The National Heating Co.

National Labor Relations Board - Board Decisions

Sep 25, 1967

167 N.L.R.B. 534 (N.L.R.B. 1967)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The National Heating Company and Mack C. Roach
The National Heating Company and Pipe Fitters
Local Union 392 of the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, and Sheet Metal Workers International
Association , Local 141 , AFL-CIO. Cases
9-CA-3754 and 9-CA-3776 and 9-RC-6544
IT IS HEREBY FURTHER ORDERED that the elec-
tion in Case 9-RC-6544, conducted herein on
November 29, 1965, be, and it hereby is, set aside.
[Direction of Second Election omitted from
publication.]
I No exceptions having been filed to the Trial Examiner's findings of
Sec 8(a)(I) and (3) violations, such findings are hereby adopted, pro
forma
September 25, 1967
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On February 8, 1967, Trial Examiner John P.
von Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
He further recommended that the representation
election held on November 29, 1965, in Case
9-RC-6544, be set aside and a new election be
held. Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief and the Respondent filed an an-
swering brief to the General Counsel's limited ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, The National Heating
Company, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon charges,
duly filed, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 9
(Cincinnati, Ohio), issued a consolidated complaint on
December 30, 1965, against The National Heating Com-
pany, herein called the Respondent or the Company, al-
leging that it had engaged in certain unfair labor practices
affecting commerce within the meaning of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. The
Respondent's answer denies the allegations of unlawful
conduct alleged in the complaint. Consolidated with the
hearing on the above issues was a hearing with respect to
issues raised by certain objections by the Unions to con-
duct affecting the results of an election held among the
employees on November 29, 1965.1
Pursuant to notice, a hearing was held in Cincinnati,
Ohio, on September 19, 20, and 21, 1966. All parties
were represented by counsel and were afforded opportu-
nity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs have been received
from the General Counsel, the Respondent, and the
Charging Parties and they have been carefully con-
sidered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with its prin-
cipal office and place of business located in Cincinnati,
Ohio, where it is engaged as a contractor in the heating
and air conditioning business. During the 122 months
preceding the hearing herein, Respondent purchased
products and materials, valued in excess of $50,000, from
firms located within the State of Ohio, which firms, in
turn, purchased and received said products and materials
from points directly outside the State of Ohio.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Pipe Fitters Local Union 392 of the United Associa-
tion of Journeymen and Apprentices of the Plumbing and
I The election was held pursuant to a stipulation for certification upon
consent election executed by the parties on November 19, 1965, in Case
9-RC-6544
167 NLRB No. 73
NATIONAL HEATING CO.
Pipe Fitting Industry of the United States and Canada,
AFL-CIO, and Sheet Metal Workers and International
Association , Local 141, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Chronology; Interference, Restraint, and Coercion
The Respondent is a heating and air conditioning con-
tractor engaged principally in the installation of such
systems in private homes. It employs approximately 20
maintenance and production employees who are clas-
sified either as sheet metal workers or pipefitters. All but
two of the employees work out of the shop and spend
most of their time in the field. The two exceptions are
sheet metal workers who spend all of their time in the
shop where they are engaged in fabricating work and the
filling of orders. The management of the business consists
of Sheldon Braun, Sr., president, and his son, Sheldon
Braun , Jr., vice president and sales manager.
Pursuant to arrangements by employee Mack Roach,
a number of Respondent's employees in each of the
above-named job classifications attended a union meeting
held at the office of the Sheet Metal Workers Union on
July 29, 1965.2 At this meeting, which was attended by
representatives of the Sheet Metal Workers Union and
the Pipe Fitters Union, it was explained by these union
agents that the two unions would conduct a joint cam-
paign. This arrangement included the fact that the em-
ployees, along the lines of their particular craft, would
sign union authorization cards or membership application
cards either for the Sheet Metal Workers Union or the
Pipe Fitters Union. A number of employees signed cards
at this meeting and thereafter the organizational campaign
continued at the plant and other places where the em-
ployees were in contact.
On October 4, 1965, Local 392 of the Pipe Fitters and
Local 141 of the Sheet Metal Workers each filed seperate
representation petitions with Region 9 of the Board. The
former Union sought a unit of "all pipefitters" and the
latter sought a unit of "all sheet metal workers," both
with the usual exclusions.
