘‘A pretextual reason, of course, sup-
ports an inference of an unlawful one.’’ Keller Mfg. Co., 237
NLRB 712, 717 (1978).
In addition to the fact that Respondent changed its basis
for discharging Bennett, the evidence also shows that other
employees including another helper, and a foreman, engaged
in conduct similar to that of Bennett, but were never dis-
ciplined. That evidence also casts doubt on whether Re-
spondent was truthful in its contention that Bennett would
have been discharged in the absence of union activities.
Respondent argued that the other helper, Shannon Rodus,
was not fired because Bennett was acting foreman. However,
there was no record evidence showing that Bennett was ever
appointed acting foreman. The record illustrated that David
Dickey continued to serve as foreman despite the fact that
he was out of work. Both Rodus and Bennett reported to
Dickey at the end of each workday and Dickey came out on
the job to check on supplies and materials. Therefore, the
record did not support Respondent’s assertion that Bennett
was treated differently than Rodus because Bennett was act-
ing foreman. Respondent did not offer any other justification
for treating Bennett differently than Rodus.
Moreover, even if Respondent’s assertion is credited, the
record would continue to support a finding of disparity. If
Bennett was acting foreman, then I must question how he
was treated in comparison with the way Respondent nor-
mally treated its working foreman. The only evidence in that
regard was the unrebutted testimony of David Dickey.
Dickey testified that he occasionally stopped work early
when his crew ran out of supplies and that he had never been
disciplined because he stopped work early. Respondent rou-
tinely received the time records from Dickey and, for that
reason, would have been aware when Dickey stopped work
early. Some of those time records were received in evidence.
In consideration of that evidence it is apparent that Bennett
was not treated in the same manner that Respondent treated
its foremen when they stopped work early because they ran
out of supplies and materials.
Finally, the record failed to reveal that Respondent inves-
tigated the basis for Rodus and Bennett leaving early on Jan-
593SEMINOLE FIRE PROTECTION
uary 31. Neither Foreman David Dickey nor Gregory Bennett
was asked to explain why Rodus and Bennett left early on
January 31. By failing to investigate why Rodus and Bennett
left work early, Respondent cast further doubt on its reasons
for discharging Bennett.
In view of the above, I find that Respondent failed to
show that Gregory Bennett would have been discharged in
the absence of his union activities. Respondent failed to
prove that other employees who had not been seen with a
union tee shirt, have been discharged for leaving work early
due to running out of supplies and materials.
I find that Bennett was discharged because of his union
activities and Respondent failed to prove that he would have
been discharged in the absence of union activities.
Tyler Hughes
Tyler Hughes was working on the Wekiva Riverwalk job
when he was fired on February 26, 1990. He was a non-
supervisory working foreman and had worked for Respond-
ent on two occasions. When discharged he had worked for
Respondent for the last 25 months. Until February 23
Hughes had a helper, James Lay. Lay was terminated on
February 23. After February 23, Hughes worked alone.
Both Hughes and Lay signed union authorization cards
when Oscar Chaires visited their job on January 25, the same
day he had visited the employees on the Vistana Resorts job.
After January 25, Hughes attended union meetings and he
occasionally wore a union baseball cap and a union tee shirt
at work.
On one occasion when Hughes was wearing a union base-
ball cap, Respondent’s vice president and part owner Daniel
Driggers came on his job. That was on February 21 or 22,
1990. From September 1989 through February 1990,
Driggers acted as field superintendent for Respondent.
Driggers asked Hughes if Hughes was involved with the
Union. Hughes told him that he was and that he had signed
a union card. Driggers looked disappointed and left. Hughes
recalled that incident occurred before James Lay was dis-
charged. Hughes testified that Lay wore a union hat on occa-
sion while at work but Hughes did not recall whether Lay
was wearing his union cap on the day Driggers came on the
job and asked Hughes about the Union.
Driggers did not deny that the above conversation oc-
curred as recalled by Hughes. I was impressed with Hughes’
demeanor. I credit his testimony.
Hughes testified that during mid-February, Driggers told
him that he would be going to a job at Westwood Center
when he completed the job at Wekiva Riverwalk. However,
on February 26 Driggers came to the job and told Hughes
he was terminated because Respondent could no longer af-
ford to pay him. Hughes’ termination form lists the reason
for termination as ‘‘lay off due to lack of work.’’
