San Francisco Funeral Service

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mortuary Employees' Union, affiliated with Seafarers' International Union of North America, AFL-CIO (Cathay (Wah, Sang), d/b/a San Francisco Funeral Service, Inc.) andJohn Hardin. Case 20-CB-2186 August 12, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On April 28, 1971, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled proceeding, finding that Respondent, had- engaged in and was engaging in certain unfair labor practices within' the meaning ' of `the ` National° Labor Relations Act, ' as amended, and recommending that Respondent' cease and desist `°therefrom ' and' take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions, with a brief in support thereof, to the Trial Examiner's Decision. The General Counsel filed limited cross- exceptions and a brief in answer to Respondent's exceptions. 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 this case to a three-member panel. The Board has reviwed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Mortuary Employees' Union, affiliated with Seafarers' International Union of North Ameri- ca, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order.3 1 Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 363 (C. A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 The General Counsel has taken limited exception to certain language of the notice. We find merit in these exceptions and shall, accordingly, modify the notice to conform to the fir.' ` 3 Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY O!tDER OF'THE '' NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE, WILL NOT,, cause or , ,attempt to cause discrimination in employment against John Har- din, or any other employee of Cathay (Wah Sang), d/b/a -San Francisco- Funeral Service, Inc., be- cause of the refusal of Hardin or such other employees to join our union at a time when he is not under an obligation under Section 8(a)(3), of the 'National Labor Relations ' Act. to become or remain a member of our unionas a condition of employment. WE WILL pay to John Hardin any money he lost as a result of his losing his job plus 6-percent interest. WE WILL NOT restrain or coerce employees in the exercise of their rights under Section 7 of the Act except to the extent that membership may be legally required by valid contract. MORTUARY EMPLOYEES' UNION, AFFILIATED WITH SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. 192 NLRB No. 90 SAN FRANCISCO FUNERAL SERVICE 617 TRIAL EXAMINER'S DECISION HENRY S. S4WM, Trial Examiner: The complaint alleges that the Respondent Union caused the employer to discharge an employee for failure to join the Union and that the Union thereby violated Section 8(bX2) since the discharged employee was employed outside the bargainin& unit and hence was not subject to the union security clause of the collective-bargaining contract. STATEMENT OF THE CASE This, case, heard at San Francisco, California, com- menced on January 19, 1971,1 and concluded on January 22, pursuant to a charge filed on February 9, 1970, and a complaint issued November, 19, 1970. There is here presented the question whether the alleged discriminatee, a licensed mortician whom the Union claimed was perform- ing the bargaining unit work of an undertaker, was required to joie} the Mortuary Union under a union security clause which - required all morticians to join the Union 31 days after beginning employment.2,However, the Charging Party employee contends he was not required to join the Union as he was a management trainee, a category not encompassed within the unit described in the collective-bargaining agreement, or subject to the union security provision, so that when the employer discharged him,at the Union's insistence because of his refusal to join the Union, this was a violation of Section 8(b)(2) of the Act. Upon the entire , record in this proceeding, including observation -of the witnesses, and after giving careful consideration to the briefs filed by the parties, there are hereby made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED San Francisco Funeral Service, Inc., a California corporation, herein referred to as the Mortuary, is owned by Nicholas Daphne, who operates,three mortuaries in San Francisco which, in 1970, made retail sales and rendered services valued in excess of $500,000 and purchased and received goods from suppliers located outside of California valued in excess of $50,000, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. The Testimony John Hardin, the alleged discriminatee, a licensed embalmer, , was employed as an "office man and clerical employee" on November 20, 1969, by Nicholas Daphne, owner of three mortuaries doing business under the name of San Francisco Funeral Service, Inc. Daphne has had a collective-bargaining agreement with the Respondent Union for over 20 years. Hardin described his duties as follows: ". . . to attend the office ... doing clerical-work, filing, answering the door [ofthe funeralparlor] ... taking flowers [delivered to the funeral parlor] ... my job was ... primarily office help which entailed answering the telephone . . . , attending the office duties," receiving payments -and giving receipts, typing various - death certificates and releases which permit the remains of the deceased to be released by the family to the mortuary. Hardin and Daphne-both testified that he was instructed by his employer that- he was not to perform any duties' encompassed within the jurisdiction of the Union. These duties, which are to be performed only by employees within the bargaining unit, are listed in article X of the collective- bargaining agreement as follows: 1. Preparation and embalming of human remains. 