Sullivan Electric Co.

National Labor Relations Board - Board Decisions

Oct 18, 1972

199 N.L.R.B. 809 (N.L.R.B. 1972)

SULLIVAN ELECTRIC COMPANY
Sullivan Electric Company and Local 1701 , Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO. Case 9-CA-5887
October 18, 1972
DECISION AND ORDER
On April 14, 1971, Trial Examiner Thomas S.
Wilson issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order as modified below.
Like the Trial Examiner, we find that the Re-
spondent violated Section 8(a)(5) of the Act by refus-
ing to recognize and bargain with the Union. We do
so, however, on grounds different from those relied
upon by the Trial Examiner.'
The facts upon which we base our findings are
summarized below.
The Respondent operates as an electricial sub-
contractor in the building and construction industry,
with its principal office and place of business in Nash-
ville, Tennessee. It employs approximately 16 electri-
cians at its Madisonville, Kentucky, jobsite, the only
jobsite involved in the instant case , under contract
with Hardaway Construction Company.
Union organization of the Respondent's Mad-
isonville employees began early in October 1970, after
an employee delegation approached Dewey Van Win-
kle, business agent of Local 1701, International
Brotherhood of Electrical Workers, AFL-CIO, here-
inafter called the Union. Acting upon Van Winkle's
advice, 13 of the 16 Madisonville employees signed
authorization cards designating the Union as their
representative for the purposes of collective bargain-
ing.
On October 8, Van Winkle visited the Madison-
1 The Trial Examiner, citing this Board 's Decision in Arthur F. Derse, Sr,
President, and Wilder Mfg. Co, Inc, 185 NLRB No. 76, reversed on remand
198 NLRB No 123, found that the Respondent knew that a majority of its
employees in an appropriate unit had authorized the Union to represent them
for the purposes of collective bargaining and accordingly had violated Sec
8(aX5) of the Act by refusing to bargain with the Union when requested to
do so.
We have since had occasion to reexamine the principles underlying our
Wilder decision . As a result , we held , in Linden Lumber Division, Summer &
Co, 190 NLRB No 116, that an employer does not run afoul of the Act solely
by refusing to accept evidence of majority status other than the results of a
Board election , unless the parties had previously agreed upon a mutually
acceptable and legally permissible alternative means of ascertaining such
status Member Fanning dissented in Linden Lumber He concurs in the
decision in this case on the basis of the principles set forth in his dissenting
opinions in that case, and in Wilder Mfg. Co., Inc, 198 NLRB No 123, and
on the basis of the Nation -Wide Plastics decision, infra
809
ville jobsite and met with William Davis, the
Respondent's superintendent. Van Winkle informed
Davis that the Union represented a majority of the
Respondent's Madisonville employees and demanded
recognition as their bargaining agent. Davis voiced
surprise and doubt as to the claimed majority status
because he "hadn't heard anything about any union
activity on the job whatsoever." Van Winkle repeated
the demand, showed Davis the authorization cards,
and offered to have the signatures checked by a third
party. Davis rejected the offer and informed Van
Winkle that he would have to take the matter up with
Jimmy Sullivan, a partner in the Respondent's Nash-
ville office. Van Winkle replied, "they will have to
come to see us, we won't go to them," and threatened
to strike the next morning if he did not hear from the
Respondent later in the day.
After Van Winkle left, Davis telephoned Sullivan
and informed him of the meeting with Van Winkle.
Sullivan suggested that they "wait until morning and
see what happens."
Meanwhile, on the afternoon of October 8, Davis
distributed paychecks to the jobsite employees. As he
did so, he asked a number of them, constituting a
majority of the Madisonville employees, whether or
not they had signed cards designating the Union as
their collective-bargaining representative. In each
case he received an affirmative answer.'
The following morning , October 9, all but 3 of
the Respondent's 16 employees went out on strike in
support of the Union's demand for recognition. Davis
advised Sullivan of these events. Later that same day,
the Respondent sent a letter to each of the striking
employees directing them to report to work by Octo-
ber 13, or be replaced. On October 27, the Union
made an unconditional application for reinstatement
on behalf of the 13 striking employees. The Respon-
dent rejected the Union's offer on the grounds that it
had hired permanent replacements. None of the strik-
ing employees were subsequently rehired.
Based on the foregoing, we find that the Respon-
dent violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union.
Concededly, an employer is not required by the
Act to recognize and bargain with a union wholly
upon the strength of its assertion that it represents a
majority of the employees involved, notwithstanding
that the union predicates its assertion upon an
adequate showing of signed authorization cards' In
2 Davis admitted that he made seven such inquiries and received seven
affirmative answers . The Trial Examiner credited additional testimony that
Davis had asked four other employees and had been given affirmative an-
swers Thus , by the close of work on October 8, the Trial Examiner concluded
that the Respondent knew that at least I i of its 16 employees on the job had
signed cards authorizing the Union to represent them for the purposes of
collective bargaining
3 Linden Lumber Division, supra
199 NLRB No. 97
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this respect, we have held that an employer may, in
the face of a union demand for recognition, insist that
a question concerning representation be resolved by
means of a Board-conducted election , absent agree-
ment between the parties on an alternative means for
resolving the question or misconduct on the part of an
employer which is of such a character as to have a
lingering and distorting effect on any future election.