Insofar as the record discloses, the first overt manifes-
tation of Respondent's reaction to the organizational ac-
tivity of its employees occurred at a jobsite on October
28, 1965. Kenneth Brown, a sheet metal worker who had
been employed by the Respondent for 7 years,3 testified
that as he and Braun, Sr., were about to leave the job,
Braun, Sr., asked, "What do you think about this Union
situation?" Brown said that he responded by saying that
he would like to make more money, whether the Com-
pany went union or nonunion. According to employee
Brown, President Braun thereupon asked him "how
many groups are involved in this" adding that if there
were only two or three perhaps they could be given some
money "to hush this thing up." Brown said that he told
Braun that all of the employees were involved. According
to Brown, the conversation then turned to a discussion of
other companies in the area who were operating under
union conditions. Brown said that the discussion finally
S Unless otherwise indicated , all dates hereinafter refer to 1965
3 Brown quit his employment with the Company on July 1, 1966, under
friendly terms
* Although called as a witness for the Respondent, Braun , Sr , did not
testify concerning these conversations with the employees on Novem-
ber 2
535
ended with Braun's saying, "I've got to work out
something. I've got money invested here, I'm not going to
let you guys break me." Braun, Sr., conceded talking to
Brown at the time and place in question, but said that
Brown began the conversation by asking for a wage in-
crease. Braun said that upon his questioning, Brown
made it clear that he wanted a 25-cent-an-hour wage in-
crease not only for himself but for the whole plant. Braun
said he told Brown that he had never granted a blanket in-
crease, only individual increases. When asked if during
the conversation anything was said about the Union,
Braun first replied, "I know he [Brown] mentioned
something that there was a general idea about joining the
union." To the same question he later testified that
Brown told him "they're going to think about organizing
the place." Employee Brown impressed me as a credible
witness. To the extent that his testimony concerning the
foregoing conversation differs from that of Braun, Sr., I
credit his version. Moreover, and as noted below, it is un-
denied that on November 2, 1965, Braun engaged in a
similar and far more extensive course of conduct involv-
ing the questioning of practically all of the employees.
It is undisputed that on November 2, Respondent's
sheet metal workers and pipefitters were individually
summoned into the office of President Braun where he
spoke to them alone. Three employee witnesses testified
without contradiction as to the nature and content of
these conversations.4 Mack Roach, a sheet metal worker
with the Respondent for approximately 9 years and the
alleged discriminatee herein, was the last employee to be
called in. Roach's credited and undenied testimony of the
conversation which ensued is as follows: Upon entering,
he was told to sit down. The bookkeeper entered the of-
fice and placed five of his cancelled paychecks on the
desk. Braun, Sr., then asked Roach if he or his wife had
endorsed the checks. Roach said that he did. Braun then
asked that he sign his name on a yellow pad. Roach, who
testified that the paper bore the signatures of the em-
ployees who had been called in before him; signed his
name under that of the last employee. Braun then asked
Roach if he had signed a union card. Roach said that he
did not think that he ought to tell. When Braun thereupon
stated that he might as well, because he was "going to find
out anyway," Roach conceded that he had signed a card.
Braun asked where he had obtained the card. Roach said
he had obtained it from a union representative outside of
the shop. Braun then said, "Well, if you get the union in
here you are only going to be hurting yourself. There are
going to be a lot of changes if it gets in ... you have been
here a long time and you haven't lost much work since
you have been here, but if the union gets in, I can't afford
to pay those wages. You will be out of work. I can't afford
to keep you working." At this point Braun asked if he
thought the Union was a good thing Roach answered af-
firmatively and stated that it would get the employees
more money. The conversation then turned to wages and
raises, the details of which need not be related here. How-
ever, in addition to the foregoing, Roach testified without
contradiction that during the conversation Braun stated
that if the Union came in he would take away all the
trucks5 and require the men to buy their own tools; and
5 Roach here had reference to the fact that the employees who worked
out of the plant were permitted to take their trucks home after working
hours.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "he could just get rid of everybody in there and hire
someone else , go down the street and open up a new
shop, a new company, rather than have a union." Braun
finally stated that it was none of his business how the em-
ployees voted, but that there would be some "big
changes" if the Union got in . Employee Kenneth Brown
testified that upon being called into the office he was also
queried as to who endorsed his paychecks, whereupon he
was also asked to sign his name to the yellow pad. Braun
then asked if he had signed a card for the Union, and if so,
whether the card was for the Pipe Fitters Union or the
Sheet Metal Workers Union. Upon Brown's disclosing
this information, Braun asked from whom he had ob-
tained the card. Brown said he obtained it at the union
hall. Braun thereupon talked to Brown about changes in
conditions of employment which would result if the Com-
pany became unionized, much in the same manner as he
did with Roach, as has been heretofore related.6 Further
testimony concerning Braun 's interviews with the em-
ployees on November 2 was given by Omer Rider, a
sheet metal worker who had been employed by the
Respondent for approximately 20 years. Like the others,
he testified without contradiction that Braun asked if he
had signed a union card. Rider told Braun that he had not.
Rider credibly testified that Braun thereupon asked if em-
ployee Mack Roach "was one of the starters of having a
union come in." Rider answered that he did not know.
This testimony is undenied.
For the sake of chronology, it may be noted that a
Board hearing on the Unions' representation petitions
was scheduled for November 12. Two days before, on
November 10, Respondent's attorney visited the plant
and interviewed, individually, each of the employees. The
record reflects that the purpose of the interviews was to
enable counsel to prepare for the representation hearing. 7
The complaint does not allege, nor does the General
Counsel contend, that Respondent violated the Act by
the attorney's interviews with the employees.
On the following day, November 11, President Braun
assembled the employees in his office and during the
course of the meeting discharged Mack Roach. While this
is noted chronologically, the details of this meeting are
hereinafter discussed in the section dealing with the al-
leged discrimination against Roach.