2. Removal or shipping of bodies. 3. Dressing of bodies. 4. Laying of bodies in caskets. 5. Making funeral arrangements. 6. Selling of funeral merchandise. 7. Conducting of funerals. 8. Each establishment will be covered by either an employee within the bargaining unit or by a member of recognized management whenever, a body is J aid out and available for visitation or viewing by the family or friends between the hours of 7p.m. and l I p.m. This does not apply to an establishment having a regularly scheduled shift of a-member of the-collective bargaining unit during-said hours. The words "making funeral arrangements", as -used in subparagraph 5 above shall be construed to mean the actual discussion of funeral arrangements with the family 'of the deceased. The following are to be performed only by an employee within the bargaining unit or a member of recognized management: (a) Ordering lifters 'to work on- the Extra - Scale; (b) obtaining the clothes of the deceased from the home of the - deceased. (If either of these two duties are performed on the Extra ;Scale by an employee within the bargaining unit, they shall be performed for the same charges as "Care of Office", rather than for the "Making Funeral Arrangements" charge). It is understood that other duties, such, as "phoning in Newspaper notices", will not be considered "Making Funeral Arrangements". An exception to article X, immediately - above, is a provision which permits a member of "recognized manage- ment" to perform unit work: Recognized management is defined in article XII as follows: For the purpose of this agreement only persons falling within one of the following categories will be considered recognized management: A. 'Family: Any direct descendant of present management provided that they devote substantially their full working time to the business of said funeral establishment. ` B. Members of any partnership or elected officers r All dates herein refer to the year 1970 except where otherwise apprentices, journeymen, -and master journeymen to become and remain indicated. members of the Union. 2 See art. VII of the collective-bargaining agreement which requires 618 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD of a corporation, limited to two (2) in any one (1) establishment. C. A letter listing-=the present management of Call firms will be agreed upon. No Funeral Director shall conduct funerals for another Funeral Director for compensation, nor shall any Funeral Director render any service or perform any work, with or, without compensation, which service or work is, agreed or contemplated herein to be performed by anemployee within the bargaining unit. , Under article XII, the three mortuaries involved here were permitted by the Union to have two managers. Nicholas Daphne, the, owner, who is a licensed, embalmer, and a second manager. - Hardin was paid by Daphne a flat monthly salary of $700, which is approximately $140 less per month than that received by a master journeyman embalmer, whose salary is based on a wage formula of $4.85 per. hour with provisions for overtime. Hardin, who had worked as an embalmer in Los Angeles for over 10years, testified that he told Daphne he was willing to'work at this reduced salary as it was his desire and ultimate goal to learn the management end of the mortuary business. When Hale F. Porter, secretary and business agent of the Respondent Mortuary Employees Union -learned that Hardin was employed by Daphne, he asked Hardin to come to his office on November 28. Hardin's testimony reads as follows: , The meeting was held...: I immediately explained to Mr. Porter what my job capacity was with Mr. Daphne and Mr. Porter acknowledged it butinsisted throughout that I was, in , fact, performing unit work, that he couldn't understand how I could be.working there as a licensed embalmer and not embalming . I explained to him, probably in, a little,more detail, exactly what I was doing. That, is to say, what certificates ,I was typing out, releases ,1 was preparing, and so forth.