Hughes testified that there were several weeks of work re-
maining on the Wekiva Riverwalk job when he was dis-
charged.
Respondent’s president admitted that despite what Hughes
was told and despite the fact that Hughes’ termination form
stated that Hughes was terminated because of lack of work,
Hughes was actually terminated because of a suspended driv-
er’s license. Hughes as crew foreman, was responsible for
driving the company truck. However, Hughes’ license had
been suspended because of a DUI conviction. President
Klingbeil testified that Respondent was notified of Hughes’
license suspension by Respondent’s insurer on April 12,
1989.
Findings
As in the case of Gregory Bennett, I find that the evidence
supports a finding that Hughes was discharged because of his
union activities. I base that finding on the evidence showing
that Respondent opposed its employees’ union organizing ef-
forts. Hughes engaged in union activities. Respondent
learned of those activities when its part owner Daniel
Driggers saw Hughes wearing a union ball cap and ques-
tioned Hughes about his union involvement. Hughes told
Driggers that he had signed a union card. Shortly afterward
Hughes was discharged. Respondent gave several different
reasons for Hughes’ discharge including that it could no
longer afford to pay him; that he was terminated due to lack
of work and that he was discharged because his driver’s li-
cense had been suspended. Moreover, Respondent’s president
admitted that Hughes was not discharged because Respond-
ent could no longer afford to pay him or because it was out
of work. Instead according to President Klingbeil, Hughes
was discharged because his driver’s license had been sus-
pended. However, Klingbeil admitted that Respondent knew
of Hughes’ license suspension for some 10 months before it
discharged Hughes on February 26, 1990.
The Board and courts have traditionally viewed substantial
delays in action after knowledge of the alleged cause, as evi-
dence of illegal motivation. Merchants Truck Line v. NLRB,
577 F.2d 1011 (5th Cir. 1978); National Grange Mutual In-
surance Co., 207 NLRB 431 (1973).
Finally, near the end of the hearing, Respondent presented
evidence in an effort to show an additional reason why it dis-
charged Tyler Hughes. Respondent offered two letters from
the general contractor on the Wekiva Riverwalk job com-
plaining that the work was behind schedule. However, during
cross-examination it was shown that one of those letters was
written before Tyler Hughes was assigned to Wekiva
Riverwalk.
As indicated above, evidence showing that an employer
gave shifting reasons for action against an alleged
discriminatee, illustrates that those reasons are pretextuous.
Zurn Industries, 255 NLRB 632, 634, 635 (1981). ‘‘A
pretextual reason, of course, supports an inference of an un-
lawful one.’’ Keller Mfg. Co., 237 NLRB 712, 717 (1978).
In view of the record I find that Respondent was moti-
vated by Hughes’ union activities in its decision to discharge
him.
Moreover, the record shows that Hughes would not have
been discharged in the absence of his union activities. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, (1983); Delta Gas,
283 NLRB 391 (1987), enfd. 840 F.2d 309 (5th Cir. 1988);
Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir. 1987);
Yaohan of California, 280 NLRB 268 (1986).
According to Respondent’s president, Hughes was dis-
charged because his driver’s license had been suspended.
Klingbeil admitted that Respondent knew of that suspension
for 10 months before it discharged Hughes. Klingbeil testi-
fied that it had to take steps to accommodate Hughes’ inabil-
ity to drive by, among other things, assigning him to the
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wekiva Riverwalk job which was across the street from
Hughes’ apartment.
Klingbeil admitted that the Wekiva Riverwalk job was not
completed when Hughes was discharged. Nevertheless, ac-
cording to Klingbeil that job was near enough to completion
that Respondent could do without Hughes.
However, the evidence shows that shortly before his dis-
charge Hughes was told by Daniel Driggers that he would
be going to a job at Westwood Center when he completed
the job at Wekiva Riverwalk.
That evidence which I credit, illustrates two important
considerations. It shows that Respondent intended for Hughes
to complete the Wekiva Riverwalk job and, at a time when
Respondent was fully aware of Hughes suspended license, it
intended to continue his employment past the Wekiva
Riverwalk job.
Respondent failed to offer evidence that anything occurred
after Driggers told Hughes he would be going to Westwood
Center, which caused it to decide against continuing Hughes’
employment. The record shows that one event did occur.