As more fully noted hereinafter, the parties met for a
scheduled representation hearing on November 12 and
at this time agreed to a consent election. The election was
set for November 29, a Monday, between the hours of
7:30 and 8:30 a.m. It is undisputed that President Braun
assembled the employees and spoke to them again when
they reported to work in the morning on Saturday,
November 27.8 Opening the meeting with a statement to
the effect that the employees could vote as they pleased,
Braun stated that this would be a question-and-answer
period and that he would try to answer any questions.
The employees then brought up such matters as vaca-
tions , insurance, the use of company trucks after working
hours, the purchase of tools, and asked what changes in
present company practices concerning these matters
would occur if the Union got in . According to the
8 Brown testified also that during this conversation Braun stated that he
could buy off the union agents for $50.
' The interviews were recorded by a reporter and the transcripts of the
interviews were received in evidence Counsel's questions to the em-
ployees concerned their various job duties.
8 Saturday is a normal workday for Respondent 's employees. Braun
testified that he called the meeting because the employees requested that
testimony of Braun and employee William Barrett, Braun
replied that these matters would be subject to negotiation
with the Union. With respect to the Company's current
profit-sharing plan, Braun advised that it had been ap-
proved by the Internal Revenue Service and that it would
remain in effect. In addition to the foregoing, it is un-
disputed that during this meeting Braun also referred to
the consequences that would result to Respondent's busi-
ness if the Union became the bargaining representative.
Thus, employee William Barrett testified that Braun told
the employees that "if the union went in he would go out
of business ... he would buy another place and open up
another place down the street ... there would be five or
six men working there if it did go through, the union."
Gilbert Hageman , a serviceman called by the Respond-
ent, was asked on direct examination what Braun said
concerning the Respondent's going out of business if the
Union came in. In response Hageman said that a discus-
sion ensued "about how could we meet competitive
prices and competition if he had to pay us union scales."
Continuing, Hageman testified:
He [Braun, Sr.] said in a short time, a matter of
months we would be running out of work, because he
said he just couldn't compete and take on more new
work if he had to pay higher wages, so therefore
eventually we would just fold up and close out and
just be down to more or less a service company, tak-
ing care of the customers and jobs that we've had for
years.... If it gets that far he could work some men
out of their own homes. . . . It would be down to
more or less a service group, which at that time was
five or six men, it would just keep getting smaller.
Braun did not deny that testimony of Barrett nor did his
testimony differ substantially from that of Hageman.
When asked the same question as put to Hageman
(above), Braun 's testimony was as follows:
I really didn't know at the time what the wage scale
was, but I know ours was somewhat less, we primari-
ly being residential contractors, by that , I mean res-
idential houses, the majority, the bulk of our work
is residential and in Cincinnati, I would think of the
houses built in Cincinnati union-wise would be less
than one percent, so we are in a very small field if we
were going to belong to a union, and expect to main-
tain the pace or amount of work, it would diminish
fast. I said that we would be able to finish the work
that we started, from then on with the additional
costs, I doubt if we would pick up any work and it
would just be a question of how long it would take to
exhaust what we already had on our books, it might
be six months it might be eight.... I did say that we
had a fair amount of service work, we could probably
always handle five or six or seven men.
B. Conclusions as to the 8(a)(1) Violations
From the facts set forth above, it is clear that Respond-
ent engaged in an extensive campaign designed to
prevent its employees from exercising the rights guaran-
they have a "general meeting ." Employee Gilbert Hageman , called by the
Respondent , testified that he requested the meeting because he wanted to
asked questions about rumors that were passing among the employees.
Employee William Barrett , called by the General Counsel , testified that
he was not aware that any employees had requested the meeting. The rele-
vant issue , of course , is what Braun said to the employees.
NATIONAL HEATING CO.
teed them in Section 7 of the Act. Specifically, I find that
Respondent , by Braun, Sr., violated the Act by the fol-
lowing conduct : ( 1) its interrogation of Kenneth Brown
on October 28 concerning employee union activity; (2)
its summoning the employees individually into the office
on November 2 and interrogating them in regard to their
union activities, sympathies, and desires; (3) on the same
occasion, its threats of economic reprisals to the em-
ployees if the Company became unionized, as well as the
threat to Roach that rather than to have a union the
Respondent would get rid of the employees and open up
a new shop down the street; and (4) its threat to the em-
ployees on November 27 that if the Company became
unionized it would close the plant and/or that it would
become only a service organization with a complement of
six or seven service employees."
C. The Discharge of Mack C. Roach
With the brief exception noted below, Mack C. Roach,
a sheet metal worker, was steadily employed by the
Respondent from 1956 until November 11, 1965. Roach
and employee Carl Altrock, also a sheet metal worker,
were engaged principally in the filling of orders and the
fabrication of various sheet metal components in the
plant. They were the only "inside" employees, this as
contrasted to the other employees who spent most of
their time in the field where they were engaged in outside
installation and service work.
As heretofore noted, it was Roach who first contacted
the Union and it was he who was initially responsible for
the organizing campaign. Thereafter Roach signed up
other employees and continued to act as a leader in the
organizational drive. As has been also noted, Roach was
called into the office of Braun , Sr., on November 2 at
which time Roach, upon being pressed by Braun, ad-
mitted that he had signed a union card and stated that he
thought the Union was a "good thing." Moreover, the
record reflects that Respondent at this time suspected
Roach of being the prime mover in the union campaign,
for on the same date Braun , Sr., asked employee Omer
Rider if it was not a fact that Roach was initially responsi-
ble for starting the organizational drive.