- Mr. Porter then said he acknowledged this but then said it didn't make any difference. I was rather puzzled :..,,he said I was an ,embalmer, I was working in San Francisco and I had to join,the union ... it didn't make any difference what my duties were ... what I was doing. Hardin testified he explained to Porter he was doing office clerical work:- * * I might say again what his response was to it that he was quite adomet [sic] on the fact that it didn't make any difference and that I was still an embalmer and that he furthermore said I was performing unit work.... I told him what our agreement was,; • exactly what the arrangement was, and I told him that my purpose was to, if possible, work into management. The option of later joining the union, as an embalmer was a possibility if the need arose ... [that I took the job even though] there was a -hundred dollars difference in [the monthly] salary., I felt at the time that since I had eleven or twelve years of preparing body remains and doing managerial supervisory work in Los Angeles, that I felt the need of possibly, getting into management. The only way.I could obtain this goal was to work for a large firm. I had known of Mr. Daphne's firm, it's known , all over the State and I figured this would be the logical place to go to work. It meant a sacrifice in wages, but hardly that much of a sacrifice considering the goal of getting into -management and doing more than just backroom work, as they refer to it. Hardin had a second meeting with Union Official Porter sometime in, December . His characterization of this meeting was that they discussed the same things as at the first meeting, namely, " ... his job with Daphne- and his duties." Hardin's testimony follows: I explained to him [Porter] again the whole situa- tion... ^. he insisted, of course, I was in violation.... I told him there had been an incident that may have constituted a violation, that it was an extenuating thing -and I said' furthermore, that I would advise him anytime there was a violation'that occurred thereafter,, and a letter was subsequently sent to him. Itwas either mailed or given to'him... ['Porter] asked"nie whyI shouldn't join the union that time as he-did the first time and insisted too that I was violating the union contract and he also mentioned that' a complaint would `be' filed within'30 days.... I told him that I wasn't atthat,time in the position to join- the union -because, of -my agreement with Mr.'Daphne; that I wasn't performing any union work; that there wasn't any need for me to join the union at that time, and, 'I `old him again, after his insistence that I was violating ' the union contract, that I would write these events down, time, place and so forth' and, I would submit to him, when these" events occurred.... On the other, hand; being a licensed embalmer and not wanting to, I guess you' could say, put Mr. Porter at ease, try to convince him, I guess you could say, that I wasn't consistently violating - the contract without his knowledge-and'that's-whyl sent him a letter and I guess that's why, I guess, you could say I had a meeting with him.: " The letter which Hardin subsequently wrote to Porter is dated December 11, 1969, and reads is follows: Mr. Hale F. Porter Mortuary Employee's Union 337 Valencia St. San Francisco, Ca. 94103 Dear Mr. Porter: I- am presently employed by the San Francisco Funeral Service. My job capacity is that of office-help, i.e., consisting entirely and solely [sic] of office duties. I am fully aware, under union-regulations, that tasks consisting of 1. embalming, 2. removals, 3. directing, 4, arranging (at need) 5. any duty listed in the union contract to be performed by a licensed union member, are prohibited under my present job classification with the San Francisco Funeral Service. If, in any event, my job status changes or any subsequent violation occurs during my employment I will notify your office immediately. Sincerely, Hardin, Hardin, J.A. I Church St. - ' San Francisco, Ca. SAN FRANCISCO FUNERAL SERVICE 619 P.S. Please direct all correspondence to SF.F.S., I Church'St. Hardin, in explaining why he believed it was necessary'to keep Porter fully' informed of any work he might perform that came under =the jurisdiction of the- union employees within the bargaining unit, testified that he needed Porter and did not' want to'antagonize-him. He testified that in the past he had come to San Francisco from Los Angeles seeking work from Porter-3 "I wanted a relationship that wasn't hostile. I didn't intend on'hiding anything from him and I felt that for my own sake that if I ever neededa job in the city, that there was no reason why I shouldn't go and see him and keep a fairly decent relationship. I didn't want to alienate' Mr. Porter." When- Hardin was asked on redirect examination the reason he agreed to notify Porter whenever -he did unit work, his answer was because "I didn'twant to get into a squabble with the union. It may have been that things didn't work out at Daphne's and I certainly" didn't want to jeopardize any chance or opportunity to get a job' elsewhere. The whole idea was for [good] relationships and I had nothing to hide so I told him that I would, and furthermore, Mr. Porter has been apprised of every violation." Hardin continued: I wasn't a member of the Union. I was a licensed embalmer.... Mr. Porter got ahold of me, contacted me on [November] 28th and he was insistent all along that I join the union and I,told him that I couldn't under my job arrangment with Mr: Daphne at the time and that I would when I became an embalmer or started doing unit work ... join the' Union. I would come down and make application. But, my intentions were to get into management and no longer wanted to perform duties as a journeyman which would be`embalming and performing other duties that I would have had to join the Union to do. On December 30, a third meeting was held at which Hardin met with Porter at the offices of Porter's