However, where, as in this case, the Respondent
rejects the foregoing alternatives and unilaterally un-
dertakes to determine the Union's majority or minori-
ty status by means of a poll, under conditions of his
own choosing, the Respondent cannot thereafter dis-
claim the results simply because it finds them distaste-
fu14 Here the Respondent interrogated 11 out of 16
unit employees, asking each employee if he had signed
an authorization card designating the Union as his
collective-bargaining agent. In each case, the Respon-
dent received an affirmative reply. There can be no
doubt concerning the employees' preference thus ex-
pressed under circumstances much less favorable
than those prevailing in a Board-conducted election.
We have long held that where an employer undertakes
a determination which he could have insisted be made
by the Board, he may not thereafter repudiate the
route that he himself had selected.'
In sum , it is abundantly clear that the
Respondent's employees voluntarily and freely desig-
nated the Union as their representative for the pur-
poses of collective bargaining; that the Union made
a clear and proper demand for recognition, a demand
which was communicated to and considered by re-
sponsible officials of the Respondent; and that the
Respondent assured itself through interrogation of its
employees that a substantial majority of them had
designated the Union as their representative. These
circumstances give rise to a bargaining obligation.
Accordingly, we find that the Respondent violated
the Act by refusing to recognize and bargain with the
Union and we shall adopt the Trial Examiner's rec-
ommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Sullivan Electric
Company, Nashville, Tennessee, its officers, agents,
4 Nation-Wide Plastics Co, Inc, 197 NLRB No 136
5 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB
709.
6A fortiori, employees who were replaced after striking in support of the
Union's demand for recognition and bargaining were unfair labor practice
strikers and are entitled to reinstatement to their former jobs
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as mod-
ified.'
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act."
2. Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs accordingly:
"(d) Notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act."
3. Substitute the attached notice for the Trial
Examiner's notice.
MEMBER KENNEDY , dissenting:
Contrary to my colleagues, I would dismiss the
complaint herein in its entirety.
The Respondent denied allegations of the com-
plaint with respect to the unit claimed to be appropri-
ate. I find insufficient evidence in the record in this
case to establish the appropriateness of the unit alleg-
ed. So far as I am aware, the Board has not promulgat-
ed any general guidelines with respect to unit
determinations in the building and construction in-
dustry.8 Generally, collective bargaining in the con-
struction industry has not been conducted on an
individual project basis. The record establishes that
Respondent averages 100 employees on its various
projects in Georgia, Tennessee, and Kentucky. It'has
a regular work force of full-time individuals whom it
employs "pretty much the year around" and it also
employs "as much as possible" men from the local
areas where its projects are located. Except for this
sketchy, limited information, I can find no evidence
herein which would provide assistance to us in de-
termining whether the bargaining unit should encom-
pass a single project, a geographic area, or all
nonsupervisory employees of Respondent.' I find
7 Among other things, we shall provide for a broad remedial order, as
recommended by the Trial Examiner and inadvertently omitted by him
9 The unique problems of the construction industry prompted Congress to
enact special provisions with respect to it in 1959 . Sec. 8(f) of the Act legalizes
bargaining agreements in the construction industry without the union's ma-
jority status having been established. It also permits union shop provisions
to take effect within 7 days of hiring
v The Trial Examiner noted that Superintendent Davis voiced no objection
to the project unit on October 8 The failure of Davis to object is of no
consequence in my judgment , however, since Davis advised the union repre-
sentatives that they would have to talk to either "Mr Hall Hardaway or Mr.
Sullivan in Nashville to do any bargaining"
Much of the Trial Examiner 's discussion under "The appropriate unit"
heading relates to his finding that Foreman Hudson was not a supervisor. I
disagree Hudson interviewed some of the applicants for employment and he
gave his opinions to the superintendent since he knew a lot of the applicants
He granted time off to employees when the superintendent was not around
Foreman Hudson testified that he had " independent authority" to direct the
men as far as what they were to do and how they were to do it It is clear
that Superintendent Davis conferred with Hudson in the construction trailer
SULLIVAN ELECTRIC COMPANY 811
merit in the Respondent's contention that there is a
"failure of proof" as to the alleged appropriate unit.
Accordingly, the refusal-to-bargain allegation should
be dismissed and the strike for recognition held not to
be an unfair labor practice strike.
