Williamsport Plumbing and Heating Co., Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1980

253 N.L.R.B. 883 (N.L.R.B. 1980)

WILLIAMSPORT PLUMBING AND HEATING CO., INC.
Williamsport Plumbing and Heating Co., Inc. and
Plumbing and Pipefitters Local Union No. 810.
Case 4-CA-10591
December 19, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 30, 1980, Administrative Law
Judge Russell M. King, Jr., issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer to Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that the Respondent,
Williamsport Plumbing and Heating Co., Inc., Wil-
liamsport, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph 2(c) and re-
letter the remaining paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
I Respondent has excepted to certain credibiliy findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
2 Respondent contended in its exceptions that the discharged employ-
ees were supervisors under the Act The issue of supervisors status was
raised neither in the pleadings nor at the hearing before the Administra-
live Law Judge We therefore reject Respondent's contention as uintime-
ly California Pacific Signs. Inc. 233 NLRB 450 1977) Moreover even if
the issue of the supervisory status of the individuals in question was prop-
erly before the Board, the record contains insufficient evidence on which
a finding of supervisory status could he based
253 NLRB No. 121
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OI: THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge employees because
of their union activities.
WE WILL NOT create the impression that
management is engaging in surveillance of
union activities of employees.
WE WILL NOT coercively interrogate em-
ployees concerning their union sentiments and
activities.
WE WILL NOT tell employees that any ef-
forts to engage in collective bargaining
through a union would be futile.
WE WILL NOT threaten to discharge employ-
ees in retaliation for their union activities.
WE WII.I. NOT offer employees increased
wages, other benefits, or an interest in the
business in order to wean them away from
supporting the Union.
WE WILL NOT threaten plant closure if em-
ployees select or become represented by a
union.
WE WIlL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist a labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concert-
ed activities for the purpose of collective bar-
gaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to re-
frain from any and all such activities.
WE WILL offer Samuel D. Hardy, Joseph
O'Neil, Gary Stewart, Leonard Hinton, and
Philip Frederick immediate and full reinstate-
ment to their former positions or, if such posi-
tions no longer exist, to substantially equiva-
lent positions, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed, and WE WILt make them whole
for any loss of earnings or other benefits they
8X
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may have suffered as a result of the discrimi-
nation against them, with interest.
WILL IAMSPORT PLUMBING AND
HEATING CO., INC.
DECISION
RUSSEI.I. M. KING, JR., Administrative Law Judge:
This case was heard by me in Williamsport, Pennsylva-
nia, on May 19 and 20, 1980. The charge was filed by
the Charging Union (herein called the Union) on Octo-
ber 29, 1979,1 and the complaint was issued on Decem-
ber 20 by the Regional Director of Region 4 of the Na-
tional Labor Relations Board (herein called the Board)
on behalf of the General Counsel. The complaint alleges
numerous incidents of threats and unlawful interrogation
by the Respondent in September during a union organi-
zational campaign, and the unlawful discharge of five
employees because of their union support or activities, in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (herein called the Act).2 The
Williamsport Plumbing and Heating Co., Inc. (herein
called the company), of the Respondent essentially
denies all alleged violations of the Act.
Upon the entire record,3 including my observation of
the demeanor of the witnesses, 4 and after due considera-
tion of the briefs filed herein filed by the General Coun-
sel and the Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The pleadings and admissions herein establish the fol-
lowing jurisdictional facts. The Respondent company is
and has been at all times material herein a corporation
duly organized under and existing by virtue of the laws
of the State of Pennsylvania with an office and place of
business in Williamsport, Pennsylvania, where it is en-
All dates hereafter are in 1979 unless otherwise indicated.
T he pertinent parts of the Act provide as follows:
Sec. 8. (a) It shall be an unfair labor practice for an employer- (1)
to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 .(3) by discrimination in regard to
hire or tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor organila-
tion.l . . .
Sec. 7. Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection ....