That was Driggers learning that Hughes was involved with
the Union.
Therefore, I find that Respondent failed to show that
Hughes would have been discharged in the absence of his
union activities. Of four reasons advanced by Respondent at
various times to justify its discharge of Hughes, President
Russell Klingbeil’s testimony illustrates that the first two of
those reasons were incorrect. Hughes was not discharged be-
cause Respondent could not afford to pay him and he was
not discharged because of lack of work. As to Klingbeil’s
testimony that Hughes was discharged because of a sus-
pended license, the record shows that Respondent knew of
that problem for at least 10 months and, shortly before
Hughes’ discharge Respondent told Hughes that it planned to
transfer him to another job after he completed Wekiva
Riverwalk. Therefore, I do not credit Respondent’s evidence
that Hughes was discharged because of a suspended license.
Finally, I do not credit Respondent’s evidence that cus-
tomer complaints influenced its decision to discharge
Hughes. The first of two letters from a customer complaining
about the Wekiva Riverwalk work, was written before
Hughes started working on that job. The record illustrated
that letter influenced Respondent’s decision to assign Hughes
to that job in order to straighten out the problems mentioned
in the customer’s letter.
The second customer letter was written on January 4,
1991. Respondent had that letter for over 7 weeks before it
decided to discharge Hughes. During that 7 weeks nothing
was said to Hughes to show that Respondent was considering
discharging him because of the letter. To the contrary, short-
ly before his discharge, Daniel Driggers told Hughes that he
would be sent to another job after he completed his work at
Wekiva Riverwalk.
In view of the above I find that the evidence failed to
prove that Respondent would have discharged Tyler Hughes
in the absence of his union activities.
James Lay
Although subpoenaed by General Counsel James Lay did
not appear and testify during the hearing.
Lay worked as helper to Tyler Hughes on the Wekiva
Riverwalk job.
Lay was terminated on February 23, 1990. His termination
form lists as reason for termination, ‘‘laid off—due to lack
of work.’’ However, in a letter of position to the NLRB Re-
gional Director, Respondent denied that it had knowledge of
any union activity by James Lay and indicated that Lay had
been caught sleeping on the job and had demonstrated irreg-
ular attendance at work. The letter stated that the things
which directly caused Lay’s discharge was his being caught
sleeping and the fact that the project he was working on was
substantially finished and there was no practical way to send
Lay anywhere else.
Tyler Hughes testified that he was not consulted about
Lay’s termination. According to Hughes, there was work re-
maining for Lay on February 23.
Daniel Driggers testified that Lay’s attendance including
his frequent absences on Mondays and Fridays, illustrated
that Lay was not dependable and when Respondent deter-
mined which people to keep, they decided against Lay be-
cause he was not dependable.
When Driggers was asked on cross-examination, when it
was that Respondent determined which people to keep, he
was unable to recall a time other than his belief that that de-
cision was made sometime a little later than October 1989.
When asked under cross about one of the reasons proffered
in Respondent’s position statement being that Lay was
caught sleeping on the job, Driggers testified that he had for-
gotten about that reason for Lay’s discharge. Driggers admit-
ted there was no written documentation of Respondent catch-
ing Lay asleep on the job.
Driggers admitted that the Wekiva Riverwalk job was
completed by another employee and his helper, after James
Lay and Tyler Hughes were discharged in February 1990.
Findings
In view of my finding above, the case of James Lay
causes deep concern. The record revealed that Lay may have
been discharged because of the employees’ union activities.
However, that suspicion alone does not establish a violation.
There was no evidence that Respondent knew that James
Lay supported the Union. The evidence does show that Re-
spondent, through Daniel Driggers, learned that all the mem-
bers of David Dickey’s crew had signed union cards. How-
ever, there was no showing that Respondent ever learned that
Tyler Hughes’ crew had signed cards. In fact, as shown on
the record, James Lay signed a union authorization card on
January 25, 1990.
Tyler Hughes was questioned about his involvement with
the Union shortly before Lay was discharged. However, Dan-
iel Driggers did not ask about Lay and Hughes’ account of
that conversation, which I credit, failed to show that anything
was said about Lay’s involvement with the Union.