In my view, Snow & Sons, 134 NLRB 709, cited
by the majority, is not relevant to the instant case
since the Respondent and the Union never agreed
upon a means for resolving the issue of majority sta-
tus. As the Trial Examiner correctly found, Respon-
dent rejected the Union's offer to have the cards
checked by a third party. Linden Lumber Division,
Summer & Co., 190 NLRB No. 116, controls our deci-
sion here, in my judgment, and requires dismissal of
the complaint herein. My colleagues make no findings
of independent 8(a)(1) violations of the Act. Absent
findings of unfair labor practices which cannot be
erased by the use of traditional remedies, I do not
believe bargaining orders are appropriate. N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575.
as to the progress of the job and what work was to be done that day but he
left up to Hudson the details of getting the work done . Hudson was more than
a mere conduit for transmitting Davis' instructions to employees . I would
find him to be a supervisor
gether with interest thereon at 6 percent per an-
num. These striking employees are:
Phillip Dillingham Donald G. Ramsey
Peter Froehle Ronald G. Reynolds
Robert P. Gordon Jerome Riggs
Elivs Holt Terry B. Stevens
Ollie A. Hudson Bobby G. Thomason
Jack W. King Robert D. McKensie
Lloyd Tompkins
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist Local 1701, International
Brotherhood of Electrical Workers, AFL-CIO,
or any other labor organization of their choice, to
bargain collectively through a bargaining agent
chosen by our employees, to engage in concerted
activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to re-
frain from any such activities.
Dated By
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL , upon request, recognize and bar-
gain collectively in good faith with Local 1701,
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit set forth below
with respect to rates of pay , wages, hours of em-
ployment , and other terms and conditions of em-
ployment and , if an agreement is reached, WE
WILL embody the same in a written , signed agree-
ment . The appropriate unit is as follows:
All employees of Respondent, employed
at the General Electric Construction site at
Madisonville , Kentucky , exclusive of office
clerical employees , professional employees,
guards , and supervisors as defined in the Act.
WE WILL offer to each of the 13 unfair labor
practice strikers named below his former job or,
if that job no longer exists , a substantially equiva-
lent position , without prejudice to his seniority or
other rights and privileges , and WE WILL pay each
of them for any loss of pay he may have suffered
by reason of our discrimination against him to-
SULLIVAN ELECTRIC COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if. presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to' the
Board's Office, Room 2407, Federal Office Building,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILsoN, Trial Examiner: Upon a charge duly
filed on October 15, 1970, and amended on November 2,
1970, by Local 1701, International Brotherhood of Elec-
trical Workers, AFL-CIO, hereinafter called the Union or
the Charging Party, the General Counsel of the National
Labor Relations Board, herein referred to as the General
Counsel I and the Board, respectively, by the Regional Di-
1 This term specifically includes the attorney appearing for the General
Counsel at the hearing
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector for Region 9, Cincinnati, Ohio, issued its complaint
dated December 4, 1970, against Sullivan Electric Compa-
ny, herein referred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Labor-Management Relations
Act, 1947, as amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain alle-
gations of the complaint but denying the commission of any
unfair labor practices.
Pursuant to notice a hearing thereon was held before
me in Madisonville , Kentucky, on February 10, 1971. All
parties appeared at the hearing, were represented by counsel
or representative, and were afforded full opportunity to be
heard, to produce and cross-examine witnesses, and to in-
troduce evidence material and pertinent to the issues. At the
conclusion of the hearing, oral argument was waived. Briefs
were received from General Counsel and Respondent on
March 3, 1971. Upon the entire record in the case and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Sullivan Electric Company, a partnership with offices
located in Nashville, Tennessee, is engaged in the business
of electrical contracting. During the past 12 months, which
is a representative period, Respondent performed services
for customers outside the State of Tennessee valued in ex-
cess of $50,000 and performed services for all customers
exceeding $500,000.
Sullivan Electric Company is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE UNION INVOLVED
Local 1701, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization admitting to
membership employees of Respondent.
III THE UNFAIR LABOR PRACTICES
A. The Facts
Sullivan Electric Company, a partnership, has a num-
ber of electrical subcontracts on construction projects in
Tennessee and neighboring States, including the project in
Madisonville, Kentucky, which is the only such project in-
volved here. Respondent has, in the words of one partner,
Jimmy Sullivan, "never had an agreement with IBEW of
any sort," never "knowingly to me" employed any men
from IBEW, nor, "run a so called union fob."
The project involved here in which Respondent was the
electrical subcontractor was the General Electnc Company
Ballast Manufacturing Plant at Madisonville, Kentucky,
where the general contractor, Hardaway Construction
Company, Inc., was also a nonunion contractor.
At the time material here, October 1970, Respondent
employed 17 nonunion electricians on this Madisonville
project.
Due to some gripes like low wages, lack of water, poor
toilet facilities, etc., the electricians sent a delegation to see
Dewey Van Winkle, business agent of Local 1701, who gave
them authorization cards to get signed. Prior to October 8,
1970, 13 of Respondent's employees had signed such unam-
biguous authorization cards which had been returned to
Van Winkle.2
On October 8 Van Winkle, accompanied by IBEW
International Representative Charles Goidel, drive to the
jobsite. They located William Davis, Respondent's superin-
tendent on the job, where, after introducing themselves,
Van Winkle informed Davis that he represented a majority
of Respondent's employees and requested recognition and
bargaining.3 Davis expressed surprise and doubt about the
majority on the ground that he, Davis, had seen no union
activity.
