Heights Funeral Home, Inc.

HEIGHTS FUNERAL HOME, INC. 723 ica, or any other labor organization of our employees , by discriminating in any manner with regard to their hire and tenure of employment , or any term or condition of employment. WE WILL offer to George Baker, James Mattingly , Richard Blair, Leroy Car- ney, and Robert Heightcthew , immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, in accordance with the Recom- mended Order of the Trial Examiner's Decision. WE WILL make whole George Baker, James Mattingly , Richard Blair, Leroy Carney, Robert Heightchew, and Alfred Moore, for any loss of pay suffered by them by reason of the discrimination practice against them , in accordance with the Recommended Order of the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of Gen- eral Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America. KENTUCKY NEWS INCORPORATED, Employer. Dated------------------- By------------------------------------------- (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 pro- visions, they may communicate directly with the Board 's Regional Office, Room 2023, Federal Office Building, 550 Main Street , Cincinnati, Ohio 45202, Telephone 648-3627. Heights Funeral Home, Inc. and Jackson J. Matthews Heights Funeral Home, Inc. and Tom M. Randolph. Cases 23- CA-2127 and 2127-2. June 20,1966 DECISION AND ORDER On April 14, 1966, Trial Examiner Paul Well issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respond- ent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 159 NLRB No. 69. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision and the entire record in these cases, including the exceptions and briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following exceptions, modifications, and additions. The Trial Examiner recommended that the complaint be dis- missed insofar as it alleged a 'violation of Section 8(a) (3) by Respondent's discharge of employee Jackson J. Matthews on Au- gust 7, 1965. Although he regarded the reasons given by Respondent for Matthews' discharge as pretextual, the Trial Examiner con- cluded there was insufficient evidence to establish that the termina- tion was unlawfully motivated. We do not agree with this conclusion. The record reveals that Matthews commenced participation in the organizing campaign on July 6, about 1 month before his discharge, and thereafter, while at work, talked to fellow employees about the Union in person or by telephone about every other day.2 About July 15, 1965, Respondent's agent, Barber, posing as an insurance counselor making a. survey of the employees' sentiments with respect to hospitalization and insurance benefits, questioned Matthews as to whether the Respondent "ought to have an organization" or "a guild." In the ensuing discussion, Matthews indicated his dissatis- faction with employment conditions. Soon thereafter, Respondent's President, Waltrip, revealed his awareness of Matthews' union sym- pathies when he called Matthews into his office and pointed out that he knew more about the Union than any of the employees thought. Waltrip then threatened to discharge Matthews, and said he would discharge all his employees before Respondent would ever sign a contract with the Union. On August 7, 1965, less than 2 weeks after this discussion with Waltrip, Matthews' employment was terminated under circumstances fully discussed in the Trial Exam- iner's Decision. In light of Respondent's union animus, demon- strated by its numerous other unfair labor practices, its unlawful interrogation and intimidation of Matthews, and the timing of the discharge, we are convinced that Respondent either knew of Mat- thews' organizing activity or believed that he favored unionization. 1 Respondent excepted to the Trial Examiner 's denial of its request to relitigate the supervisory status of Matthews. As such status was determined in the representation proceeding before the Regional Director and review thereof was denied by the Board, we agree with the Trial Examiner's conclusion for the reasons stated in Harold Garlick and Morris Gorlick, Co-Partners, d/b/a Thrifty Supply Company, etc, 153 NLRB 370. How- ever, since it is unnecessary to a resolution of the issue before -us, we do not pass upon his further discussion of Wagner Industrial Products Company, Inc., Case 30-CA-183, or his interpretation of the specific language of Rule 102 .67 of the Board's Rules and Regulations. 2In commenting on the lack of evidence of Matthews' union activity, the Trial Examiner apparently overlooked this record testimony. However, it is uncontradicted and lends meaning to comments thereafter made by Respondent's representatives to Matthews, as well as to President Waltrip's comment at the representation hearing the day after Mat- thews' discharge that he bad "those phones" tapped HEIGHTS FUNERAL HOME, INC. 725 In an attempt to conceal the fact that Matthews' discharge was motivated by such antiunion considerations, Respondent offered clearly pretextual reasons. Accordingly, we conclude that Respond- ent discriminatorily discharged employee Jackson J. Matthews in violation of Section 8(a) (3) and (1) of the Act, TI-i E REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has further been found that the Respondent has discriminated against employee Jackson J. Matthews by discharging him in violation of Section 8(a) (3) and (1) of the Act. We shall therefore order the Respond- ent to offer the above-named employee immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of this discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less any net earnings during such period, in accordance with the formula pre- scribed in F. W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum, to be computed in accordance with the formula prescribed in Isis Plumbing cC Heating Co., 138 NLRB 716. ADDITroN,AL Coxci.usIOI of LAW Upon the basis of the foregoing findings of fact and the entire • record in these cases, we hereby make the following additional con- clusion of law, relettering present paragraph 4 to 5: "4. By discharging Jackson J. Matthews for discriminatory rea- sons, Respondent has engaged in an unfair labor practice in viola- tion of Section 8(a) (3) and (1) of the Act." [The Board adopted the Trial Examiner's Recommended Order with the following modifications: Add the following as paragraph 1(a) of the Trial Examiner's Recommended Order and reletter the following paragraphs consecutively : [" (a) Discouraging membership in or activities on behalf of Gen- eral Drivers, Warehousemen and Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation, by discharging any employee or discriminating against them in regard to hire or tenure of employment, or any term or condition 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, for engaging in union or other concerted activities for the purpose of collective- bargaining or other mutual aid or protection." - [2. Delete the following paragraph 1(g) of the Trial Exam- iner's Recommended Order and from the seventh indented paragraph of the Trial Examiner's Appendix : ["... except to the extent that such rights may be affected by the provisos in Section 8(a) (3) of the Act, as amended." [3. Add the following as paragraphs 2(a), (b), and (c) to the Trial Examiner's Recommended Order and consecutively reletter the present 2(a) and (b) as 2(d) and (e) : ["(a) Offer to Jackson -J. Matthews immediate and full reinstate- ment to his former or substantially equivalent position without prej- udice to his seniority or other rights and privileges previously en- joyed, and make him whole for any loss of pay he may have suf- fered by reason of the discrimination against him, in the manner and in accordance with `The Remedy' section of the Board's Deci- sion, outlined above." ["(b) Notify employee Jackson J. Matthews, if presently serving in the Armed Forces of the United States, of his right to full rein- statement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." ["(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, personnel records and reports, and all other records necessary to analyze the amount of backpay due Jackson J. Matthews under the terms of this Order." [4. Add the following as the first paragraph to the Appendix : [WE WILL NOT discourage membership in or activities on be- half of General Drivers, Warehousemen and Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discharging any employee or discriminating against them in regard to hire or tenure of employment, or any term or condition of employment, for engaging in union or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. [5. Add the following as the seventh indented paragraph of the Appendix : [WE , WILL offer employee Jackson J. Matthews immediate and full reinstatement to his former, or substantially equivalent position. without prejudice to his seniority or other rights and HEIGHTS FUNERAL HOME, INC. 727 privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. [6. Add the following immediately above the signature line at the -bottom of the Appendix : [NoTE.-We will notify employee Jackson J. Matthews, if pres- 'ently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, heard before Trial Examiner Paul Weil, at Houston , Texas, on January 31 and February 1, 1966, pursuant to charges filed August 9 and 13, 1965, an order consolidating cases and a complaint issued October 29, 1965, and amended during the course of the hearing , presents the questions whether Heights Funeral Rome, Inc., herein called Respondent or the Employer , violated Sections 8(a)(1) and (3 ) of the National Labor Relations Act, as amended, together with various procedural issues detailed below. The complaint, charges, order of consolidation, and notice of hearing were duly served on the parties . The complaint was amended at the hearing by the deletion of an allegation as to the discharge of one employee.' In its answer Respondent conceded certain facts as to its business operations, but denied all allegations that it had committed any unfair labor practices. Upon the entire record and after due consideration of the briefs filed by Respond- ent and the General Counsel , I make the following: FINDINGS OF FACT I. THE OPERATIONS OF RESPONDENT Respondent is a Texas corporation engaged at Houston , Texas, in the opera- tion of funeral homes and related services. At the time of the occurrences con- sidered herein Respondent operated three funeral homes, referred to- herein as Heights, Hyde Park, and Waltrip, respectively. The complaint alleges and the answer admits that in the last preceding calendar year , a representative period, the business produced gross revenue in excess of $500 ,000, purchased from directly out of the State of Texas goods , materials, and supplies valued in excess of $31,000, received gross revenues exceeding $47,000 for its services in connection with the shipment of bodies out of Texas and $5,600 for its services in connection with bodies shipped to it from out of Texas. I find that Respondent has been engaged -in activities affecting commerce, at all material times herein, within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The pleadings established and I find that General Drivers , Warehousemen and Helpers Local Union No. 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2 (5) of the Act. 'In posthearing correspondence concerning service of the brief of Respondent , its coun- sel stated that it was his impression that Randolph 's charge had been withdrawn , where- 'fore he had not dealt with it in his brief . The record is clear that Randolph 's name was withdrawn as an alleged discriminatee , but to the extent that his charge , and his evidence given in support of the complaint relates to matters other ' than his discharge, he remains a party. '- ' - , 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE UNFAIR LABOR PRACTICES A. Background During the month of June 1965, the Union filed with the Regional Director of the Board'at Houston; Texas, petitions seeking elections among certain employees of the Employer, and certain employees of George H. Lewis & Sons, Inc., another funeral enterprise located in Houston. The two petitions were consolidated for hearing and heard by an officer of the Regional Office commencing on July 16, 1965, recessed and recommenced on August 4 continuing on August 5, 6, 11, 12, and 13, all in 1965. On August 7, 1965, at which time the representation hearing was recessed, Respondent discharged Jackson J. Matthews, the Charging Party in Case 23-CA- 2127, who thereupon filed his charge. When the representation hearing resumed, the Union, the petitioner therein, took the position that Matthews was a member of the unit, and the Employer contended that he had been a supervisor. The mat- ter of Matthews' supervisory status was therein litigated at considerable length. The Regional Director issued his decision in the representation matter on Octo- ber 30, 1965, holding, inter alia, that Matthews was an employee, rather than a supervisor, and including him in the unit. Respondent filed a request for review of the Regional Director's decision on various grounds, including the contention that the unit placement of Matthews was erroneous. By teletype dated Novem- ber 24, 1965, the Board denied the request for review on the ground that it raised no substantial issues warranting review. On December 1, 1965, the election was conducted by a member of the Regional Office staff, Matthews appeared, was challenged by Respondent and voted a challenged ballot. The employees voted against representation by the Union by a margin of 30 to 1. No objections to the election were filed. B. The alleged interference, restraint, and coercion The consolidated complaint alleges, in essence, that Respondent, commencing on or about June 15, 1965, engaged in a campaign including (1) surveillance of employees' union activities; (2) interrogation by its President Robert Waltrip, and by its agent, Barker; (3) threats of discharge of employees; (4) solicitation of the employees to withdraw their designation of the Union as their bargaining representative, both by Waltrip and by one Wayne Denker, alleged to be a super- visor and agent of Respondent; (5) resquests of employees to solicit other employ- ees to withdraw their designation of the Union as collective-bargaining representa- tive; (6) assistance to employees in withdrawing; (7) changing a condition of employment to the advantage of the employees; and by the discharge of Matthews. Respondent by its answer denied all allegations of 8(a)(1) conduct, denied the agency of Denker, and the existence of an agent, Barker. The evidence reveals that Respondent became aware of the Union's organi- zational efforts when it received a copy of the Union's petition on or about June 19, 1965. As Robert Waltrip succinctly put it, Respondent fought it "real hard," which he explained as using "whatever means we had at our disposal to oppose the organization." To this end Waltrip "talked to everybody on the place at one time or another about the union activity" although normally he stated, he was too busy to involve himself in the day-by-day activities of the Funeral estab- lishments. It is the contention of the General Counsel that in the course of these talks, Respondent, through its President and agent Waltrip, committed various of the 8(a)(1) violations alleged.2 I shall consider first those allegations in which he was directly concerned. C. The alleged surveillance by telephone monitoring At the offset of the hearing General Counsel called by subpena for the produc- tion of all tape recordings and transcripts of such made during the months 2 Throughout the hearing in this matter Respondent, with the greatest consistency objected to'the introduction of any evidence in support of the allegations of independent 8(a) (1) conduct on the stated ground that, the Employer having "won" the election, these matters should have been raised by proper protest to the election; the Union not having filed objections based on these activities , the General Counsel is now foreclosed from litigating them as unfair labor practices , the matters being moot HEIGHTS FUNERAL HOME, INC. 729 immediately preceding the election . Respondent, while professing its willingness to comply with the subpena to the extent that it called for relevant material , denied the existence of any tape recordings or transcripts of such . President Waltrip, called to the witness stand , and cross-examined by General Counsel admitted that on one and possibly two occasions during the course of the representation hearing in August 1965 , he had stated to Attorney James P. Wolf, counsel for the Union, that his employees, and he himself, had been receiving telephone calls of a threatening nature and that "figuring the best offense is the best defense (he) told Mr. Wolf 'Well now we are having these telephone calls recorded and I just don't want this to happen again ' " On further examination Waltrip admitted that he could have said , and believed he said "We have