attorney, Peter Adomeit. Hardin's testimony that they discussed what the,duties were reads as follows: My duties,, whether or not there were any violations, and I explained to them as I had done before, that I woud advise them of any violations ... Mr. Adomeit did pose a question regarding 'ethics and operation at the funeral home ... whether Mr. Daphne was doing anything to violate any State law pertaining to the handling of the remains and I told.him as far as I knew his operation was ethical and that I would mention it and write it down if I saw anything.... If you recall the first meeting on November 28, and the second meeting, after I explained to Porter my duties, he insisted nevertheless I was violating the contract. All along he had insisted I had violated the contract and I assured him that if, I did I would write down these events ... any violations, if there was a violation, I would write it down. I would make a note of it and I would-send hima letter. Hardin's testimony continued as follows: Mr. Porter insisted that I was violating the contract. He said that he had people watching and ,that they saw that I was an embalmer and that I was violating the contract.. I never actually found out,what I was, doing and he never said. For instance, embalming. I don't think that he ever saw that. I embalmed a body or prepared one ' or laid the remains out but he was insistent on this and -I told him that I felt that it was normally my duty to tell him that if I did do these things. that he could submit a complaint. I never had the opportunity to do this ... I told Mr. Porter and Mr. Adomeit that there were occasions, one he was already aware of, where I had violated the contract, but not consistently. I was not, arranging services at at-need situations, directing, embalming, driving,case,out.... I wasn't doing these -things. I told him that I would make note of these if I did. This is the whole thing. Hardin admitted to three incidents where he had performed so-called "unit work," which was within the jurisdiction of union employees. The first occurred when a pallbearer became faint and Hardin grabbed-the handle on the coffin from this man and helped to carry the casket 15 to 20 feet from the mortuary to where it was placed in the hearse. He estimated this took approximately 1 minute. Hardin related, another incident which occurred in the early part of January when he came to the mortuary and found a Mr. Westly, a union employee, who was acting as a "watcher" at a time when a body was laid- out-in the mortuary. This union employee hadbeen hired by Daphne, the owner, unbeknown to, Hardin, to attend the body from 6 to 9 p.m., in the event friends and family of the deceased were to tome to the mortuary to, pay their respects. Hardin, who was scheduled to work that evening, arrived at the mortuary about 7 p.m., and not knowing that Daphne had hired Westly to work as a "watcher" from 6 to 9 p.m., told Westly that he could go home. When Daphne later learned of this, he informed Hardin ofthe arrangement and paid the watcher for the entire 3 hours for which he was hired. Hardin, in explaining why he had dismissed Westly, claimed he did not know there was a provision in the collective-bargaining agreement that a union man must be present when a body-is laid out in the mortuary. A third incident occurred when Hardin hired profession- al pallbearers (described- in the contract, as "lifters"), to attend the coffin at a funeral. The hiring of such pallbearers is unit work. During the 3 months that Hardin worked for Daphne, these three incidents consumed, in the aggregate, a total of approximately 2 1/4 hours: 2 hours 'when he dismissed the watcher, Westly;,-10 minutes to hire the professional pallbearers; and a few minutes ,to grasp the coffin handle when a pallbearer became faint. Although there-are-allegations in the record-that Hardin performed "at-need" services, ,the testimony does not bear out these.charges. When a customer comes into a funeral parlor, he is met by either an employee or a member of management. Since the circumstances surrounding funeral arrangements require tact and consideration in dealing with the bereaved of the deceased, oblique approaches are made to determine whether, the customer seeks information with regard to someone who has died. If it involves a death, this 3 Hardin testified that "ten years ago," he had registered with the Respondent Union for referral to mortuaries. See art. VII of G.C. Exh. 2. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is' called in the mortuary business an "at need" situation, which-is union or unit work. If, however, there is no death involved, but rather a death is anticipated, or perhaps, a customer, is making his own funeral arrangements for the time when he- dies, this type - of situation has been interpreted by the signatories to the collective-bargaining agreement as a "pre-need" situation which is not classified as unionor unit work. The'= Union claims that Hardin did make funeral arrangements in an' "at need" situation -involving the "Oakes" family,, which was testified to, by Barcewski, an embalmer 'employed by Daphne, who testified on behalf of his union. See infta. Hardin denied the allegation, testifying that he met customers at the door of the mortuary about six times during , the 3 months 'he, was employed -by Daphne, but as soon as-he was able to evaluate the situation at hand as being an "at need" situation, he immediately turned the customer over'to either a management official or a unit employee. Barcewski's testimony that he saw Hardin making arrangements for the Oakes funeral is not credited. It is found that in talking to the Oakes family, as soon as Hardin determined it was an "at need" situation, Daphne took over .and completed the arrangements.. Hardin testified that proof.of the fact that he was neither a unit employee nor doing unit work is the fact that when he went to work for Daphne, he never notified the California State authorities of his intent to practice embalming, for which he held a qualified State :license, nor did he ever display his mortician's license at the mortuary, both of which are requirements of the State of-California for anyone wishing to perform the function of embalming. Hardin's denial that he ever conducted a funeral, sold funeral merchandise, or embalmed,- removed, transported, shipped, dressed, or laid out a body in a casket during the 3 months he worked for Daphne stands' uncontroverted, except J or -the three incidents described above,-which Hardin admitted. Nicholas Daphne is the owner of -the three mortuaries doing business under- the name of San Francisco Funeral Services. Daphne testified that: Mr. Hardin was brought into the company around November to take- office work and caretaker of- the properties that we own, in all locations if necessary, and specifically not to do whatever; any union work. If there were cases ow-the floor, -I would be there, Mr. Poulos would be there, our other manager, or a hired union man brought in on extra pay.-... Our services are 90 percent of the time on Saturday nights and Sunday, the day of the funeral. People do not come in on the week nights as a rule. Under the union contract, the mortuary is permitted to have two managers, one of whom is Daphne. Managers can do unit' work under the provisions of the collective- bargaining agreement, but of the two managers, only Daphne is qualified to do embalming. Daphne testified that when he hires an embalmer, he is required by law to notify the State.- However, he' did not `do so when Hardin "was hired because he was not to perform any of the duties of a mortician. Daphne described his hiring- of Hardin' as being "just like hiring a clerical employee with -an embalmer's 4 Daphne testified that it took him about 7 to 8 minutes to arrive at the Cathay Mortuary, which is where Hardin spent approximately 60 to 75 degree." Daphne stated that Hardin never did unit work except in the few emergency and mistaken instances which were testified to by Hardin above. On February 3, Daphne received a telegram from the Union notifying him that the Union would orderer strike if he, did not discharge Hardin. A meeting was then held at the Union's offices on February 5. Present were Daphne, wife, daughter, and his attorney, J. Richard Thesing, Union Officials Porter, Nosker, and their attorney, Peter Adomeit. The first 45, minutes of the meeting was taken up with matters other than that of Hardin. When it was. suggested that Hardin, who was waiting outside of the hearing room, be brought in, Porter stated that he did not want to discuss the Hardin matter. Others in attendance at this meeting prevailed upon Porter to allow ' Hardin, who had been waiting outside for almost an hour, to be heard. Daphne's version of what happened next reads as follows: Well, it didn't take very long. This thing blew wide open. The main thing in mind was when Mr. Porter jumps up' from the table and waves his hands around his head and very loud said, "I don't care what kind of work he does and I don't care to hear it, All I know is that man is to join the union or you have to fire him or you will have a strike on tomorrow, morning at your places. I don't care what kind of work he does whatsoever. He's got a license in California and he can not work in San Francisco"In other words, he [Porter] was the boss, he was going to do' what he wanted ... Mr. Thesing said, "Look, I'm willing to arbitrate. If you think Mr. Hardin has done, these jobs, I'm willing to bring this to an arbitration." Mr. Porter said, "I'm not going to arbitrate this case whatsoever. I'm not going to have anything, to do with it." [And then he left the room] ... We thought he was going to come back. He never did come back. We waited three or four minutes, finally got up and [left]. I told Mr. Hardin that we can't take a strike and they sure as hell are going to strike at 8 o'clock tomorrow morning and,I just can't take it, the position I'm in right now ... Mr. Hardin was dismissed ... about 6 that night. Daphne -testified that Hardin's job predecessors were Merston O. Wong and a Mr. Wang, who were not embalmers, and who had the same duties as Hardin. In addition to their clerical tasks, they also met people at the door, received, flowers sent to the mortuary and answered the telephone. When these two men, as well as, Hardin, worked as office clericals and' a customer came in to the mortuary to inquire about funeral arrangements in an "at- need" situation, and no union men were on duty, Daphne testified-that he instructed them to telephone him or the other manager and either Daphne or his manager would be there in a matter of minutes and wait on the customer 4 Ken Nahigian, an embalmer who is a member of the Respondent Union, has been employed by Daphne for over 5 years at the Church Street Mortuary. He testified that Hardin told him "he was concerned about committing percent of his working time. SAN FRANCISCO FUNERAL SERVICE 621 violations of the embalmer's. contract ... and Fm [Hardin] basically keeping track of, them. I don't like doing -it and what am I going to do." Nahigian testified he never saw Hardin making arrangementsfor or directing a funeral, but he did see him.giving "assistance." Joseph Braun, a member of the Chauffeurs, Union, has been employed by Daphne for 7 years making removals of bodies, obtaining various certificates, and performing errands. When he was asked what he observed Hardin doing, he answeredl, "He would meet people at the door and go up the stairs [of the Cathay Mortuary ] to do some office work." Hale Porter has been secretary and business agent of the Respondent Union for 6 years. About December 5, he testified that he began to "suspect" that Hardin was doing unit work. Each time he had a conversation with Hardin, testified Porter, he kept a "tight" record of what was said. On one such occasion, Porter recounted, how a union member employed by Daphne,- had asked Hardin to put cosmetics on a' corpse but he had refused as this was unit work. Without specifying names or details, Porter testified, "I got information 'back from the' men back at San Francisco Funeral Service that they felt that Mr. Hardin could be infringing 'upon unit work.... I was told- that it was possible '-that he had been." Porter then testified that between December 5 and 8, a union member employed by Daphne had telephone to inform him that "there had been a case laid out -between 'the hours of 7- and 11 by the name of Deale and [Hardinn] had been on the floor by himself." Porter then phoned Hardin and told him about the Deale matter, whereupon Hardin admitted it was so. Porter testified that he then notified Hardin he would have to join the Union.5 The "Deale" and "Westly" incidents, the record reveals, are one and the same. See above, and Porter's. testimony immediately below, with respect to Hardin being on the floor by himself "where a case was available for viewing.," Porter, then testified about , a luncheon meeting he had with Hardin on December 17. His testimony reads as follows: He told me he had to work things out with the employer. That, he had information ... that I told him that we would insist that he become a member'of the union, and when the 31 days passed I had no alternative but- to file a charge..... Hardin told me at that time that he had in fact violated the agreement and that he would write them all down. He told me, if I remember correctly, that he had been ,asked by Mr. Daphne to make funeral arrangements and that he had been asked by Mr. Daphne to be on the floor by himself where a case was available for viewing. The next meeting between Porter and Hardin was on December 30. Porter's testimony follows: Mr. Hardin had indicated to me that he had information regarding Mr. Daphne. I asked Mr. Hardin in -view of the fact that there is a lawsuit against the union with Mr. Daphne, that our attorney would be interested in talking with anybody that has any knowledge of Mr. Daphne and his business and I asked Mr. Hardin if he would be agreeable' to discussing any items with our attorney. Mr. Hardin said yes, hewould, and I arranged for -a meeting .. -. basically the discussion was that he was doing unit work, knew he was in violation but he =was:going,to write -everything down and he would have all of this information for the union ... that he would .have information for the union regarding Mr. Daphne, the way he worked, the way Mr. Hardin worked and otherinformation that we would be able to obtain and other information that the union might be interested in.... Mr Hardin indicated that he was performing unit work. He also indicated at that time that he liked `the methods of Mr. Daphne's business. If I remember correctly,he said he was- an aggressive funeral director and, he liked his way of doing business. That was one of the items and he would like a part of this. He felt that this was the situation that he would or could work into. Porter then related his version of what occurred at the February 5 meeting which culminated in Daphne's discharging Hardin under threat of the Union calling a strike if he did not do so. Porter testified as follows: Well, [Adomeit ] ' said that Mr. Hardin was doing unit work and he had to join the union. Mr : Thesing, at that point, told me at that time, told me that it was a fact that Mr. Hardin had been doing unit work, that he had only done it a few times and that we could have some sort of understanding and I, at that-point, said I do not care how many times it was done, one time, a half a, time, he's done it and he's going to join the union or we are going to take action. The conversation 1 had about unit work was with Mr. Thesing. Poulos Barcewski, an embalmer employed