At Davis' suggestion the men then repaired to the con-
struction trailer of the Hardaway Company where Davis
had a desk. After Van Winkle and Goidel had been intro-
duced to Winston Butrey, superintendent for the general
contractor, who was in the trailer, Van Winkle reiterated
that he had a majority of Respondent's employees signed up
and requested Respondent to recognize IBEW and bargain
with it. Davis reiterated his doubt of a majority because, "I
didn't believe it because I hadn't heard anything about any
union activity on the job whatsoever." Van Winkle thereup-
on took the signed cards out of his pocket and offered to
have some third person in Madisonville check the signatures
thereon against W-2 forms in order to prove his claim of
majority. This offer Davis rejected. Butrey spoke up and
told Van Winkle that they "would have to go to Nashville
to see Mr. Hall Hardaway or Mr. Sullivan in Nashville to
do any bargaining," a statement which Davis apparently
repeated. Van Winkle answered, "Well, they will have to
come see us, we won't go to them" and threatened a strike
the next morning. Van Winkle stated that he would return
to his headquarters in Owensboro and would expect a call
from Respondent or he would have the men on strike the
next morning.4 This conference ended up with Davis telling
Van Winkle that the Union could only get recognition and
bargaining from the Sullivans at their headquarters in Nash-
ville and Van Winkle repeating that he did not like the way
2 These employees personally authenticated their signatures on these cards
at the hearing
3 Davis testified that Van Winkle told him that "a certain amount of my
men" had signed cards but admitted he requested recognition and bargamn-
inn
There was a dispute in the evidence as to whether Davis told Van Winkle
that he, Davis, had no authority to recognize or bargain with the Union or
whether, as Van Winkle claimed, Davis said that he had authority to hire and
fire and to sign contracts Under the circumstances of this case this dispute
is unimportant and need not be resolved here, although it was admitted that
Davis did have authority to hire and fire and to sign contracts, albeit limited
in dollar amounts
SULLIVAN ELECTRIC COMPANY 813
Sullivan did anything he "damned pleased" in Kentucky
and that Sullivan would have to come to him with the state-
ment that "you will either negotiate with us or we will strike
you in the morning." Butrey stated that he was not afraid
of a strike.5
Van Winkle and Goidel then left the office and started
for their automobile. Butrey and Davis both shouted warn-
ings that they were not to go back into the plant. Then, just
to be "aggravating" and "shake them up," Van Winkle
drove around the jobsite for a time and departed only for
fear that the police had been called.
A few minutes after the union representatives departed,
Davis telephoned Jimmy Sullivan, a partner, in Nashville
and reported the visit of the union representatives, their
mission, and their threat to strike the job the next morning.
According to the testimony of both Sullivan and Davis,
there was no discussion in that telephone call regarding the
Union's claim of majority. Sullivan suggested that they
"wait until in the morning and see what happens."
That afternoon about 3 p.m. Davis passed out the pay-
checks to the employees at their work stations in the plant.
As he did so he asked each employee as to whether he had
signed a union card and in each case received an affirmative
answer.6
Before work on the morning of October 9 Respondent's
employees held a meeting in the parking lot located about
200 feet from the construction trailer, heard a report from
Van Winkle that Respondent had refused to recognize
them, and decided to strike. Only 3 of Respondent's 16
employees reported and went to work on October 9. This
fact was duly communicated by Davis to Sullivan in Nash-
ville.
Pickets carrying the following signs have picketed the
jobsite from that day at least until the date of the hearing,
February 10, 1971:
LOCAL UNION 1701
IBEW AFL-CIO
ON STRIKE
AGAINST
Sullivan Electric Co.
This is an information picket
All this was duly reported to Jimmy Sullivan in Nash-
ville by Davis in conversations over the telephone in which,
according to each of the witnesses, nothing ever was said
about the Union's majority except that Davis did report that
two of the strikers had picked up their tools and said they
wanted nothing to do with the Union. The men, however,
did not go back to work.
On October 9 Respondent sent each of the striking
employees the following letter:
Gentlemen:
This morning, prior to the time that you were scheduled
5 Butrey had little to fear There was on the project only one craft union
and that one with only two employees.
6 Davis admitted during his testimony that he made seven such inquiries
and received seven affirmative answers but testified that he was not sure that
he asked anyone else There was undisputed testimony at the hearing from
four other employees that Davis had, in fact , inquired of each of them as to
whether he had signed a union card and again received an affirmative re-
sponse in each instance . Hence, by the close of the working day on October
8, Respondent knew that at least II of its 16 employees on the job had
authorized the Union to represent them.
to begin work on the General Electric Company's Bal-
last Manufacturing Plant being constructed by Sulli-
van Electric Company in Madisonville, Kentucky, you
were seen in the presence of a group of your fellow
workers of the parking lot at the job site engaged in
some type of discussion.7 When the scheduled hour for
the commencement of work arrived, you and your fel-
low workers failed, neglected, or refused to begin work
as scheduled and, instead, left the job site and did not
report for work further during the day.
Although the National Labor Relations Act affords
you the right to engage in concerted activities, includ-
ing strikes, it also allows Sullivan Electric Company to
continue to operate its business and to complete this
project. Sullivan Electric Company intends to do this
as expeditiously as possible.