Moreover, even though Tyler Hughes recalled that Lay did
on occasion wear a union ball cap or tee shirt, he did not
recall whether Lay was wearing union clothing on the day
Hughes was interrogated by Driggers. There was no other
evidence showing that a supervisor was present at any time
Lay was wearing union clothing.
James Lay did not appear at the hearing despite efforts by
General Counsel.
General Counsel argued that Lay was discharged as a pre-
cursor to and related to the discharge of Hughes some 4 days
later. However, that argument was not supported in the
595SEMINOLE FIRE PROTECTION
record. There was no evidence showing why it was nec-
essary, or why Respondent may have thought it was nec-
essary, to discharge Lay in order to subsequently discharge
Hughes.
In view of the record evidence I am unable to find that
General Counsel proved a prima facie case that Lay was dis-
charged because of his union activities.
Timothy Viehweger
Timothy Viehweger, like Gregory Bennett, was a fitter
helper on David Dickey’s crew at the Vistana Resort job. He
had worked for Respondent about a year and a half when he
took off work on February 27, 1990, for surgery.
Viehweger recalled that Union Organizer Chaires came on
the job at Vistana Resort on January 25 and at least one
other occasion before he last worked on February 27. Chaires
talked with the employees including Viehweger. Viehweger
along with the other employees, signed a union authorization
card.
After January 25 Viehweger wore a union tee shirt at work
two or three times a week until February 27. Viehweger was
not aware that any supervisor noticed him wearing anything
which advertised the Union. Viehweger also passed out
union cards and talked about the Union with other employ-
ees.
On April 20, 1990, immediately after Viehweger received
his doctor’s release to return to work, he called Respondent
and told Daniel Driggers that he had been released and could
return on April 23. Driggers told Viehweger that Respondent
had no work and no longer needed Viehweger. However, ac-
cording to Viehweger, the Vistana Resort project had not
been completed on April 20.
Subsequently Viehweger was reemployed by Respondent
on May 25, 1991.
Findings
Although Respondent learned that David Dickey’s crew
talked with the union organizer when Daniel Driggers ques-
tioned Dickey, there was no evidence that Respondent knew
of Viehweger’s involvement with the Union beyond meeting
with the organizer. Viehweger testified that he was not aware
of any supervisor observing him wearing union clothing.
Moreover, unlike the situation involving Gregory Bennett,
Respondent took no action against Viehweger until several
months later.
Unlike the situation involving Bennett and Hughes, there
was no showing of discriminatory treatment in the case of
Viehweger nor was there a showing of changing assertions
as to the basis for Respondent’s refusal to reinstate
Viehweger. In that regard the evidence illustrated that Re-
spondent was reducing its work force at the time Viehweger
applied to go back to work in April 1990. General Counsel
conceded that point in his brief.
I am unable to find evidence which proves a prima facie
case regarding Viehweger. Of special significance in that re-
gard was the failure of the record to show that Respondent
treated Viehweger in a disparate manner. The record in fact,
supported Daniel Driggers’ comment to Viehweger when
Viehweger phoned on April 20, that Respondent had no
work for Viehweger.
At the time of the hearing Viehweger had returned to work
for Respondent. The evidence failed to show that he had
been denied reinstatement during the period of time before
he returned to work, because of his union activities.
March 17, 1990
Former employee Paul Goldman testified that he attended
a meeting which Respondent’s president held with the field
employees on March 27, 1990. Goldman recalled that either
President Klingbeil or Manager Mark Stimmel told the em-
ployees that he would not tolerate union activities, they
would not accept union contracts and that they would close
their doors. Goldman could not recall whether Klingbeil or
Stimmel made those statements but he testified that it was
one of the two.
On cross-examination Goldman testified that he did not re-
call what was said in the speech independently of his testi-
mony in an affidavit. Goldman testified that he was now able
to recall only bits and pieces of the March 1990 meeting.
Respondent called Stephen Jefferies who testified that he
was employed by Respondent and was in charge of six or
eight of Respondent’s jobs at the time of the March 27 meet-
ing between Respondent and the field employees. Jefferies
testified that President Klingbeil did not tell the employees
that he would not tolerate any union activity and Klingbeil
did not say he would close the business if the union pre-
vailed.
Crew Foremen Russell Roberts, Wayne Reeves, and Mark
Lomen testified that they attended the speech which
Klingbeil gave to the employees on March 27, 1990. Each
testified that Klingbeil did not say that he would not tolerate
any union activity nor did he say that he would close the
business if the Union prevailed.