by Daphne, and who is a member' of the Union's executive committee, was assigned- to the-Church Street Mortuary. While Hardin was there, testified Barcewski, he- observed him making funeral arrangements with a family named Oakes for a member of their family who, had died: He said Hardin "set the time and collected the money." Hardin credibly denied this, as found above, stating that he took care of only the Oake's funeral "pre-need" matters, but as soon' as he learned their situation was "at-need,"' he had nothing further to do with-the arrangements. Barcewski also testified that in January 1970; Hardin had once said to him, "I know I am violating the contract and I'm keeping a record in this brown book " On-still-another occasion, testified Barcewski, Hardin said to him,-"I'm kind of getting boxed in. I'don't know what, to' do" 'to which B a r c e w s k i testified he r e p l i e d , " Y o u got y o u r s e l f into it . ' . . I said, in other words, you are a scab. He'said, "In other words, you are calling' me a scab?' I said, `Well, you call it what you mean."' On rebuttal, Hardin testified that from the very outset when he was first employed by Daphne,. Porter repeatedly accused him of doing unit work. When Hardin asked Porter what was the basis for these many accusations, Porter would reply in general terms, testified Hardin,""He just said that he was getting information."' Hardin denied he ever discussed alleged violations of the contract with Barcewski, 5 It appears , that the only violation Porter knew of his own knowledge an emergency situation. was when Hardin telephoned several funeral homes to secure pallbearers in 622 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD with the exception of the Westly or,Deale incident, which are the same. Hardin declared that Barcewski was "gad- flying me on the idea of working there and not belonging to the union, which he was doing."- Hardin, also denied Barcewski's testimony that Hardin never telephonedlhim at the, Church Street Mortuary to make an "arrangement." Hardin stated that he - called Barcewski "several times" from the Cathay Mortuary to tell -him to come there in order to-handle "at need" situations. B. ,Contentions and Issue The General Counsel contends that Hardin was an office employee hired to' do nonunit work and that, when the Respondent Union insisted that' Daphne discharge him under the union security clause of their collective-bargain- mg agreement, this was a violation of 'Section 8(b)(2) of the Act because Hardin was not a member of the bargaining unit. Hardin admits that, on three `occasions enumerated above, he did' bargaining unit work. This, in itself, argues Respondent, makes him ,ipso facto, a unit employee 'so that when - he failed to join the -union 31 days after his employment,` the Union was legally justified in requesting Daphne-to terminate , him. 'The issue then is whether or not Hardin was a unit employee C. Discussion and Conclusions The Board from the very beginning has held that the appropriateness of a bargaining unit is primarily deter- mined on the basis of the mutuality of interest in the wages, hours, and working -conditions of the group involved-.6 In determining whether the requisite mutuality of interest exists, the Board looks to such factors as-the duties, skills, wage patterns, and working conditions of the employees involved, the organization of the employer's business, and any existing bargaining history. It is the Board's established policy never to consider factors,unrelated-to work interests and functions.7 Adoption, of Respondent's view would constitute a departure -from these practices and would lead to absurd and unreasonable results . Therefore, where an employee is not covered -by. the unit described in a collective-bargaining agreement containing a union securi- ty provision, any discharge of, such excluded employee by the. employer at the insistence of the Union for failure to join the,Union,is a violation of the Act .8 It is .admitted that Hardin performed duties within the jurisdiction of the unit employees on three occasions enumerated above. However, it is also uncontradicted , that Hardin accepted employment , with Daphne in order to learn the management end of --operating a mortuary.- It would appear; therefore, that Hardin was a management- trainee. As such, he was paid a salary although the other e See e.g., Annual Reports of the'National Labor Relations Board, 28th Report (1963) at p. 51 , 17th Report (1952) at p. 56, and'2nd Report (1937) at p. 123. Ibid s Consolidated Constructors & Builders, Inc., 365 NLRB 656, enfd. 406 F.2d 1081 (C.A. 1); Local 340, International Brotherhood of Potters, 175 NLRB No. 123; cf. Helms Bakeries, 171 NLRB No. 3, enfd. 422 F.2d 863 (C.A. 9); Kaiser Steel Corp., 125 NLRB 1039. 9 It appears there are no cases which have decided the question whether the inclusion of a supervisor in the appropriate unit of nonsupervisory employees is legally permissible. Cf. Honolulu Star Bulletin, Ltd, 126 employees in the--unit were paid on an hourly rate basis: It is clear -that Hardin hoped eventually., to attain, management status so that -his intereests as a management-.trainee were materially different from those of the unit employees. Moreover, his first and primary -interests, lay, with management in that he hoped he would eventually stand in the. position of a supervisor under the Act .9 Because he was a management-trainee, his hopes- for eventually, obtaining supervisory status connotes he did-;not have a significant community of interest with-the unit'employees,,,in that he did not spend a substantial portion of his time, performing identical functions.'