You are hereby instructed to return to work at 7:00
A.M. on Tuesday, October 13, 1970. If you have not
returned to work by 7:00 A.M. on Tuesday October 13,
Sullivan Electric Company will endeavor to hire other
employees to replace you to complete this project. If
and when another employee is hired to replace you on
this project, you will be notified.
Jimmy H. Sullivan, Partner
On Saturday, October 9, Hardaway's project manager
in Nashville delivered the following letter to Respondent:
In accordance with Article 7, Section 1, of Subcontract
Agreement dated April 6, 1970 for the above project,
we hereby notify your firm that unless sufficient work-
men are on the project by 8:00 A.M. Tuesday, October
13, 1970 and continue to work until project is complete,
we will be forced to terminate this subcontract. If the
project is not continually manned until completion, the
subcontract will automatically be terminated.
Please acknowledge receipt of this letter by return mail.
On October 13, Respondent transferred five of its elec-
tricians from other projects to work on the Madisonville
project and continued such transfers of electricians from
other projects until the complement of 16 or 17 electricians
at Madisonville was filled.
By telegram dated October 27 the Union made uncon-
ditional application for reinstatement for the 13 striking
employees of Respondent.
On October 15 the Union filed its original charge in this
case.
By letter dated October 29, over the signature of
Respondent's counsel, Respondent answered the aforemen-
tioned unconditional application for reinstatement as fol-
lows:
I am counsel for Sullivan Electric Company of
Nashville, Tennessee which has received your telegram
of October 27, 1970 in which you asked for uncondi-
tional reinstatement for thirteen employees.
As you know, all of these employees were advised
by letter to report for work on or before 7:00 a.m. on
Tuesday, October 13, 1970. If these employees failed to
report by the date and time specified, Sullivan Electric
Company notified them that it intended to seek re-
placements. None of the thirteen named individuals
7 In his testimony Davis claimed to have been unable to distinguish which
employees were in the parking lot due to the distance and bad weather
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported for work at the appointed hour , and Sullivan
Electric Company , in accordance with the communica-
tion addressed to the employees , has hired permanent
replacements for them . As of this date , all of the posi-
tions formerly held by the thirteen employees specified
in your telegram have been filled with permanent re-
placements . For these reasons , there are no positions to
be filled at this time.
Sullivan Electric Company , however , does have
other openings available at other construction sites and
would be pleased to discuss these job opportunities
with any of the thirteen individuals mentioned in your
telegram if they will contact the Company office in
Nashville on or before Friday, November 6, 1970.
Respondent was still engaged in operations at the Mad-
isonville project as of February 10, 1971, although with a
reduced complement of employees . It reinstated none of the
strikers.
authenticated by the signers in person at the hearing. On
neither of these points does Respondent make any conten-
tion to the contrary. Accordingly, I find the majority to have
been well established in the evidence.
c. The demand
There is, and can be here , no question but that on
October 8 the Union in the person of Dewey Van Winkle
and Charles Goidel at the Madisonville jobsite demanded
recognition from and collective bargaining with the Re-
spondent from Respondent 's superintendent on the job,
Davis.
Respondent 's answer admits the making of this request
but in its brief contends that its superintendent , Davis, had
no authority in the premises . That will be discussed infra.
B. Conclusions
1. Refusal to bargain
a. The appropriate unit
The facts here show that Respondent had a comple-
ment of 16 employees , exclusive of Superintendent William
Davis, working at its General Electric project at Madison-
ville on October 8. These 16 employees were performing
electrical work throughout the project under the orders of
Superintendent Davis who sometimes used employee Ollie
Hudson as a conduit to transmit instructions to the other
employees . Davis, as superintendent , admittedly had the
authority to hire and fire and to sign contracts on behalf of
Respondent , although his authority in this last respect was,
according to the Respondent 's testimony , restricted. Hud-
son had no authority to hire or fire and when transferring
men around the project was merely acting as the conduit for
Davis ' orders. Under these circumstances it is found that
Davis is a supervisor within the meaning of the Act but that
Hudson was not.
Accordingly , I hereby find that all Respondent's em-
ployees, excepting Superintendent William Davis , working
at the jobsite at Madisonville constituted an appropriate
unit for the purposes of collective bargaining.
On October 8 Respondent's superintendent indicated
no objection to the appropriateness of the above -found unit.
Respondent 's answer denied the appropriateness of the unit
on "lack of knowledge ." But Respondent's brief claims that
there is a "failure of proof" because General Counsel failed
to prove the appropriateness of the unit . This last conten-
tion is without merit.
b. Majority
There is, and can be here, no question as to the majori-
ty representation of the Union because 13 employees out of
a complement of 16 (Superintendent William Davis being
the 17 man on the payroll) had on or before October 8
designated the Union as their representative for collective
bargaining with Respondent by signing unambiguous desig-
nations . The signatures on these authorization cards were
d. The refusal
Respondent 's answer admits that Respondent refused
to recognize and bargain with the Union as the exclusive
bargaining representative of Respondent 's employees. This
refusal is also conclusively proved by the testimony ad-
duced here.
e. Respondent's defenses
Respondent defends against the above -found prima
facie case of a violation of Section 8(a)(5) on two grounds:
(1) its job superintendent had no authority in the premises;
and (2) the Company had no proof of the Union 's majority
representation.