Prior to Roach' s discharge on November 11, 1965, it
is undisputed that Sheldon Braun , Jr., terminated Roach's
employment for a period involving approximately the last
2 weeks of August 1965.1" Concerning his termination at
this time, Roach testified that Braun, Jr., came up to him
in the middle of the morning and advised that he was
going to be "let go ." Roach said that when he inquired as
to the reason , Braun , Jr., replied that , "we are going to
close the shop down. We can buy the materials. There
was a fellow in here the other day and he can sell us the
materials cheaper than we can possibly make them."
9 This finding is predicated upon the undenied testimony of employees
Barrett and Hageman , as heretofore set forth . Assuming that Braun also
stated , as his quoted testimony implies, that the Company would take
such action because it would be unable to meet competition, this does not
nullify the coercive impact of such statements These remarks were not
simply predictions of future action that the Respondent might be forced to
take if the Union made exorbitant demands that it could not meet. Cf
Wausau Steel Corporation, 160 NLRB 635.
10 It is not alleged that this termination was for discriminatory reasons
' I It may be noted that Roach testified he was terminated by Braun, Jr.,
on August 16, 1965. Braun , Jr., testified that the layoff occurred about
August 24 . Roach 's timecards , which were subsequently introduced by
the Respondent , reflect that Roach was not on the payroll for approxi-
537
When Roach then asked if Altrock would also be laid off,
Braun replied that Altrock would be retained for 6
months "until things were straightened out." The
testimony of Braun, Jr., concerning this termination was
confused and fragmentary. Without supporting detail, he
stated in general terms that Roach was terminated
because he was not keeping up with production. Roach
impressed me as an honest and forthright witness and I
credit his testimony concerning the conversation he had
with Braun, Jr., at the time of this termination.
It is undisputed that Braun, Sr., called Roach back to
work about September 1.11 Braun, Sr., testified that at
this time he called both Roach and his son into the office
and that he told them "you and him [Braun, Jr.] definitely
have got to get along, because you are in direct contact all
the time and he's between you and the men outside, and
all of this confliction has got to be stopped." In addition
Braun , Sr., testified that he told Roach that his production
was "not near what it used to be" and that he had better
"shape up" or he would not be there long. Concerning his
recall, Roach testified that he went to the plant after
receiving a message left at his home by an employee that
he report in. Roach said that when he entered the office
Braun, Jr., was on the telephone and that he spoke to
Braun , Sr., alone. When Braun , Sr., asked if he wanted to
return to work, Roach replied in the affirmative, but on
condition that the job would be permanent and that he
would not be laid off again in a few weeks. Roach said
that Braun , Sr., assured him that two men were needed
and that he thereupon agreed to report to work on the fol-
lowing Monday. Roach also testified that at the end of the
conversation Braun , Sr., remarked, "I don't see why you
and Jr. don't get along too well," and that he replied, "I
wasn't trying not to get along with him." When asked if
Braun told him that he had better shape up or he would
not be there long, Roach testified, "I don't recall him say-
ing any such thing." While this testimony is not a literal
denial that the statement was made, from my observation
of the witnesses, I credit Roach's version as to the cir-
cumstances of his recall and his conversation with Braun,
Sr., at the time of his recall.12 Upon the entire record in
this case, and from my observation of the witnesses, I am
convinced and find that Braun , Jr., terminated Roach
because he and Roach did not get along. This is clear not
only from the testimony of Braun, Sr., who said they
would have to get along at the time of Roach's recall, but
Braun, Jr., also conceded that: "He (Roach) was a rabble
rouser or something, he was always trying to get me in the
middle of these guys. "13
It will be recalled that Respondent's attorney came to
the plant and interviewed each of the employees on
November 10 in preparation for the representation hear-
ing to be held on November 12. It is undisputed that
Respondent 's attorney at this time served each of the em-
mately the last 2 weeks of August 1965, but that he was again on Re-
spondent 's payroll in the first week of September
12 Braun , Jr., did not testify concerning any recall conversation at which
he was present . Moreover, although Braun , Jr., said that about a week or
so before he terminated Roach he told his father that "one of these days
we're (he and Roach) going to part company." He testified that he did not
consult with his father at the time he discharged Roach Braun , Sr., how-
ever, testified that he participated with his son in making the decision to
terminate Roach in August.
'° Roach also testified that he did not get along with Braun , Jr. The
record further reflects that Roach , while on the job, called Braun, Jr., by
the name of "Junior " The age of Braun , Jr., is 24. Roach is about 4 years
his senior.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees with a subpena to testify at the hearing. Roach's
final discharge, which is at issue here, took place on
November 11 under the following circumstances: It is
undisputed that about 8:30 a.m. on Thursday, November
11, all of the sheet metal workers, of whom there were ap-
proximately 12, were summoned into the office of Braun,
Jr., where they were addressed by Braun, Sr. Except to
the extent hereinafter noted, there is no dispute as to what
occurred and what was said at this meeting. Thus, Braun,
Sr., opened the meeting by telling all the employees who
drove trucks to step up and put the keys to their trucks on
the desk. 14 When this was accomplished he proceeded by
stating that there had been a slowdown and he wanted to
know why. He thereupon turned to Carl Engel and asked
what was his problem. Engel replied that he was not
aware of any problem or that his production was down.