° The fact that Hardin did perform some unit functions under the-extenuating,and casual circumstances described . above does not automatically convert, him, into a unit employee any more than a supervisor who occasionally does unit work is thereby required to join the Union. At most, Hardin's three isolated and casual contract, breaches within a period of 3-months cannot be a logical or sensible basis for holding that he thereby was mechanistically transformed into a unit employee. It seems that Porter was of the, belief that since Hardin was a licensed `embalmer that this in itself required him, to join the Union, this belief Js not well-founded. Although Hardin was qualified to be an embalmer, the test for inclusion in the unit is not one's qualifications but rather the, functions he performs. The function of ,Hardin was ,that 'of a management-trainee, which for the reasons stated ,above, exclude him, from the unit. Therefore, for the Respondent Union to obtain Hardin's ,discharge under the circumstances in this proceeding was; a violation of Section 8(b)(2) and (1)(A)'of the Act.'1, THE REMEDY Having found that Respondent Union has',engaged in unfair labor practices, it'shall be recommended that it cease and desist therefrom and that it take `certain affirmative action designed to effectuate the policies of the"Act. It shall be recommended that the Respondent make Hardin whole for any loss of pay he may have suffered as a-result of Respondent having caused the said discriminatee'to be deprived of his job by payment to him of a sum of money plus interest, equal to that which he would have earned in the position that he held before his discharge.12 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section -10(c) of the Act, there is hereby issued the following recomruendedi 13 ORDER Respondent, Mortuary Employees' Union, affiliated with Seafarers' International -Union of North,, America, AFL-CIO, its officers, agents, and representatives, shall: NLRB 1012. to Cf.`Transway, Inc., 153 NLRB 885. 11 See Case No. F-809, December 22, ,1958,44 LRRM-1047. 12 Isis Plumbing. & Heating Co., 138' NLRB 716; F. W. Woolworth Company, 90 NLRB 289. 13 In the event-no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall,,' as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. SAN FRANCISCO FUNERAL SERVICE , 623 1. Cease and desist from: (a) Causing or attempting to cause San Francisco Funeral Service, Inc., to discriminate against John Hardin because of the refusal of Hardin to join the Respondent Union at a time when he is not under an obligation, under Section 8(a)(3) of the Act to become or remain a member of the Respondent as a condition of employment. (b) In any like or related manner restraining or-coercing employees of San Francisco Funeral Service, Inc., or any other employer within their territorial jurisdiction in the exercise of rights guaranteed in Sections 7 and 8(b)(1)(A) of the'Act.14 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) In accordance with the Remedy section of this Decision, make John, Hardin whole for any loss in pay he may have suffered because of said discrimination against him. (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full -reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act, and the Universal Military Training and Service Act. (c) Notify San Francisco Funeral Service, Inc., immedi- ately in writing, that it withdraws all objections to the i4 Local 327, Teamsters, 173 NLRB No. 220. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals Enforcing an Order of'the$National Labor Relations Board." employment of John Hardin in ,the position he,held,at the time of his discharge. (d) Post at its offices and meeting halls, copies of the attached notice marked "Appendix." 15 Copies of said notice on forms furnished by the Regional, Director for Region 20, -after being ,duly signed by an authorized representative of Respondent, shall be,posted by Respon- dent immediately upon receipt thereof, ,and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said "notices are not altered, defaced, or covered by any other material. (e) Mail to Regional Director for Region 20 sufficient signed copies of the, attached notice marked "Appendix" for posting at San Francisco Funeral Service, Inc., at its three mortuaries, if willing, in placesY where notices to its employees are customarily posted. Copies of said notice, on forms, provided by the Regional Director, shall after being signed by the Respondent Union's representative, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional:D.irector for Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken-to comply herewith.16 16 In the event that this recommmeuded Order is adopted by the, Board, after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has- taken to comply herewith."