Respondent 's answer admits that the Union made a
demand for recognition and bargaining on October 8 but in
its brief Respondent claims that William Davis, its job su-
perintendent , to whom the demand was made , was in fact
without authority in the premises.
The fact , however , is that Davis was Respondent's one
and only responsible representative at the jobsite. He was
the Respondent at the job in question . There was no one
else. He had the apparent authority at least. Any limitations
on that authority were secret.
There is a dispute in the testimony as to exactly what
authority Davis stated he had at the time the demand was
made upon him. Assuming for the purposes of this case that
Davis had been given no authority to bargain on behalf of
Respondent , still, when the Union made its demand upon
the Respondent 's sole responsible representative at the
project, it became his responsibility , in the absence of au-
thority to handle the demand himself, to promptly notify
the proper official of Respondent having the requisite au-
thority of the Union 's demand so that that demand could
be acted upon promptly.
But Respondent's brief indicates that it believes that,
the Union having made a demand for recognition and bar-
gaining upon a company representative with no authority to
handle collective bargaining, the demand so made became
a nullity and void as though never made at all.
This cannot be the law . If it is , then an employer could
SULLIVAN ELECTRIC COMPANY 815
secretly limit the authority of all its officials so as to omit
the authority to bargain collectively from their responsibili-
ties and thus thwart the statutory duty to bargain entirely.
Or it could accomplish the same result by appointing some
obscure individual living in Timbuktu as its sole authorized
agent for collective bargaining and then defy the Union to
locate him so as to create the necessity for collective bar-
gaining. Absurd though it seems, this appears to be
Respondent's argument. Under the circumstances existing
here it was not incumbent upon the Union to search out the
Employer's representative having authority to bargain col-
lectively in order to make its demand for collective bargain-
ing. However once the demand was made on Davis,
Respondent's sole responsible official on the project, it be-
came incumbent upon him to notify an authorized official
of the demand and for that official to answer the Union's
request.
Hence, if Davis had done nothing further beyond in-
forming the Union that he had no authority therein and that
they would have to go to company headquarters in Nash-
ville to start collective bargaining, that would have consti-
tuted a refusal to bargain.
However Davis did more. Thirty or forty minutes after
the Union had departed the jobsite after making its de-
mand, Davis admittedly telephoned Jimmy Sullivan, one of
Respondent's owners and thus a representative with author-
ity, and reported to him not only the Union's demand for
recognition and bargaining, but also the threat made of a
strike the following morning unless that demand was grant-
ed. Hence the Union's demand for bargaining was in fact
communicated within 30-40 minutes to an individual au-
thorized to conduct collective bargaining on behalf of Re-
spondent. Hence, even under Respondent's theory, the
authorized representative of Respondent was in fact noti-
fied of the Union's demand for recognition and bargaining,
albeit 30-40 minutes after that demand had been made.
Sullivan failed to communicate with the Union or to other-
wise respond to the Union's request. This amounts to a
refusal to bargain.
According to the only testimony available, that of Da-
vis and Sullivan, Sullivan's only answer in the above tele-
phone call was, "Let's wait and see what happens in the
morning." So Respondent waited for the morning. In the
morning 13 of Respondent's 16 employees went on strike
protesting Respondent's refusal to negotiate.
Thereafter Sullivan did nothing but transfer employees
from other projects to "replace" the striking employees.
Sullivan made no effort to get in touch with the Union. His
answer to Davis combined with his actions related here
constitutes a refusal of the Union's demand.
In its brief, however, Respondent contends that Gener-
al Counsel failed to establish that Respondent "knew that
a majority of its employees [had] selected the Union to
represent them."
It is quite true that at the time when the Union first
made its demand for recognition and bargaining, Davis told
the union representatives that he did not believe them be-
cause he had not seen any union activity among the union
employees. This "disbelief" is based on a very tenuous foot-
ing. But it is the only footing Respondent has here.
Van Winkle at that time of the demand pulled the
signed authorization cards from his pocket and offered to
submit them to a neutral third party, a minister, preacher,
or rabbi, for authentication against the-signed W-2 forms
in Respondent's possession so as to "count the votes." This
Davis refused-with or without authority.8
According to the only witnesses available, Davis and
Sullivan, there was no discussion during their telephone call
30 or 40 minutes after the departure of the union representa-
tives about the question of the Union's claim of majority
representation. This testimony is so contrary to the proba-
bilities of the situation as to be unbelievable. This is particu-
larly so as Davis and Sullivan also testified that on the
following day during the strike Davis did report to Sullivan
that two of the employees had come in to pick up their tools
but had said that they wanted nothing to do with the Union.
This report together with the fact that 13 of the 16 employ-
ees had refused to report for work would go far to convince
any reasonable man that the Union did represent a tfiajority
of the employees.