According to Braun, he turned next to employee Walter
Green. Green was asked the same question and gave the
same answer. At this point he turned to Roach. Braun
testified, "I asked Mack Roach what his problem was and
I got the same answer." Braun thereupon told Roach that
his production was off $500 compared to the same month
in the last year. There here arises some dispute in the
testimony. Roach testified that at this point Braun said
that "he was not going to put up with it" and that he
should pick up his timecard and have his check made out.
In substantial corroboration of Roach, employee Brown
testified that after Braun had charged Roach- with being
off $500, Braun asked Roach, "What do you say about
that?" Brown said that Roach replied, "Well, I don't
know," whereupon Braun told Roach to pick up his
timecard and have his check made out. Braun asserted
that more than this took place. Braun testified that after
Roach said that he did not know why his production (al-
legedly) was down, he reminded Roach that he (Braun)
had rehired him over his son's head and that he had been
advised to shape up or he would be let go again. Braun
said that he then stated to Roach, "If you can give me a
reason why you have this general slow down, I will be
happy to listen to it." It was Braun's testimony that at this
point, "he [Roach] couldn't give me any answer, he gave
me a sneer and a smile and said he didn't know why."
Braun testified that thereupon he repeated the same
question, but that Roach "couldn't give me any answer."
Braun said that he then told Roach to pick up his timecard
and that he would personally sign his check. From my ob-
servation of the witnesses, I credit the testimony of
Roach and employee Brown concerning the conversation
between Roach and Braun, Sr., which occurred during
this meeting. However, and as hereinafter noted, my ulti-
mate conclusion concerning Roach's termination would
be the same even if I accepted Braun's testimony con-
cerning the latter part of this conversation. It is un-
disputed that after the above discussion Roach left the
meeting to pick up his timecard and that he returned
shortly thereafter to have Braun sign his final termination
check.
"The timing of this remark is not in substantial dispute Employee
Kenneth Brown recollected that at this point he left the room to get his
keys and that Braun, Sr , did not disclose the purpose of the meeting until
after he returned to the office and placed the keys on the desk
15 The record reflects that in the summer of 1965 Roach at first refused
to wear a newly issued company uniform but that he ultimately complied
However, this matter is hardly relevant since it is not a reason assigned by
the Respondent for his discharge in November
16 The fabricating work which Roach normally would have performed
D. Conclusions as to Roach's Discharge
It is significant to note at the outset of this discussion
that Roach had satisfactorily served the Respondent as a
sheet metal employee for approximately 9 years prior to
the dispute which is at issue here. 15 As has been hereto-
fore noted, Roach was terminated for a 2-week period in
latter part of August 1965, by Braun, Jr. However, as has
been previously found, this termination arose because of
personal differences between Roach and the younger
Braun. The fact that Braun, Sr., reinstated Roach "over
his son's head" certainly is a strong indication that the
elder Braun must have regarded Roach as a satisfactory
and competent employee.16 Accordingly, I am satisfied
and find that Roach's termination in August was not the
result of any deficiency in his work performance.
In explanation of his reason for discharging Roach dur-
ing the course of the November 11 meeting, Braun, Sr.,
testified that he had not predetermined to discharge this
employee at the time he called the meeting. Rather, Braun
asserted, he discharged Roach when Roach failed to give
an answer as to the reason for his production being
down. 17 Before considering this explanation of Braun, it
is first relevant to consider Braun, Sr.'s charge to Roach
that his production was down $500 within the last month
or two as compared to the same period in the preceding
year. In the first place, Braun's testimony is confusing as
to whether Roach alone was allegedly down $500 or
whether this asserted figure included the work of Carl Al-
trock, a coworker with Roach. Thus, Braun testified as
follows:
TRIAL EXAMINER: I believe you testified that
production was down $500 in a month, did that refer
to all the sheet metal employees?
THE WITNESS: No, that was production.
TRIAL EXAMINER: And who is involved in produc-
tion?
THE WITNESS: Mack Roach and Carl Altrock.
TRIAL EXAMINER: Did you review Roach's and
Altrock's records individually?
THE WITNESS: Yes, Sir.
TRIAL EXAMINER: Did I understand your
testimony to be that Roach was more responsible for
any such loss during this period than was Altrock?
THE WITNESS: They each make their own daily
sheets, what they produce, and this is tabulated then
per day, per week, per month.
TRIAL EXAMINER: Now, what did those records
show?
THE WITNESS: They were short in, I think it was
August of'65, approximately $500.
TRIAL EXAMINER: Who was short?
THE WITNESS: Mr. Roach.
TRIAL EXAMINER: And how about Mr. Altrock?
THE WITNESS: No difference, I think it was within
$15.
during his 2 -week termination was contracted out to another company
"Thus, Braun, Sr., testified , " I discharged him at the instant he
couldn't give me any satisfaction of why when I asked him maybe four or
five questions I would get no answer he didn't give me any answer .
just gave me a sneer and said he didn't know why " Braun, Sr , further
testified , " I liked the guy, this kid isn't any dummy , he can perform, if he
would have given me any kind of break at all in there, 1'm_positiveif he
would have said you give me another week , I would have been happy to
give it to him."
NATIONAL HEATING CO. 539
. It seems to me that at least one construction of the
foregoing testimony would be that Altrock was about
equally responsible for any loss of production as was
Roach. Significantly, the Respondent failed to offer or in-
troduce the production records of Roach, Altrock, or of
the sheet metal department, even though such documents
were available.18 Moreover, Braun , as noted in his above-
quoted testimony, asserted without further explanation
that Roach's output was short in the month of August
1965. This, he previously testified, was on a comparative
basis with the year 1964. The unreliability of this unsup-
ported testimony becomes all the more apparent when
considered with the undisputed fact that Roach was off
work for 2 weeks in August 1965.19 Turning now to
Braun's assertion that Roach was discharged because he
did not give the right answer to his question concerning
the alleged deficiency in production, it will be recalled
that the same question was put to Engel and Green, both
of whom Braun said responded to the effect that they
were not aware of any slowdown or that they did not
know why. As previously noted, Braun testified that after
questioning these two employees he thereupon turned to
Roach, asked him the same question, and received the
same answer. In accordance with my preceding finding
that at this point Roach was discharged, the disparate
treatment of this employee becomes so readily apparent
that no further elaboration is necessary. But assuming
that Braun was not satisfied with Roach's answer and that
he pressed him further, only to receive the same
response, it is equally true that Braun did not, so to speak,
similarly cross-examine the other employees from whom
he received the same initial response . 20 In short , I am per-
suaded and find that Braun, Sr., singled out Roach and
that he discharged him in violation of Section 8(a)(3) and
(1) of the Act.21 Respondent's asserted reasons for the
discharge of this employee do not stand up under scru-
tiny, a factor which in itself is indicative of discrimination.
In addition, other relevant and compelling evidence, in-
cluding Respondent's well-founded suspicion that Roach
was the first to bring in the Union; Respondent's union
hostility, as demonstrated by its 8(a)(1) conduct as set
forth herein; and the timing and precipitate manner of
Roach's discharge, coming as it did on the day before the
representation hearing and in the presence of all Respond-
ent's sheet metal employees , lead me to conclude and
find that Respondent's decision to terminate Roach was
motivated by discriminatory considerations and that its
action was thus violative of Section 8(a)(3) of the Act.22
16 As indicated in the quoted testimony above , Braun, Sr., testified that
he had reviewed the worksheets of Altrock and Roach . Moreover , Braun,
Sr., testified that a basis for his belief that the output of all of the sheet
metal workers was down was predicated upon his review of the work
records of this department.
iB Later in the hearing, after the implausibility of the above testimony
was openly noted at the hearing , Braun , Sr., changed his testimony to say
that he had charged Roach with a $500 deficiency for the month of
November rather than August. ,
10 Moreover , there is no evidence that Braun , Sr., engaged in any
similar action against Carl Altrock, the other employee who worked with
Roach , and whom Braun , Sr , at the hearing indicated was also deficient
in his output of work.
21 Without being at all specific , Braun, Sr., gave some vague testimony
to the effect that prior to August 1965, he complained several times to
Roach and Altrock that the sheet metal inventory in 1964 had a higher
value than it did in 1965 Roach testified that during his employment
"there was always some general complaint with everybody that produc-
tion should be up ." He further testified , and I credit his testimony to this
effect , "I don 't recall any specific time that he (Braun, Jr.) criticized (me)
other than the average , I mean , just saying let 's get this done or you can
E. The 8(a)(5) Allegation
Predicated upon the Joy Silk Mills doctrine,23 the com-
plaint alleges that on and after November 12, 1965, the
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union in an ap-
propriate bargaining unit. Respondent's defense hinges
principally upon its contention that the employees did not
validly designate the Unions to act as their joint bargain-
ing agent in the alleged appropriate unit. As indicated
below, I find merit to the Respondent's contention.
As noted at the outset of this Decision, the two Unions
involved in this proceeding agreed to undertake a joint or-
ganizational campaign with the understanding that
Respondent's pipefitter employees would sign cards for
Local 392 of the Pipe Fitters Union and the sheet metal
workers would sign cards for the Sheet Metal Workers
Union. This is in fact what occurred as the campaign
proceeded. Thus, the cards signed by Respondent's
pipefitter employees stated in pertinent part as follows:
I, the undersigned employee of the (Company) em-
ployed as (occupation) at (place), hereby make appli-
cation for membership in the United Association of
Journeymen and Apprentices of the Plumbing and.
Pipe Fitting Industry of the United States and
Canada, Local Union No. 392, and when accepted
into membership do hereby agree to abide by its con-
stitution and by-laws, and herewith designate the
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local Union No. 392,
and its duly authorized representatives, as my sole
collective bargaining agent. [Emphasis supplied.]
The cards signed by Respondent's sheet metal em-
ployees stated as follows:
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION
AFFILIATED WITH AFL-CIO
AUTHORIZATION FOR REPRESENTATION
I, the undersigned, hereby authorize the SHEET
METAL WORKERS INTERNATIONAL AS-
SOCIATION, or any affiliated Local Union thereof,
to represent me for purposes of Collective Bargain-
ing, and in my behalf, to negotiate and conclude all
agreements as to hours of labor, wages, and other
conditions of employment.
hurry up a little more , something like that." In any event, the record is
clear and I find that Roach was never warned concerning any alleged
slowdown nor was he given any warning concerning the alleged deficiency
in his output prior to the November I I meeting.
22 1 think it more than a coincidence that Braun , Sr., called this meeting
the day before the representation hearing just as he subsequently called
the employees together and spoke to them in a coercive manner on the last
workday preceding the election . As to the November I I meeting , I think
it also peculiar that at the outset of this meeting Braun , Sr., required the
employees to place their truck keys on the desk. Employee Brown
testified without contraadiction that the keys were not returned until the
end of the meeting, at which time Braun, Sr., stated , "You guys get these
keys and get on out of here then, if anyone wants their check I'll be in my
office " The atmosphere in which this meeting was conducted is further
reflected by Brown' s undenied testimony that Braun, Sr , stated near the
outset of the meeting , "I can do without this sheet metal department, all of
you guys. You never made no money anyway, never "
23 Joy Silk Mills, Inc. V. N.L.R B., 185 F.2d 732 (C A.D.C.), cert. de-
nied 341 U.S. 914 Also applicable under the General Counsel's theory is
Kernel Foam Products, Inc, 146 NLRB 1277, and Irving Air Chute
Company, Inc., 149 NLRB 627
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 4, 1965, Pipe Fitters Local Union 392
filed a representation petition in Case 9-RC-6543, the
petition alleging the appropriate bargaining unit to consist
of "all pipe fitters, excluding all other employees, profes-
sional employees, office clerical employees, guards, and
supervisors as defined in the Act." On the same date
Sheet Metal Workers Local 141 filed a representation
petition in Case 9-RC-6544, the petition alleging the ap-
propriate bargaining unit to consist of "all sheet metal
workers, excluding all other employees, professional em-
ployees, office clerical employees, guards and super-
visors as defined in the Act."
Pursuant to a notice of hearing and an order of the Re-
gional Director consolidating the above RC cases, the
parties met for hearing on November 12, 1965. However,
the hearing did not open for on this date the parties ex-
ecuted a stipulation for certification upon consent elec-
tion. This agreement provided that the parties would ap-
pear on the ballot as joint petitioners and that the ap-
propriate bargaining unit was to consist of "all production
and maintenance employees employed by the Employer,
including employees working in the field and in the sheet
metal shop, excluding office clerical employees, the
dispatcher, salesmen, and all guards, professional em-
ployees and supervisors as defined in the Act."24
Pursuant to this agreement, an election was conducted on
November 29, 1965, which resulted in 6 votes being cast
for the Petitioners and 12 votes being cast against the par-
ticipating labor organizations. The Petitioners sub-
sequently filed objections to the election, the merits of
which are considered hereafter in this Decision.
I turn now to my conclusions concerning the alleged
refusal to bargain. Preliminarily, it is noted that Respond-
ent admits that the unit set forth in the consent agree-
ment, and as alleged in the complaint, is appropriate for
the purposes of collective bargaining. Further, and aside
from the question of designation of the bargaining agent,
the credited and unrefuted testimony of employee wit-
nesses establishes, and I find, that a majority of the em-
ployees in the unit composition stipulated to, by the
parties signed union authorization cards on or before
November 12, 1965.25
There remains the issue as to whether Respondent's
employees in fact designated the two Unions here in-
volved to act as their joint collective-bargaining represent-
ative. This question, it seems to me, must quite clearly be
answered in the negative. Thus, the face of the respective
cards signed by the employees explicitly authorized only
the Union designated thereon to act as the bargaining
agent. There is no evidence whatsoever to indicate that
the employees were ever told that the signing of a card for
either Union would also be considered as authorization
for both Unions to act as the joint collective-bargaining
agent. Accordingly, since the evidence does not establish
that the employees authorized the Unions to act for them
as the joint bargaining representative, or that such was
their intention, I shall recommend that the alleged 8(a)(5)
allegation in the complaint be dismissed.26 It is true that
by this result the Respondent may stand to benefit by its
own 8(a)(1) and (3) unfair labor practices. On the other
:land, although an inference may be drawn that a majority
of the employees were influenced to vote against the
Unions because of such unfair labor practices, the in-
ference is equally warranted that the employees so voted
because they did not desire joint representation by the
Pipe Fitters and Sheet Metal Workers Unions.27
IV. THE OBJECTIONS TO THE ELECTION
The objections to the election involved conduct which
has previously been considered herein, i.e., the dis-
criminatory discharge of Mack C. Roach on November
11, 1965, and the coercive statements made by Braun,
Sr., to the employees at the meeting held on November
27, 1965. Having found that by such conduct the Re-
spondent violated Section 8(a)(3) and (1) of the Act, it is
found and concluded chat there also is merit to the objec-
tions which are at issue herein.28 Accordingly, it is
recommended that the election in this case, which was
held on November 29, 1965, be set aside,
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in and
is engaging in certain unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, it will be
recommended that Respondent be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer to
Mack C. Roach, immediate and full reinstatement to his
former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the unlawful discrimination against
him, by payment to him of a sum of money equal to that
which he normally would have earned, absent said dis-
24 Subsequently the petition in Case 9-RC-6543 was withdrawn and
the petition in Case 9-RC-6544 was amended and executed by each
Union to conform with the terms of the consent agreement
25 1 deem it unnecessary to decide whether Carl Engel is a supervisor
within the meaning of the Act. Thus, assuming Engel's inclusion in the
unit and also assuming Roach's exclusion from the unit, the card count
would still be 10 signed cards out of 19 employees in the unit It is further
noted that of these 10 employees, 15 signed cards for the Sheet Metal
Workers Union and 5 for the Pipe Fitters Union Roach, whose card
should also be properly counted in view of the findings herein, signed a
card for the Sheet Metal Workers.
26 In accord with this conclusion is Super Sagless Spring Corporation,
125 NLRB 1214, 1235, LeRoy Stovesand Motor Company, 127 NLRB
19, 24 In view of this conclusion , I deem it unnecessary to determine
whether on November 12, the Unions made an effective request to bar-
gain.
27 William Crellm, business manager of Pipe Fitters Local 392, testified
that he met with five of Respondent's pipefitter employees who sub-
sequently signed cards for the Pipe Fitters Union Significantly, Crellin
testified , "We explained to them what our working conditions were, what
our fringe benefits were, what our wages were, what our apprenticeship
and educational system consisted of, and we tried, to the best of our ability
to tell them what it meant to be Union men." [Emphasis supplied.] Crellin
testified that by "our" he meant Pipe Fitters Local No 392
28 All of the conduct referred to above occurred subsequent to the filing
of the petitions and prior to the holding of the election
NATIONAL HEATING CO.
crimination, from the date of his discharge to the date of
offer of reinstatement, less his net earnings during said
period. Backpay shall be computed in the manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and with interest thereon as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the serious nature of the unfair labor prac-
tices here involved, it will be recommended that the
Respondent cease and desist from infringing in any
manner upon the rights guaranteed employees by Section
7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
4. By discriminating in regard to the employment of
Mack C. Roach, to discourage membership in the Unions
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent has not violated Section 8(a)(5) of
the Act by refusing to bargain with the Unions as alleged
in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law , and pursuant to Section 10(c) of the Act, it
is recommended that Respondent , The National Heating
Company, its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with
respect to their union activities , sympathies , and affilia-
tions ; threatening them with lost of benefits for engaging
in union activity ; and threatening to close the plant or to
reduce its complement to a service organization if the em-
ployees select the Union as their bargaining representa-
tive.
(b) Discouraging membership of any employee in Pipe
Fitters Local Union 392 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, or Sheet Metal Workers International As-
sociation , Local 141, AFL-CIO, or any other labor or-
ganization, by discharging or in any other manner dis-
criminating against any employee with regard to his hire
or tenure of employment , or any term or condition of em-
ployment , except as authorized in Section 8(a)(3) of the
Act.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
541
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Mack C. Roach whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in the sec-
tion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its plant at Cincinnati, Ohio, copies of the
attached notice marked "Appendix."29 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 9 , after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive 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.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.30
IT IS FURTHER RECOMMENDED that the allegation of the
complaint that Respondent violated Section 8(a)(5) of the
Act be dismissed.
IT IS FURTHER RECOMMENDED that the election con-
ducted on November 29, 1965, be set aside and that Case
9-RC-6544 be remanded to the Regional Director of Re-
gion 9 of the National Labor Relations Board for the pur-
pose of conducting a new election at such time as he
deems that circumstances will permit the free choice of a
collective-bargaining representative by the employees
concerned.
29 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced,by a decree of a (United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
so In the event that this Recommended Order is adopted by the Board,
this provisiomshall be modified to read - "Notify said Regional Director,
in writing, within 10 days from the date of this Order , what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate our employees concern-
ing their union activities, sympathies, or member-
ship.
WE WILL NOT threaten our employees with loss of
benefits for engaging in union activity.
WE WILL NOT threaten to close our plant or to
reduce it to a service organization if our employees
select the Union as their bargaining representative.
542 DECISIONS OF NATIONAL
WE WILL NOT discourage membership in Pipe Fit-
ters Local Union 392 of the United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO, and Sheet Metal Workers Inter-
national Association, Local 141, AFL-CIO, or any
other labor organization of our employees, by
discharging any of our employees because of their
concerted or union activities, or in any other manner
discriminate against them in regard to their hire or
tenure, or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Mack C. Roach and make him whole for any loss of
pay he may have suffered because of the discrimina-
tion against him.
LABOR RELATIONS BOARD
All our employees are free to become or remain mem-
bers of the above-named Unions or any other labor or-
ganization, or to refrain from such membership.
Dated By
THE NATIONAL HEATING
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.