taped every call coming to the funeral home " On the same point Matthews testified that he was present in the courtroom in which the representation hearing took place "when Mr. Waltrip came into the room that morning and asserted before everybody in the courtroom . that he had those anonymous calls and that he had had those phones tapped for the last three and a half months." At the hearing, Waltrip denied that Respondent had in fact tapped or monitored any telephone calls. General Counsel , in the face of Waltrip's flat denial, made no further effort on behalf of his subpena, and the record contains no evidence in support of the allegation of surveillance . Accordingly, I shall recommend that the complaint shall be dismissed insofar as this allegation is concerned. This, however, does not dispose of the matter . The Board has frequently found that whether or not surveillance of employees union or organizational activities is actually undertaken by an employer, for an employer to create the impression that he is engaged in such surveillance is likewise coercive and is reasonably cal- culated to restrain the employees in their organizational efforts. In the instant case the Employer would have engaged in surveillance and thus interfered with the employees self-organizational efforts if he had "bugged" the telephones for the purpose of listening in on their conversation regarding the organizational cam- paign . (Leggett's Department Store of Princeton , West Virginia, Inc., 134 NLRB 1171; International Trailer Company, Inc., and Gibraltar Industries, 133 NLRB 1527.) His activities in stating to employees that he was doing so are no less apt to interfere with the employees , especially under the circumstances that some of the employees in the unit not only were employed at the funeral home, but lived there, so that there is no reasonable way for them to have conducted any organizational campaign other than at the home Such interference has long been held by the Board to be violative of Section 8(a)(1) of the Act (Stoddard-Quirk Manufacturing Company, 138 NLRB 615) and I find that under the circumstances of this case it is violative and requires remedial action ; I shall so recommend. I am aware that the issue was not pleaded as a separate unfair labor practice; however, the evidence, as set forth above, was fully litigated at the heading; the Respondent, in fact, relying on the same evidence in controverting the allegation that it engaged in surveillance . Accordingly , the issue is treated as if it had been raised in the pleadings . See Rule 15(b) FRCP ; New England Web, Inc., 135 NLRB 1019 reversed on other grounds , 309 F.2d 696 (C.A 1). D. The alleged threats and interrogation by President Waltrip The General Counsel alleged that on two occasions , July 15 and 26, 1965, Respondent's president, Waltrip, interviewed employees, and during the course of such interviews interrogated them, threatened to discharge employees if they continued to engage in union activities, and urged the employees to solicit the other employees to request withdrawal of their union cards. The employer gen- erally admits interviewing all the employees, and specifically the two as to whom the allegations pertain. The accounts of the employees concerned differ somewhat from those of Waltrip, but in sienficant respects are consistent. The later of the conversations complained of took place in Waltrip's office between Waltrip and Charging Party Matthews. According to Waltrip, they had a lengthy discussion about the situation at night during which Matthews brought up the subject of the Union, saying, in effect that he wanted Waltrip to know that Matthews had nothing to do with the Union, he had heard that some people had accused him of being involved in the Union, and that he had repeatedly told the people at the funeral home he knew it was no good for them, and he was in no way asso- ciated with it. Waltrip stated that he told Matthews that regardless what the 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity was he should not worry about it, that Matthews was a supervisor, and it made no difference whether he was involved or not because he could not vote. Waltrip suggested that Matthews dismiss the matter from his mind and concen- trate on the job at hand . Thereafter they discussed the conditions about which Waltrip was allegedly concerned , and parted amicably. The testimony referred to above was delivered almost entirely in conclusionary terms by Waltrip, who was called by the General Counsel and cross-examined' under Rule 43 (b). When the General Counsel , attempted to bring the wetness to more specific terms, the witness became argumentative and evasive . Ultimately, Waltrip testified that Matthews walked into his office, Waltrip said something about how he was displeased or disappointed with him, and Matthews immediately "goes into a statement about that he wants me to know he has nothing to do with the union . . I did tell him that I knew more about what was going on than the people thought I did and . I told him I could fire him . I said on the union matter that I would fight it real hard and that is a matter of record too." Waltrip denied saying "I will take this to the Supreme Court and if necessary I will fire everybody in this place, and furthermore-innocent or guilty." Later in, his testimony Waltrip volunteered the following : "I believe I asked Mr. Matthews to check with some of the people and see what he might be able to do to have some of the employees who had signed cards, who might not have known what they were signing, to withdraw their cards and explain the situation to them," to which Matthews responded "that he did not have anything to do with it him- self and he didn't know anyone who did ... . Matthews, testifying about the same conversation , substantially agreed with the version of Waltrip, adding that Waltrip stated "I know more about unions and union activities than anybody thinks I know." He also stated that Waltrip said, "Well, I will fire everybody on the place, the innocent as well as the guilty- I have got the funeral directors of Texas behind me." Matthews further testi- fied than in response to Matthews' statement that Waltrip did not have to worry about the Union until he got his contract , Waltrip said "What do you mean, con-, tract?" Matthews responded , "Well, contract for the working conditions." Wal- trip then said, "Well, I'll never sign a contract . I will fight this thing. I will take it to the Supreme Court before I will sign a contract." About the subject of the union cards Matthews quotes Waltrip as saying, "You are in a better posi- tion than anyone down there, how about you trying to get some of these boys to withdraw their cards." Matthews' testimony was very sketchy, as to the context in which the various statements he reported occurred . Waltrip's argumentative, evasive, and disjointed accounts of the portion of the conversation relating to the union organization, particularly when it is contrasted with his fulsome report and distinct recollection of the remainder of the conversation, which dealt with factors relating to the ulti- mate discharge of, Matthews , and which will be treated below, scarcely enhances his credibility. Based on those factors, as well as upon my observation of the witnesses on the witness stand, and giving due consideration to the effect upon the recollection of any witness of the passage of some 6 or 7 months between the occurrence and the testimony regarding it, I am persuaded , and I find that Wal- trip commenced the conversation by expressing his displeasure with Matthews. Matthews, concluding that Waltrip was referring to reports that Matthews was involved in the union organization, stoutly denied that such was the case. Waltrip then pointed out that he knew more about the Union than anybody thought he did, he reminded Matthews that he could fire him, which Matthews acknowledged, and stated that he was prepared to fight the Union real hard. Matthews then stated that he need not worry until the Union had a contract to which Waltrip responded, in substance , that he did not know what a union contract was. Mat- thews explained that he meant a contract covering the employees working condi- tions, and Waltrip replied that would, never sign such a contract, and that he would fight it all the way to the Supreme Court. Waltrip stated that he would discharge everybody on the place before he would sign a contract. I further believe, and find, that at this point , that Waltrip, believing Matthews' assertion that he had had nothing to' do with the union organization , attempted to enlist him in'what had already become a widespread campaign by Respondent' to get the employees to withdraw or disavow their union authorization cards upon- which the petition for the election had been predicated . I credit Matthews' ver- sion of Waltrip's statement, "You are in a better position than anyone down there, how about you trying to get some of these boys to withdraw their cards." A number of the statements made by Mr. Waltrip would have the effect of interfering HEIGHTS FUNE11AL HOME, INC. 731 witn, restraining, or coercing employees , if they were made to, or in the presence of employees . Waltrip's statement that he could fire Matthews , in context, clearly referred to a possibility of Matthews engaging in union activity, and his threat to discharge all the employees if the Union , required him to sign a contract are both too clearly coercive to require him to sign .-a -contract are -both --too clear-ly coercive to require discussion .- Similarly his statement that he - would never sign a union contract is of a nature frequently found violative of Section -8(a)(1-). See Reeves Broadcasting Development Corporation ( WHTN-TV), 140- NLRB 446. Finally, the request to Matthews that he attempt to get the employees to withdraw their authorization cards is designed to interfere with employees' self- organizational rights. See Primrose Super Market of Salem, Inc., 148 NLRB 610. However, the Employer contends , Matthews is a supervisor, and therefore, state- ments made to him in the course of a discussion at which no employees were present could not have a violative effect. General Counsel , on the other hand, maintains that the issue of Matthews' supervisory status was litigated at the representation proceeding , decided by the Regional Director, was the object of the Employer 's request ' for review, denied by the Board , and therefore under Section 102 .67(f) of the Board's Rules and Regulations may not be relitigated in the instant proceedings . Having in mind the nature of the Board's decisions on this point, I declined to permit relitigation of the issue except insofar as Respondent had newly discovered evidence, or evi- dence that the position of Matthews had changed from that he had occupied at the time of the hearing . As to the latter, it is obvious that his was impossible, since Mathews' discharge preceded the litigation of the "R" case. However, as to the former, Respondent's counsel averred that he had newly discovered evi- dence. This I proposed to take and consider, until it became apparent that the evidence which counsel proposed to adduce was evidence of employees who were on the payroll at the time of the "R" hearing, available to testify, to the Employ- er's knowledge. Counsel contends , however, that in a technical sense this is newly discovered since it was unavailable to him during the representation hear- ing. In argument on the point he contended that the witnesses were unavailable to him because he could not put them on the witness stand without knowing what their evidence might be, and he could not inquire of them without risking being charged with 8(a)(1) conduct , even though he did not ask them anything about their union activities I rejected this position, which appears clearly specious No evidence on the subject was accepted ; Respondent's offers of proof are on the record. Much has been written in the recent past on the issue whether Section 102 67(f) is applicable to situations other than Section 8(a)(5), where prior representation proceedings have resulted in the disposition of issues later raised in 8(a )( 1) and 8(a)(3) litigation . Trial Examiner Leedom, in his Decision in Wagner Industrial Products Company, Inc., Case 30-CA-183, TXD-89-66, gives an excellent review of the authorities , which, as he states , are in confusion, with the General Counsel taking conflicting positions in two recent cases, Wagner, and Harold Gorlick and Morris Gorlick, Co-Partners, d/b/a Thrifty Supply Company, etc., 153 NLRB 370. Trial Examiner Leedom views the conflict as having arisen from the nonspecific language of the Rule and a tendency to confuse the rule that applied in Section 8(a)(5) proceedings , with other complaint cases. I shall not burden this Deci- sion with another full scale analysis . My colleagues have thoroughly explored the field in, among others, the following cases ; Southern Airways Company 124 NLRB 749; Leonard Niederriter Company, Inc., 130 NLRB 113; Rish Equipment Com- pany, 150 NLRB 1185 , Gorlick (supra ) and Wagner (supra ), as well as in the cases therein cited . I shall content myself with saying that as a mattes of philosophy I find myself in general agreement with Trial Examiner Leedom's opinion that the Rules should provide that, in cases other than Section 8(a)(5), issues raised, or that could have been raised in preceding representation hearings may be relitigated in unfair labor practice hearings . On the other hand I do not share his opinion that the Rule, as it appears is nonspecific or unclear . The Rule is as follows 102.67 (f) The parties may, at any time, waive their right to request review. Failure to request review - shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding , any issue which was, or could have been, raised in the representation proceeding . Denial of a request for review shall constitute - an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related unfair labor practice proceeding. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The key work appears to be related The Trial Examiner in Wagner would hold, in essence, that the only unfair labor practice proceeding which can be said to be related to a representation case is the subsequent Section 8(a)(5) in which the duty to bargain, raised by certification, is enforced. I believe that if the Board's purpose in promulgating the Rule was such, it would have been easy to use appropriate language, that would clearly so limit the action of the section. From the fact that the much less exact word related was used, I can deduce only that the Board did not choose so to limit the action of the section. There is ample justification for this view, in my opinion. The actions of the parties, par- ticularly with reference to a- union's organizational attempt, must frequently be circumscribed by their knowledge of the unit determinations resulting from the decision in the representation case. As in the instant case, whether an employer can safely discharge an employee may very well depend on his placement in the unit. Again, as in the instant case, whether the acts of an individual in the pre- election campaign are attributable to the employer, depends on the unit placement of the individual. All the parties should be able to act on the presumption that the Board, once having spoken, will not again litigate the issue, with the ever- present possibility that the decision the second time will differ from the first, to the disadvantage of all parties. It is not enough that the cited rule may be disadvantageous, or may to some extent do violence to the statutory scheme. In Wood, Wire and Metal Lathers Internation Union (Acoustical Contractors Association, of Cleveland), 119 NLRB 1345, a similar argument had been made that the rules were inconsistent with the statutory scheme and intent. The Board apparently agreed, but nevertheless refused to ignore the rule or to vitiate it by a strained construction inasmuch as to do so would not only do violence to the specific provision of the Administrative Procedure Act (5 U.S.C.A. 1001, et seq ) but would result in unfairness in the administration of the Act. The Board there pointed out that the remedy should be found in changing the rule rather than distorting it. The argument is no less applicable here. If the Board is of the opinion that relitigation should be per- mitted in all but 8(a)(5) cases, it could easily fashion the rule to that end, and after due notice promulgate it It has not done so, and in my opinion, Section 102 67(f) applies in the instant situation. Accordingly, I did not permit the re- litigation of Matthews' supervisory status, and I find, in accordance with the Regional Director's Decision that Matthews was at the relevant times an employee within the meaning of the Act. Therefore the statements to Matthews, set forth above, constitute interference with, restraint, and coercion of employees in the exer- cise of their organizational rights, and violate Section 8(a)(1) of the Act. The earlier of the conversations complained of took place on or about the mid- dle of July, 1965, between President Waltrip and Tom M. Randolph. Again, the accounts of the conversation are substantially similar when they are pieced to- gether, but with important variations. Both participants agree that during the conversation Randolph assured Waltrip that he had not signed a union authoriza- tion card, but Randolph testified that Waltrip asked him whether he had done so, and Waltrip denied having done so. In view of the statement by Waltrip that he had talked with each of the employees about the Union, and his stated diffi- culty in recalling and distinguishing the various conversations, I credit Randolph in this regard. This is consistant with the obvious purpose of Respondent to seek out the union supporters and get them to withdraw their cards, evidenced not only by the conversations here under discussion, but by that with Matthews, dis- cussed above, and by conversations with employees Kopp, who testified that Wal- trip called him on the telephone and asked, during the conversation, "By the way, have you heard anything about the union9 . I am talking about since you were at Heights . . Well, if you do, let me know." Also Kopp reported the following colloquy with Waltrip, 2 or 3 weeks after the first: Waltrip: "I would like to see you a minute," and I stepped out of the door, and he had a big smile on his face, and he said, "I am a little disappointed in you." And I said, "Mr. Waltrip, what do you mean'" He said, "Well, I talked to you the other night, asked you if you knew any- thing about this union talk, and so forth, and you told me no." And I said, "Well, I don't." So he told me, He said, "I have it from reliable sources that you signed a card." And I said, "Well, I did. I still don't know anything about the Union. You didn't ask me if I signed a card. I don't know anything about the Union, but I signed a card. I didn't read it, but I signed a card." HEIGHTS FUNERAL HOME, INC. , 733 And he said, "Well, I'm a little disappointed in you . We have been friends through the years, and I am a little disappointed in you." And I said, "If I had read it I probably wouldn 't have done it. And if there is anyone I don't want disappointed in me it's you because you have been a friend to me but," I said , "I have signed it and there is nothing I can do." And he said, "Well there is one thing you can do." And I said, "What? Tell me." And he said, "No, I am not telling you, but you said you would do some- thing if you could, and you can."' And I said, "What is it?" And he had a smile on his face, and I asked him what I could do, and he said, "You can withdraw it." I made it a point, myself, to find out the next day how to do it, and I did it on my own, I came down here and withdrew it. Waltrip stated that he asked Randolph to talk to employees that he knew that did not understand what the situation was and Randolph was in a position to point that out to certain people that might not have understood what they were signing in order for them to know exactly what the situation was. Randolph, on the other hand, stated that Waltrip said , "Well, if you could get and talk to some of these people and get them to withdraw them, I think it would do, would whip this." I credit Randolph's version , especially in view of the testimony of Kopp, above- referred to, that Waltrip took a similar line with him and also asked him to seek to have the other employees withdraw their cards . There is no issue whether Ran- dolph was a supervisor. Accordingly, I find that the interrogation of Randolph whether he had signed a union card , the request that he attempt to get other employees to withdraw authorization cards and Waltrip's threat , related by Ran- dolph in the same conversation , that, "you know I can replace every employee I have and I will do so if it is necessary ," as to which I credit Randolph, are, each of them, reasonably calculated to interfere with , restrain, and coerce employees in the exercise of their protected rights and violate Section 8(a)(1) of the Act. E The Denker meeting The General Counsel alleges that Wayne Denker conducted a meeting of the employees at the Employer's place of . business , at which he stated to the employ- ees that it would be better for all of them if they withdrew their union cards; informed them that they could take time out for the purpose of withdrawing their cards and stated that those who had signed union authorization cards could go to Respondent's office if they so desired and obtain help in withdrawing their cards. The Respondent disclaims knowledge about any statements by Denker and further disclaims any liability for Denker's action. Denker is alleged in the complaint to be a supervisor and an agent of the Employer. Respondent contended that Denker's supervisory status had been liti- gated in the representation hearing, although admittedly no decision thereon was made by the Regional Director . General Counsel chose to rely on evidence that Denker was an agent of Respondent whether or not he was a supervisor. The theory of the General Counsel as expressed at the hearing, was twofold ( 1) that Denker was specifically held out by the Employer to be his agent prior to the occurrence of the meeting and (2 ) that Respondent by its actions prior to and after the meeting, effectively condoned and ratified Denker's actions so as to make itself liable for Denker's actions. Denker testified that after the commencement of the union organization, while he was on vacation , he made a trip with Waltrip to a ranch recently purchased by Waltrip, during the course of which he and Waltrip had a discussion concerning the Union . Denker professed to have no recollection about this discussion other than it concerned the Union in part. Thereafter, within a few days , the Employer, Waltrip, called a meeting of all employees at which Waltrip was present, and at which General Manager Landrum stated to the employees , "that he was going to depend on me to be his right-hand , that is all he was going to depend on me to help him , be his right-hand " Thereafter , within a few days , Denker called together all the employees who were then present at the funeral home. At this meeting, as Denker put it, he explained to the employees that he was going to withdraw his card and it was a personal thing with him , asked them to think it over and decide what they wanted to do, and explained to them that they did have an alternative of withdrawing their cards if they desired . . . . ..I might have 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, told them that they could write and withdraw their cards, and told them who to write to." Thereafter, he wrote in his own handwriting and withdrew his card. Randolph, in his testimony , concerning the meeting, quoted Denker as saying, "I understand there are some forms in the main office that have been signed by the employees, and if you want to withdraw your cards, you may do so and we will give you time to do that . . . there are some forms down at the main office that you could use if you so desire." Employee Manley said, of the meeting, that Denker "mentioned the situation between Height's Funeral Home and the Union and said it may go on for sometime , and that any of the employees who had signed cards will be permitted to write a letter and withdraw those cards . . He told them to go over to the main office, and they would receive help in writ- ing the letter . . . . He mentioned that the men could have time to go over to the office and take care of the matter." Thereafter, according to Randolph , he did go over to the office and found that there were available forms or models of letters addressed to the Regional Director of the National Labor Relations Board stating that "I have heretofore and do now revoke said authorization ." Randolph who had not signed an authorization card, determined that the model was not applicable for his use and wrote a letter to the Regional Director stating that he was not interested in being a member of the Union. Denker testified that he wrote in his own handwriting to withdraw his card and that if there was any form being made available , he was not aware of it, and further he did not know anything about a form that was in the office. However, after his testimony, in response to a question by me "When did you first become aware of the existence of that form?" He answer, "Oh, I can't answer that , I don't know." Q. Do you know whether it was before or after the meeting you called in the lounge? A. I don't know that, I couldn't truthfully answer that. Waltrip testified that the form resulted from the fact that two employees, Jan- kowski and Kopp, had contacted management saying they wanted to withdraw their cards, and they did not know what it meant when they signed it, and they did not want to become a part of the Union, they wanted to withdraw their cards. Thereupon, Waltrip called his Attorney Thornton, who dictated a model to Waltrip who then in turn dictated it to his secretary. Waltrip testified that only two of the employees utilized the letter, apparently referring to Kopp and Jan- kowski, and that some other people wrote letters but not in that form. They wrote them in their own handwriting and sent them. Waltrip also testified that the first knowledge he had that Denker had called a meeting, was when Denker called him after one of the sessions of the representation hearing, and told Waltrip that he had signed one of the cards; he did not know what he was signing when he signed the card, and he did not understand what it meant, he was just asked to sign it and he signed it. He had withdrawn it and he had a meeting and told the other people who did not understand what they had signed, that they could withdraw their cards. I do not credit Denker, I credit the account of Manley, that Denker told the employees that any who had signed cards would be permitted to write a letter and withdraw them, and that they could go to the main office where they would receive help in writing the letter. Manley impressed me as a straightforward, and honest witness. Denker did not. To accept his testimony, that withdrawing his card, was his own idea, would require that 1 believe that Denker, who was intro- duced as Landrum's right-hand man, was less in the confidence of the Employer than either Matthews or Randolph to whom the Employer made no bones about requesting them to withdraw their cards and to seek out other employees who had signed cards and get them to withdraw their cards. I believe and I find that the Employer urged Denker just as he had urged Matthews, Randolph, and Kopp, to withdraw his card. I find that Denker did tell the employees at the meeting that they could go to the Employer's office and receive help in withdraw- ing their authorization cards and that employees thereafter did go to the Employ- er's office and receive the help given to the extent, as testified by Randolph, that the Employer furnished the models , the stationery, and the stamps necessary for mailing letters. I consider it a corroborative circumstance that each of the letters, including Denker's, was addressed to the Regional Director rather than to the Union HEIGHTS FUNERAL HOME, INC. 735 -although the letters purport to withdraw authorization from the Union. Upon the facts as set forth above I find that not only was Denker designated and ap- pointed the agent of Respondent insofar as securing the withdrawal of the union -authorization cards (Valley Forge Flag Company, 152 NLRB 1550) but that, further, the Respondent by its actions contemporaneous with Denker's ratified and condoned the action taken therein by Denker. Ratification does not necessarily have to be overt . Ratification can be implied from the surrounding circumstances . In the instant case, Denker, allegedly with- out knowing that to be the case or without having been authorized to do so, told employees that they could go to the offices and get help in withdrawing their authorization cards. The circumstances that the office was then and there pre- pared to give such help and, as a result of the meeting, did give such help not only raises the inference of prior authorization by Respondent , but establishes to my satisfaction the subsequent approval or ratification and condonation of Den- ker's acts. As the Board stated in Fiore Brothers Oil Co., Inc., 137 NLRB 191, "No mere employee could predict with such remarkable accuracy his employer's willingness . I find therefore, that by its assistance to employees in withdrawing their union authorization cards, Respondent interfered with , and coerced them in the exer- cise of their organizational rights (S. H. Kress & Co., 137 NLRB 1244) and that 'by the acts and conduct of Denker in soliciting employees to withdraw their authorization cards as well as assisting them in so doing Respondent interefered with and coerced employees in the exercise of their rights , all in violation of Sec- tion 8(a)(1) of the Act. Yale Manufacturing Company, 150 NLRB 1102, enfd. 61 LRRM 2297 (C.A. 1). F. The Barker allegation The complaint alleges that the Respondent by one Barker, first name unknown, ,who is alleged to be an agent of Respondent , interrogated its employees regarding their union activities . The answer denies any such action or any knowledge of an agent named Barker. The record reveals that on or about July 15, 1965, Respond- ent general manager, Landrum, called a meeting of all employees at which one Klein who is the vice president of another of Waltrip 's enterprises and who ap- parently worked in close conjunction with his business enterprises , addressed the employees, stating that Respondent was reviewing the employees ' insurance pro- gram with the intention of improving it wherever possible to the satisfaction of employees. With this in mind, Klein stated , Respondent had arranged for an insur- ance agent, whom he introduced as Barber, who was then present, to inter- view each of the employees alone. It is the interviews of the employees conducted by Barber that underlie this allegation. Matthews testified that he was taken into a private office with Barber who asked -him personal questions about his age and birthdate Matthews told him he did not -think that was any of his business and Barber replied "there is no use getting huffy about it. I can get it." Matthews answered , "That's all right, then you go -ahead and get it." Barber then said, "I'm trying to work out an insurance pro- -gram. How'd you like to have better hospitalization ?" Matthews said , "It doesn't make any difference , they're all pretty much the same as far as I'm concerned." Barker said, "Well, would you like to have more insurance ?" I said, "Yes, sir." He -said, "Would you like to have longer vacations ?" I said, "Yes, sir, I would." He said "Would you like to have more money?" I said , "Yes, sir." He said, "How old did you say you were?" And I said , "I don't think that's any of your business." He got pretty huffy about it and told me that he was not an insurance counselor, that he was there on behalf of Waltrip to make a survey, that he was working for him. I said, "Well, what do you want to find out." He said , "Would you think the Company ought to have an organization ?" I said, "I don't know." He said , "Do you think they ought to have a guild ?" And I said, "You mean a union, don't you?" And he said, "No, I didn't say that," and we had quite a little discussion there about, oh, first one thing and then another and asked me if I was satisfied with the way things were and I told him no I was not satisfied. He asked me if I would like to have more money and I said, "Well, certainly, I would." He asked me if I would like to work shorter hours and I said , "certainly -I would," and just things of that nature. In reply to the question "did he mention anything about holidays ," Matthews -testified, "Yes, sir," he asked me if I had holidays off and I told him "no." I -said the only thing that I have is two nights a week off and they are one night and then I skip a night and the next day I have another night off and I said I would 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like to have both my nights off together if I could get them and he said, "Well, I'll speak to Mr. Waltrip about it. That was about the extent of our conversation." Manley, testifying about his interview with Barber recalled that Barber asked him what type of insurance he presently had, what type he thought he might need and several items on insurance. Then Barber mentioned the unrest at the funeral home among the employees and asked Manley what he thought it was and what Manley would do about it Manley had no recollection of his answer. Bar- ber then asked him if he were in a position where he could do something about it, what he would do. Manley answered he was not in that position so he would not be doing anything. Manley believes he mentioned that the employees would be more happy with a little raise in pay and shorter hours but recalls no more of the conversation. Randolph, speaking of his interview with Barber testified "when I went in he asked me my age, my marital status, whether or not I had children, what my insurance program was, and he said that they were trying to work out a better insurance program for all the employees where it would fit each individual employee, and the conversation went on and said, `Well, I know there is no union in Texas for the funeral directors and embalmers,' and I said, `No, I think there is not,' and he said, `Well, how is the employer-employee relations?' Then I said, `Well, in my opinion, it's not too good because they have to work too long hours and don't get enough money for it . . . etc.,' and I guess that was about the gist of our conversa- tion." Barber was not called to testify. The three accounts given by the three employees set forth above indicate that at least those three interviews followed much the same course. Each of the three interviews recounted revealed that after some conversation about insurance Bar- ber commenced questioning the employees concerning conditions at the funeral home which had nothing to do with insurance i.e., with employer-employee rela- tions and with the employees' reaction to organization. In addition, Barber admitted to Matthews that he was not an insurance consultant but was making a survey for Waltrip. This, coupled with the fact that Barber was introduced by management through Klein, the vice president of another of Waltrip's enter- prises, leads me to believe that Barber's visits to the plant had nothing to do with insurance but rather were, as alleged by the General Counsel, a means of interrogating employees concerning the source of the employee dissatisfaction and the extent of union organization. It is apparent from the record that Waltrip's various enterprises operated in close conjunction with one another. While Wal- trip stated that Barber made no report to him it is not denied that Barber made reports to Klein or perhaps other members of management. I find that Klein is an agent of Respondent and that Barber is an agent of Respondent through Klein. Respondent is chargeable with the interrogation conducted by Barber which is reasonably calculated to interfere with restrain, and coerce the employees and is violative of Section 8 (a)( I) of the Act G. The change in working conditions The evidence concerning this allegation reveals that after the discharge of Mat- thews the Employer made changes in the assignments of the employees whereby the employees thereafter received two consecutive nights off rather than one at a time. This, the reader will recall, was one of the specific complaints addressed to Barber. There is no evidence that the Respondent has made any change in the insurance coverage (other than changing the carrier) or other conditions of employment. It might well be considered that in view of the other 8(a)(1) vio- lations found above even considering this one is unnecessary. However, I believe and I find that the change was instituted in part to subvert the employees' interest in unionization and, as such, it is violative of Section 8(a)(1) of the Act, and re- quires a remedy. H. The discharge of Matthews The General Counsel contends that Matthews was discharged because of his activities on behalf of the Union and in order to discourage union membership, in violation of Section 8(a)(3) and (1) of the Act. Respondent contends that Matthews was discharged for cause, such cause consisting of a general dereliction in his duties over a period of 6 or 8 months preceding his discharge culminating in his having neglected to lock the back doors of the funeral home the night before he was discharged. In view of my findings concerning company knowledge set forth below it is not necessary to go into the purported reasons for Matthews' discharge, but as HEIGHTS FUNERAL HOME, INC. 737 the parties discussed them at length and a possibility exists that a reviewing authority might disagree with my findings below, a brief discussion appears warranted. Matthews had worked for the Employer for several years, always at night, and had been in nominal charge of the night shift during most, if not all of that time. His activities appear to have been satisfactory for most of that period. Wal- trip testified that he had been "led to believe that things weren't like we wanted them to be on our night crew" some 6 or more months before Matthews' dis- charge. He testified to various visits made by him, unexpectedly, to the funeral home during the night hours. None of the conditions he had been investigating appear to have been disclosed by his surreptitious visits, but he testified that he noted that the preparation room in which bodies were embalmed , was not kept as clean as he would have liked it. In addition, Respondent contends that its dissatisfaction with Matthews stemmed -from the fact that his handling of customers ' accounts was inefficient , leading to an abnormally high accounts receivable with regard to the customers Matthews serviced . General Manager Landrum testified in this regard that in a ratio of sales to the number of customers handled , Matthews' accounts were the worst of any of the funeral directors, although he admitted that other directors had had a larger accounts receivable figure than Matthews . The disparity he explained by the fact that Matthews , on the night crew , had fewer customers to deal with. Waltrip testified that Matthews was instructed to avoid dealing with customers except in emergencies, but the record does not disclose that such warning was ever transmitted to Matthews, and Matthews denies having been so instructed. No records were adduced by Respondent in support of its position as to Matthews sales or accounts receivable. Respondent also contends that its dissatisfaction with Matthews resulted , in part, from his failure to exercise control over the students who were living in the dor- mitory above the funeral home. Respondent cited reports, without evidence as to the truth thereof, that students had been seen in the public parts of the funeral home in a condition of dress unsuitable to the premises , that the students had been leaving their quarters in a filthy condition , that one student had been leaving the premises at a time when he was supposed to have remained there, and that another had brought a female clerical employee onto the premises , apparently against the rules. It appears that these complaints had been discussed in the conversation with Matthews 2 weeks before his discharge . There is no evidence that these conditions continued after that discussion ; the only further shortcoming in evidence after that conversation was that the doors were left open, and the preparation room was again not cleaned to Respondent 's taste. Matthews denied that the preparation room was chronically dirty, stating that normally it was kept as clean as most such rooms. He denied that his sales and accounts receivable were as pictured by the general manager, or that he had been instructed not to handle sales except in an emergency . He testified that he per- formed about half of the embalmings on the night force with no expressed dis- satisfaction by Respondent.3 3 Respondent, attempting to impeach Matthews, adduced testimony from Landrum that he had searched the Employer's records and asceitained that about 1,000 embalmings were performed by Respondent annually of which approximately half were performed at night, and the embalming records disclosed that in the past calendar year Matthews had embalmed only 36 . On cross-examination Landrum admitted that the 36 referred only to records that had been signed only by Matthews , and that over half of the records were signed by two or more persons He further testified that an employee , Pearson, liked to sign every one of the tickets , and that over 75 percent of them had Pearson's name on them, although he had nothing to do with the actual embalming This testimony did not impeach Matthews , but it raised a question in my mind about Landrum 's testimony. This is particularly so in the light of his testimony , in regard to another issue , on another day of the hearing, that the Employer's records disclosed that Matthews served only about four families a month while the other seven or eight funeral directors served 28 or more Multiplying this out I reach a total of at least 2,404 services annually Assuming that there is one body embalmed for each family served, I find a considerable discrepancy be- tween Landrum's testimony of 1,000 in one place and over 2 ,400 In another . I do not credit Landrum's testimony except to the extent that it is corroborated with credible testimony. 243-084-6 7-v o f 159-4 8 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summary, Respondent's alleged reasons for Matthews' discharge do not stand up well to scrutiny, and the evidence submitted in support of them does nothing to enhance my opinion of Respondent's good faith or accuracy. Were I to reach the issue, I would find that the reasons given for Matthews' discharge are pre- textual? However, from that, I cannot infer that the real reason for the dis- charge is connected with the union organization. Some connecting element must be shown, raising such an inference. To find that a discharge is discriminatory within the meaning of Section 8(a)(3) of the Act evidence must show that the Employer knows or believes that the individual discharged is or has been engaged in union activities or evidence must be adduced that by the discharge of the employee other employees were discriminated against or were coerced or restrained in their organization. The latter alternative does not appear in this case. The General Counsel appears to contend that the Company's knowledge of the activities of Matthews stems from his interview by Barber. It is clear that, as of the time of his conversation with Waltrip, a week or so after the Barber inter- view, Matthews had not engaged in any union organization nor had he shown any interest therein. The record contains no evidence that Matthews thereafter engaged in any type of activity on behalf of the Union until after his discharge. Therefore, if the General Counsel is to prevail it must be found that in Matthews' interview with Barber he made statements which may reasonably be construed to reveal that he was engaged in union organization or favorably disposed thereto. I have searched the record in vain and I find nothing which was said by Matthews to Barber, which can reasonably be so construed. The only evidence on the rec- ord in that regard is Matthews' response to Barber's question "Would you think the Company ought to have an organization?" Matthews said, "Well, I don't know." It does not appear that this question and answer between Barber and Matthews can reasonably be said to raise an inference that Matthews was union oriented or that Barber so understood. It is certainly not enough to establish an inference based on this colloquy, that Baiber would have reported to the Respond- ent that Matthews was union oriented. Accordingly, I find that the General Coun- sel has failed to supply a preponderance of the evidence that Matthews was dis- charged for violative reasons. I shall recommend that the complaint be dismissed insofar as it relates to Matthews' discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above appearing in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, and substantial relation 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. . V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. The nature of the unfair labor practices is such that a broad order is warranted and I shall so provide. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). Upon the basis of the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Respondent, Heights Funeral Home, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and * Respondent additionally contends that Matthews was discharged in part as a reqult of a letter of complaint addressed to Waltrip, and answered by Waltrip. General Counsel offered the letter and Respondent agreed to provide it, and Respondent offered the answer, a copy of which it agreed to provide. The exhibits were received, subject to their being provided by Respondent. Neither, at the time of this writing, has been received In view of my disposition of the allegation concerning Matthews' discharge, no findings relat- ing thereto are made. HEIGHTS FUNERAL HOME, INC. 739 Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and the union activities of others, by threatening employees with discharge for union activities, by giving employees the impression that it was engaging in surveillance of their union organizing activities, by stating to an employee that it would never sign 'a contract with the Union, by soliciting employees to withdraw from the Union and by assist- ing employees in withdrawing from the Union, and by advantageously changing the working conditions of the employees all in the manner described in section 3, above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire rec- ord in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Heights Funeral Home, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their or other employees' activities on behalf of the union organization by the General Drivers, Warehousemen, and Helpers, Local Union No. 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Threatening employees with discharge or other adverse action because of their support of the above-named Union or any other labor organization as their collective-bargaining representative. (c) Stating to employees that Respondent would never sign a contract with the above-named Union or any other labor organization. (d) Soliciting employees to withdraw their union authorization cards and to seek to have other employees withdraw their union authorization cards and assist- ing employees in withdrawing their union authorization cards. (e) Giving employees the impression that it was engaged in surveillance of their union activities by recording their telephone conversations. (f) Changing working conditions in order to interfere with employees in their union organization. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion and to refrain from any and all such activities except to the extent that such rights may be affected by the provisos in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at each of its funeral homes in Houston, Texas, copies of the attached notice marked "Appendix." 5 Copies of said notice to be furnished by the Regional Director for Region 23, shall after being signed by the Respondent's representa- tives be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. ' In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 23, in writing, within 20 days of the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.6 IIn the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 employees that: WE WILL NOT interrogate employees concerning their or other employees' activities on behalf of the union organization by the General Drivers, Ware- housemen, and Helpers, Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT threaten employees with discharge or other adverse action because of their support of the above-named Union or any other labor organization as their collective-bargaining representative. WE WILL NOT state to employees that Respondent will never sign a contract with the above-named Union or any other labor organization. WE WILL NOT solicit employees to withdraw their union authorization cards and to seek to have other employees withdraw their union authorization cards or assist employees in withdrawing their union authorization cards. WE WILL NOT give employees the impression that we are engaged in sur- veillance of their union activities by recording their telephone conversations. WE WILL NOT change working conditions in order to interfere with employ- ees in their union organization. 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 labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection and to refrain from any and all such activities except to the extent that such rights may be affected by the provisos in Sec- tion 8 (a) (3) of the Act, as amended. HEIGHTS FUNERAL HOME, INC., Employer. Dated------------------- By------------------------------------------- (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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722. New Bedford Stevedoring Corporation and William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Henry Dias, Frank Araujo, Antone Ramos and Paul Pinto and Mario Monteiro and International Longshoremen's Association, Locals 1413 and 1465, AFL-CIO, Parties to the Contract. Cases 1-CA-5230(1-8) and 5257. June 20,1966 DECISION AND ORDER On April 14, 1966, Trial Examiner Milton Janus issued his Deci- sion in the above-entitled proceeding, finding that Respondent had 159 NLRB No. 68.