Nor, according to Davis and Sullivan, did Davis ever
report to Sullivan the results of the poll of the employees he
took while distributing the paychecks to them on October
8 subsequent to his first telephone conversation with Sulli-
van on the matter. Davis' admission of having polled seven
employees, combined with the undenied, and credited, testi-
mony of four other employees that they not only were
polled on the question of whether they had signed union
cards but also that their affirmative responses were recorded-
on paper by Davis, proves that Davis, and hence Respon-
dent, knew that at least 11 out of Respondent's 16 employ-
ees had signed union cards.
The result of the above-cited facts is that Respondent
(1) refused the Union's offer to permit a third party to check
the authenticity of the signatures on the union authorization
cards and to "count the votes"; (2) had polled its employees
on October 8 as to whether they had in fact authorized the
Union to act as their bargaining representative and learned
beyond preadventure of a doubt that a large majority of the
employees had in fact so authorized the Union; and (3)
received hard corroborative evidence as to that majority on
October 9 when 13 out of 16 employees remained away
from work in support of the Union's demand for recogni-
tion and bargaining. These cold, hard facts removed the
tenuous grounds of Respondent's alleged "disbelief" based
on not having seen any union activity on the project. This
is particularly so as Respondent never took the legal course
open to it to dispel any and all doubts on the subject of
majority; to wit, file an employer's petition with the Board.
As a matter of fact under the facts cited above Respon-
dent could not even make a serious contention that it had
any doubt that the Union enjoyed majority representation
among Respondent's employees on the Madisonville project.
Nor could Respondent even legitimately claim to have
deliberately closed its eyes to the proof of majority because,
through Davis, it intentionally and deliberately polled its
own employees and conclusively proved to itself by its own
8 Davis testified that Van Winkle brought out of his pocket one blank card,
which Davis refused to look at. However, Davis did acknowledge that Van
Winkle offered to have the signed authorization cards checked for authentici-
ty against Respondent's W-2 forms and admitted that he rejected the idea
On this conflict, if any, I must credit Van Winkle
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities that there was no doubt but that the Union had
majority representation.
As to this last fact Respondent could only make its
contention of lack of knowledge if Davis' knowledge re-
garding the poll he took could not be imputed to Respon-
dent and if Davis did not communicate those findings to
Sullivan. Strangely enough that is just what the testimony
of both Davis and Sullivan proved to be. Even
Respondent's attorney by a question sought to bring himself
under that same protective umbrella. Such lack of commu-
nication by and between Respondent's officials could only
be intentional or untrue. I am inclined to believe the latter
because the testimony of Davis and Sullivan stretches cre-
dulity beyond the breaking point. If, perchance, such igno-
rance was a fact, it could only be intentional and hence no
defense here either. A man cannot intentionally shut his
eyes, ears, and mouth and then defend on the grounds of
lack of knowledge.
In recent case of N.L.R.B. v. Regal Aluminum, Inc.,9 the
Eight Circuit Court of Appeals speaking through Judge Lay
succinctly put Respondent's argument here to rest as fol-
lows:
First, the company urges that it had no knowledge of
the bargaining demand of IAM claiming to represent
the majority of the employees. The basis of this asser-
tion is that the company returned unopened the de-
mand letters of the union. We find this argument to be
specious. The surrounding facts and circumstances
strongly suggest that the company president was fully
aware that IAM was prepared to make a demand to
bargain as the employees' representative. Prior to refus-
ing the letter Richardson was well aware of the distn-
bution of the cards and had previously discussed a
collective bargaining relationship with union officials.
Moreover, the company cannot hide behind its own self-
constructed wall of obstinance and thereby use its igno-
rance as a shield. The National Labor Relations Act
only contemplates that the union make a demand to be
recognized. The duty created is to use reasonable
means to make the demand known to the company.
Under a statute requiring cooperative attitudes to
achieve industrial peace, common sense dictates that
artificial devices created by the company to avoid
knowledge of that demand cannot succeed. Upon its
refusal to accept the union's letters the company acted
at its own peril as to the contents of the letters. As Mr.
Justice Clifford early observed:
"[I]t is well-settled law that a party to a trans-
action, where his rights are liable to be injuriously
affected by notice, cannot wilfully shut his eyes to
the means of knowledge which he knows are at hand,
and thereby escape the consequences which would
flow from the notice if it had actually been received
...." The Lulu. 10 Wall. 192, 201, 77 U.S. 192, 201,
19 L.Ed. 906 (1869). [Emphasis supplied.]
On a number of other matters Davis clearly testified in
utter disregard for the truth. Sullivan's testimony proved
that he was not much better. In short I cannot credit the
testimony of either.
9 436 F.2d 525.
The facts prove, and I therefore find, that Respondent
knew without question on and after October 8, 1970, that
the large majority of its employees in the appropriate unit
had authorized the Union to represent them in collective
bargaining with Respondent.
In the almost identical case of Arthur Derse, Sr., Presi-
dent, Wilder Mfg. Co., Inc., 185 NLRB No. 76, the Board not
only decided all Respondent's arguments made and referred
to -here adversely to Respondent but also the 8(b)(7)(C)
argument Respondent raises here obviously forgetting in its
argument that in this case, like Wilder, the Union filed a
meritorious 8(a)(5) charge within a reasonable time.