I am unable to credit the testimony of Paul Goldman that
Respondent’s agents Klingbeil or Stimmel told the employ-
ees that Respondent would not tolerate union activities or ac-
cept union contracts and would close their doors if the Union
came in. Goldman admitted that he had no recollection of
what was said in that meeting and that he was testifying on
the basis of statements he had made in a prehearing affidavit.
Stephen Jefferies, Russell Roberts, Wayne Reeves, and Mark
Lomen disputed Goldman’s testimony. I was not impressed
with Goldman’s demeanor and I do not credit his testimony
to the extent it conflicts with the testimony of Jefferies, Rob-
erts, Reeves, or Lomen.
Findings
The credited evidence shows that Respondent’s president
Russell Klingbeil did not tell the employees that Respondent
would not tolerate union activity, he did not say that Re-
spondent would reject any union contract and he did not
threaten to close if the Union came in, when he spoke to the
employees on March 27, 1990. Additionally Mark Lomen
testified that Mark Stimmel did not say anything about the
Company closing or going out of business during his address
during that March 27 meeting. Russell Roberts testified that
Stimmel said pretty much the same as Klingbeil when he
spoke on March 27. In view of that testimony which I credit,
I am unable to find that either Klingbeil or Stimmel threat-
ened the employees that it would be futile to select the
Union or that Respondent would close if the Union came in,
during their addresses to the employees on March 27, 1990.
As shown above Paul Goldman testified that he did not recall
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
2 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
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.’’
whether Klingbeil or Stimmel made the statements which he
testified were made on March 27. However, Goldman testi-
fied that one of the two did make the statements. I do not
credit Goldman in that regard.
I find that the evidence does not show that any statements
were made which constitute violations of Section 8(a)(1) dur-
ing Respondent’s March 27, 1990 meeting with its employ-
ees.
CONCLUSIONS OF LAW
1. Seminole Fire Protection, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Sprinklerfitters United Association, Local 821, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, by coercively interrogating its employees
about their union activities, engaged in conduct violative of
Section 8(a)(1) of the Act.
4. Respondent, by discharging its employees Gregory Ben-
nett and Tyler Hughes because of its employees’ activities on
behalf of Sprinklerfitters United Association, Local 821,
AFL–CIO has violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally discharged its
employees Gregory Bennett and Tyler Hughes in violation of
Sections of the Act, I shall order Respondent to offer Bennett
and Hughes immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges. I further order Respondent to
make Bennett and Hughes whole for any loss of earnings
they suffered as a result of the discrimination against them
and that Respondent remove from its records any reference
to the unlawful actions against its employees Bennett and
Hughes and notify each of those employees in writing that
Respondent’s unlawful conduct will not be used as a basis
for further personnel action. Backpay shall be computed as
described in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as described in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Seminole Fire Protection, Inc., Popka,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities.
(b) Discharging its employees because of their protected
activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Gregory Bennett and Tyler Hughes 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 any other rights or privileges
previously enjoyed, and make Bennett and Hughes whole for
any loss of earnings plus interest, they suffered by reason of
its illegal actions.
(b) Rescind its discharge of employees Bennett and
Hughes, and remove from its files any reference to its illegal
actions and notify each of those employees in writing that
this has been done and that evidence of its unlawful actions
will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Apopka, Florida, copies of the at-
tached notice.2 Copies of the notice, on forms provided by
the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be post by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Responndent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relationc Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 act together for other mutual aid or protection
597SEMINOLE FIRE PROTECTION
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate our employees about
their activities on behalf of Sprinklerfitters United Associa-
tion, Local 821, AFL–CIO or any other labor organization.
WE WILL NOT discharge our employees because they en-
gage in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our you in the exercise of the rights guar-
anteed you by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to Greg-
ory Bennett and Tyler Hughes to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges.
WE WILL make Gregory Bennett and Tyler Hughes whole
for any loss of earnings they suffered by reason of our dis-
crimination against them with interest.
WE WILL rescind the discharges of Gregory Bennett and
Tyler Hughes.
WE WILL notify Gregory Bennett and Tyler Hughes, in
writing, that we have rescinded their discharges and that we
will not use those actions against them in any manner.
SEMINOLE FIRE PROTECTION, INC.