3 Certain errors in the transcript are hereby noted and corrected
4 The facts found herein are based on the record as a whole and upon
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits,
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of N.L.R.B. v. Walton Manufacrturing Company
& Loganville Pants Co., 369 U S. 404, 408 (1962). As to those testifying in
contradiction of findings herein, their testimony has been discredited
either as having been in conflict with the testimony of credible witnesses
or because it was in and of itself incredible and unworthy of belief All
testimony has been reviewed and weighed in light of the entire record.
gaged in the business of mechanical contracting. During
the 12-month period prior to the issuance of the com-
plaint herein, the Respondent in the course and conduct
of its business operations purchased goods valued in
excess of $50,000 directly from points located outside the
State of Pennsylvania. Thus, and as admitted, I find and
conclude that the Company is now, and has been at all
time material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
As also admitted, I find and conclude that the Charg-
ing Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
11. ALL. EGED UNFAIR I ABOR I'RACTICES
A. Background
In late August or early September Union Business
Representative James Payne set out to organize the com-
pany's employees. The union had reduced its initiation
fee from $750 to $150 for new members that joined from
the Company, and Payne also advised employees that if
they joined the union and for some reason left the Com-
pany he could obtain jobs for them with nearby union
contractors or employers. On September 20, some 16 en-
ployees met and took a "straw vote" on union support.
The results were 8 in favor, 7 against, and I undecided.
No mention was made by Payne of any intention to file a
representation petition with the Board for an election.
The Company's president, James Maiolo, soon found
out about the union activity and commenced his own
campaign against the Union. He talked individually to
each of his four foremen, Sam Hardy, Joe O'Neill, Len
Hinton, and Philip Frederick. These four foremen, to-
gether with employee Gary Stewart, were discharged or
left the Company later in September and are the subject
of the alleged unlawful discharges in this case. The testi-
mony of the four foremen regarding Maiolo's conversa-
tions with them is also the foundation in support of the
alleged unlawful threats and interrogation in this case.
Maiolo, himself concedes his strong opposition, "kind of'
remembered that he threatened to close, and admitted
that he told all five employees that if they joined the
union they could not work for him.
B. Specific Allegations5
1. Joseph O'Neill (pars. (a) through (e) and 7(a) of
the complaint)
O'Neill had worked for the company since 1972. In
early September at a company jobsite, Maiolo told
s Some of the findings herein were testimonially denied by the Compa-
ny's president, James Maiolo. The credibility determinations in this case
were extremely difficult in some instances Basically Maiolo appeared to
be an honest and hardworking man trying to make a go of his business.
He had recently borrowed $100,000 to shore up his business, and the in-
tervention of the union, he perceived spelled potential disaster He
became close to desperate in the situation. He was hurt and felt that he
had been deserted by his foremen after what he considered had been a
good and close working relationship. In reality. I am certain that he hon-
Continued
884
WIIL.IAMSP'ORT PLUMHING AND HEATIN( CO., INC.
O'Neill that he knew he had been contacted by the
Union, that there was "no way" he would ever go union,
that he would rather retire. and close the shop, and that
if O'Neill did not go union he would still have a job
with the Company. During this conversation Maiolo also
asked O'Neill how he felt about the union and O'Neill
replied that the "majority rules."
On September 21, the day following the union meet-
ing, O'Neill was called to the shop office where he told
Maiolo that if he had the opportunity he would go union
and Maiolo responded that he was "quitting" as of the
following Friday and to "let [his] union buddies take
care of [him].d O'Neill responded that he was not quit-
ting, that he wanted to continue to work, and left the
office. The following Monday, September 24, O'Neill re-
ported to work and on a jobsite at or about 2 p.m., Su-
pervisor Jess Smuck "laid [him] off, more or less, and
told [him he] could make arrangements for [his] new job.
2. Leonard Hinton7 (pars. 5(f) through (j), 5(n)
through (q), and 7(a) of the complaint)
Hinton had worked for the Company since 1972. In
early September, Maiolo approached him at a jobsite and
ask him "what was going on," that indicating he knew
the Union had contacted him, and expressed some disap-
pointment that Hinton had not told him about the Union
earlier. Maiolo asked Hinton if had made up his mind,
Hinton replying that he had not. The two then discussed
benefits and Hinton stated that he was "disappointed"
with the wages and pension. Maiolo responded that he
realized the pension plan "wasn't as good as it could be,"
but indicated that given a chance he could improve the
plan. Maiolo also expressed hope that wages and the
company's contribution to the hospitalization plan could
be increased in the future. He asked Hinton if he had
been contacted by the Union and if he had made up his
mind if the union were to "approach" the employees.
Hinton replied that the Union was going to approach
them and that he had not made up his mind. As Maiolo
was leaving, he told Hinton that "no matter what" he
would not go union but would "just close up the doors
and play golf, or whatever he wanted to do," adding
that if he ever did, Hinton would not be working for him
because he would hire more experienced people direct
from the "[hiring] hall."
On September 21, the day after the union meeting,
Maiolo called Hinton into his office, explained that he
was trying to "get his foreman straightened out" so that
he would know who would be remaining with the Com-
pany, and asked Hinton if he had made up his mind
about the Union. Hinton replied that he had not, and
Maiolo requested Hinton to let him know early Monday
morning (September 24), adding that when he found out
who his "loyal" employees were he could have a nice
setup for them, or a piece of the business. Hinton report-
estly did not remember some of the remarks he made. yet in other denials
he shaded the truth by relating that he made similar topical remarks hut
with other meanings or imphlcations
I Maiolo's testimonial attitude and account of the departure of the fi'e
employees in this case was simply that since he was nonunion, and would
remain so, those ,Hho chosie to join the union had also chosen to quit
Hinton', name is imcorrectll spelled "Hillon" il the transcript
ed Monday morning as instructed, told Maiolo he had
decided to support the Union, but that he wanted to stay
with the Company. Maiolo then instructed him to report
to a jobsite, which he did, but after lunch Supervisor
Schmuck came to the jobsite and told him he was "let
go," explaining that it was "unfeasible" for him to
remain o the job talking to other men about the union."
3. Samuel D. Hardv (pars. 5(k) through (m) and
7(a) of the complaint)
Hardy had been employed by the Company since
1973. In mid-September Maiolo approached him on a
jobsite and stated he had heard rumors he was joining
the Union. Hardy replied that he had not joined at that
time, and Maiolo then stated he had $100,(X)O in the
bank, that he could close doors, retire, and play golf,
adding "I don't need this." Maiolo also told Hardy to
make the best decision he could for his family, indicating
that a lot of union people were starving. Hardy theni ad-
vised Maiolo that he thought employee Gary Stewart
should have a raise. Maiolo quickly decided against the
raise, but then reconsidered and at that time employee
Stewart walked up, whereupon Maiolo told Stewart that
he would get a raise.
The day following the union meeting, September 21,
Hardy himself went to Maiolo, told him he had decided
to support the Union, but added that he wanted to stay
with the Company and that he. thus, hoped that the
Union would organize the Company. Hardy also told
Maiolo that Stewart was going to support the Union.
Maiolo replied that he hoped Hardy had made the right
decision, indicating that he knew about the Union meet-
ing the previous evening and felt he could sue the Union
for holding an "illegal vote." Maiolo further remarked
that if it did not "work out." Hardy was "free" to come
back, and asked Hardy for a "final date." Hardy replied
that he did not have one and Maiolo then set Friday,
September 28, as his last day of work. Soon after this
conversation ended Maiolo talked with O'Neill and as
Maiolo and O'Neill were finishing their conversation,
Hardy approached and asked Maiolo if they were being
"fired or laid off or what," to which Maiolo replied,
"No, you quit." At that time Maiolo also stated that
Gary Stewart was also "finished" as of Friday, Septem-
ber 28.
The following Monday, September 24, at a jobsite Su-
pervisor Charlie Knauff arrived, gave Hardy and Stew-
art their final paychecks and told them they were being
laid off. Hardy asked why and Knauff replied that
Maiolo "can't have any union employees on the payroll."
Hardy then asked what to "put down" on the unemploy-
ment card and Knauff suggested "lack of work."
4. Philip Frederick (par. 7(b) of the complaint)
Frederick had worked for the Company for over 6
years. In mid-September on a jobsite, Maiolo talked to
him and explained that there would be a decision coming
up in his life and that he should make the best one for
himself and his family. On September 20, 5 or 6 days
' Schmuck as the compan's Sice president and general manager
885
DECISIONS OF NATIONAL LABOR REILATIONS BOARD
later, he attended the union meeting and the following
day Maiolo telephoned him at a jobsite and asked him
what his intention was, whether he was "going to leave
or stay," and Frederick replied that he had not made up
his mind. On September 26, Maiolo called him at the
jobsite regarding shifting an employee from one site to
another, and at that time Frederick told him that he had
decided to support the Union and that he would "work
the week out for him or until the union came to work or
whatever happened." At this time Frederick was aware
that other foremen had left or "quit" because of joining
the Union. Maiolo replied that he could not "legally"
have a union man on the payroll and that day would be
his last. Frederick related that Union Organizer Payne
had told him that if he joined the union he would not
necessarily stay with the company and Frederick himself
indicated that there was no doubt in his mind that, by
joining the union, he did "quit."
C. Concluding Analysis
Maiolo made it clear that no union member could
work for the Company and that he would close his busi-
ness rather than entertain or recognize union representa-
tion of his employees. However, the law grants the em-
ployees this choice, and not the employer. The legitimate
choice of the employees was replaced with that of either
staying without a union, or leaving. I find little or no dis-
tinction in this case between discharge, constructive or
otherwise, and quitting for those who joined and sup-
ported the union. The fact that the employees knew or
suspected the consequences of their union support atta-
ches no legitimacy to their departure, nor does it exoner-
ate responsibility for the cause of the choice. Maiolo, by
his conduct and actions removed and excluded from the
employees a basic right granted to them in Section 7 of
the Act, the right to choose or not to choose union rep-
resentation at their workplace. The essence of this case is
the denial of that right. Once having made this decision
and taken this position, Maiolo placed himself on a
course which led almost preliminarily and inescapably to
a myriad of violations of the Act regarding his longtime
and valued foremen, involving improper interrogation
and threats, in a effort to find out their position, and to
dissuade them from union support. Maiolo, I find, dis-
covered the union activity sometime prior to mid-Sep-
tember. He wanted to keep his foremen and his key
people if at all possible, but ultimately not at the cost of
going union. On or about September 14, he talked to all
of them (Frederick by phone). After this the die was
cast. He learned about the September 20 union meeting
and straw vote and the following day he commenced his
canvass, which proved to be highly disappointing. He
had lost, and the reality of the situation became so appar-
ent over the weekend that he accelerated the departure
of O'Neill, Hinton, Hardy, and Stewart on Monday.
With only one minor exception, I find and conclude that
the Respondent violated the Act as alleged in the com-
plaint. 9
9 I find a lack of evidence in the record to support the allegation in
par. 6 of the complaint that on or about September 21, Supervisor Knauff
improperly solicited employee complaints and grievances, and promised
employees improved terms and working conditions
Upon the following foregoing findings of fact and ini-
tial conclusions and upon the entire record, I hereby
make the following:
CONCUSIONS ot LAW
i. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Charging Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
on or about September 14, by the following acts or ac-
tions:
(a) Creating the impression of surveillance of union ac-
tivities of its employees.
(b) Threatening employees with closure of its shop or
business if they selected the Union as their collective-bar-
gaining representative.
(c) Interrogating employees about their union sympa-
thies, activities, and support.
(d) Threatening employees with discharge if they sup-
ported the Union as their collective-bargaining repre-
sentative.
(e) Promising an employee with improved benefits and
higher pay if said employee and other employees did not
support or select the union as their collective-bargaining
representative.
(f) Promising an employee a wage increase in order to
dissuade him from supporting the Union.
4. The Respondent violated Section 8(a)(l) of the Act
on September 21, 1979, by the following acts or actions:
(a) Creating the impression of surveillance of the union
activities of an employee.
(b) Interrogating an employee about his union sympa-
thies, activities, and support.
(c) Threatening to discharge an employee if he sup-
ported the Union as the collective-bargaining agent of
the employees.
(d) Promising an employee an interest in the business
of the Respondent if said employee abandoned his sup-
port for the Union.
5. The Respondent violated Section 8(a)(3) and (1) of
the act on September 24, 1979, by discharging employees
Samuel D. Hardy, Joseph O'Neill, Gary Stewart, and
Leonard Hinton, and on September 26 by discharging
employee Philip Frederick, because of their union sup-
port.
6. The unlawful conduct concluded in paragraphs 3, 4,
and 5, above, and found herein, affected commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not otherwise violated the Act,
that other than the misconduct concluded in paragraphs
3, 4, and 5 above.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act, I shall recommend that it be
X86
WILLIAMSPORT PLUMBING AND HEATING CO, INC.
ordered to cease and desist therefrom,"' and that it take
certain affirmative action designed to effectuate the poli-
cies of the Act, including the posting of an appropriate
notice. I shall also recommend that the Respondent be
required to offer Samuel D. Hardy, Joseph O'Neill,
Leonard Hinton, Gary Stewart, and Philip Frederick im-
mediate reinstatement to their former positions of em-
ployment or, if those jobs no longer exist, to substantially
equivalent positions of employment and to make them
whole for any and all losses of wages and other benefits
they may have suffered as a result of their unlawful dis-
charges with such losses to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest as set forth in Florida Steel Cor-
poration, 231 NLRB 651 (1977)."
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Williamsport Plumbing and Heating
Co., Inc., Williamsport, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their union ac-
tivities.
(b) Creating the impression that management is engag-
ing in surveillance of union activities of employees.
(c) Coercively interrogating employees concerning
their union sentiments and activities.
(d) Telling employees any efforts to engage in collec-
tive bargaining through a union would be futile.
(e) Threatening to discharge employees in retaliation
for their union activities.
(f) Offering employees increased wages, other benefits,
or an interest in the business in order to wean them away
from supporting the Union.
10 Because of the seriousness of the violations found herein, including
the discharges, I shall recommend that the additional "cease and desist"
provision of m) Order he of the broad variety, which I feel to be appro
priate and necessary in this case. Cf. Hickmotr Fo)ds. Inc.., 242 NRB
1357 (1979)
' See, generally, Isis Plumbing &d eating Co.. 138 NLRB 71t (6h2)
12 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 proided
in Sec. 10248 of the Rules and Regulatilons. be adopled h the Board and
become its findings, conclusions, and Order. and all objections thereto
shall he deemed waived for all purplxses
(g) Threatening plant closure if the employees selected
or became represented by the Union.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist a labor orga-
nization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of
the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Samuel D. Hardy, Joseph O'Neill, Gary
Stewart, L.eonard Hinton, and Philip Frederick immedi-
ate and full reinstatement to their former positions or, if
such positions no longer exists, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges previously enjoyed.
(b) Make whole Samuel D. Hardy, Joseph O'Neill,
Gary Stewart, Leonard Hinton, and Philip Frederick for
any losses of pay or benefits they may have suffered by
reason of the Respondent's discrimination against them in
the manner provided in the Remedy section of this Deci-
sion.
(c) Post at its office and facility and shop in William-
sport, Pennsylvania. the attached notice marked "Appen-
dix."ta Copies of the notice, on forms provided by the
Regional Director for Region 4, after being duly signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days there-
after, in conspicuous places, in and about work areas and
other areas as indicated above, including all places where
notices to said employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 4, within
20 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
It IS FURTHER ORI)ER:I that the complaint against the
Respondent be, and it hereby is, dismissed insofar as it
alleged unfair labor practices not specifically found
herein.
" In the event that this Order is enforced by a Judgment of a nited
States Court of Appeals, the words in the notice reading "Posted b5
Order of the National [tabor Relations Board" shall read "'Posted Pursu-
ant Io a Judgment of the United States Court of Appeals Fnforcing in
Order of the National abor Relations Board "
887