Accordingly, I therefore find that on and at all times
after October 8, 1970, Respondent refused to bargain collec-
tively with the Union as the exclusive representative of its
employees in the appropriate unit at the Madisonville
project in violation of Section 8(a)(1) and (5) of the Act.10
As the 13 employees went out on strike to protest
Respondent's refusal to bargain, this strike was an unfair
labor practice strike. Consequently, as unfair labor practice
strikers, the striking employees were entitled to rein-
statement to their former positions upon their uncondition-
al request for reinstatement made on October 27, 1970. As
unfair labor practice strikers Respondent was not entitled
to "permanently replace" them and refuse them rein-
statement after their unconditional request therefor.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
mg and obstructing commerce and the free flow of com-
merce.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent has refused to bargain
on October 8, 1970, and thereafter in good faith with the
Union as the exclusive representative of Respondent's em-
ployees in violation of Section 8(a)(5) and (1) of the Act, I
will recommend that, upon request, Respondent bargain
collectively in good faith with the Union as such exclusive
representative of all its employees in the appropriate unit
with respect to rates of pay, hours, wages, and other terms
and conditions of employment and, if agreement is reached,
embody such understanding in a signed agreement.
Having also found that Respondent discriminated in
10 There can be no doubt but that the union officials made the requisite
demand upon Respondent. But in all candor they did little more especially
with a telephone available for a call to Respondent's Nashville office. Unfor-
tunately Van Winkle 's presumptions remark that thereafter Respondent
"would have to come to" him plus his drive around the site to "aggravate"
and "shake them up" leads to the unhappy conclusion that he was busier
inflating his own ego than in helping the employees This stoke perhaps might
have been avoided Although considering Respondent's attitude throughout,
this hardly seems likely
SULLIVAN ELECTRIC COMPANY 817
regard to the hire and tenure of employment of the 13 unfair
labor practice strikers named below by failing and refusing
to reinstate these 13 strikers upon their unconditional appli-
cation therefor on October 27, 1970, I will recommend that
Respondent offer each of them immediate and full rein-
statement to his former position or, if that job no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make
each whole for any loss of pay he may have suffered by
reason of said discrimination against him by payment to
him of a sum of money equal to that which he would have
earned from the date of the discrimination against him to
the date of his reinstatement , less his net earnings during
such period in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum. These 13 unfair labor prac-
tice strikers were:
Phillip Dillingham Donald G. Ramsey
Peter Froehle Ronald G. Reynolds
Robert P. Gordon Jerome Riggs
Elvis Holt Terry B. Stevens
Ollie A. Hudson Bobby G. Thomason
Jack W. King Robert D. McKensie
Lloyd Tompkins
Because of the variety of the unfair labor practices
engaged in by Respondent , I sense an opposition by Re-
spondent to the policies of the Act in general and I deem
it necessary to order Respondent to cease and desist from
in any manner infringing upon the rights guaranteed its
employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Sullivan Electric Company, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1701, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing on and after October 8, 1970, to bargain
in good faith with Local 1701, International Brotherhood of
Electrical Workers, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropriate unit
found below, Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act. The appropriate unit is:
All employees of Respondent, employed at the
General Electric Construction site at Madisonville,
Kentucky, exclusive of office-clerical employees, pro-
fessional employees, guards, and supervisors as defined
in the Act.
4. By discriminating in regard to the hire and tenure of
employment of the 13 unfair labor practice strikers named
above by failing and refusing to reinstate them upon their
unconditional application therefor on October 27, 1970, be-
cause of their activities on behalf of the Union and in order
to discourage such union membership and activities, Re-
spondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
5. By such actions Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act and in viola-
tion of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER "
Respondent , Sullivan Electric Company, Nashville,
Tennessee , and Madisonville , Kentucky , its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain in good faith
with the Union as the exclusive representative of
Respondent 's employees in the appropriate unit found
above.
(b) Refusing to reinstate to their former or substantially
equivalent jobs or otherwise discriminating in regard to the
hire and tenure of employment or of any term or condition
of employment of its striking employees because of their
membership in and activities on behalf of the Union herein
or any other labor organization of their choice.
(c) In any other like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request , bargain collectively in good faith
with Local 1701, International Brotherhood of Electrical
Workers, AFL-CIO , as the exclusive representative of
Respondent's employees in the appropriate unit found
above with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment and,
if an understanding is reached , embody same in a written,
signed agreement.
(b) Offer to each of the 13 unfair labor practice strikers
above-named immediate and full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges and make each whole for any loss
of pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of this
Decision entitled "The Remedy ," with interest thereon at 6
percent per annum.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records , timecards , person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
11 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes.
y_k
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at the Madisonville, Kentucky, jobsite and in
its office in Nashville, Tennessee, copies of the attached
notice marked "Appendix."12 Copies of said notice, on
forms provided by the Regional Director for Region 9, after
being duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith. 13
IT IS FURTHER RECOMMENDED that, unless the Respondent
notify said Regional Director within 20 days from the re-
ceipt hereof that it will take the action here recommended,
the Board issue an order directing Respondent to take the
action here recommended.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
13 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notify
the Regional Director for Region 9, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "