Daphne San Francisco Funeral Service

DAPHNE SAN FRANCISCO FUNERAL SERVICE 461 Cathay (Wah Sang) d/b/a Daphne San Francisco Fu- neral Service and Mortuary Employees' Union, affi- liated with Seafarers' International Union of North America, AFL-CIO Case 20-CA-10041 June 8, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On January 15, 1976, Administrative Law Judge George Christensen issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed cross-exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order 1 Interrogating employees regarding their and other employees' union activities 2 Threatening employees the Company would dis- charge employees for engaging in union activities 3 Discharging employee Arthur Grosse because he en- gaged in union activities The Company denied the commission of the alleged in- terrogations and threats and denied it discharged Grosse because of his union activities The issues are, therefore, whether the Company commit- ted the alleged interrogations and threats and discharged Grosse because of his union activities The parties appeared by counsel at the hearing, were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs Briefs have been received from the General Counsel and the Company Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find the Company at all times pertinent was an employer en- gaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Cathay (Wah Sang) d/b/a Daphne San Francisco Funeral Service, San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Administrative Law Judge On September 9 and 10, 1975,' I conducted a hearing at San Francisco, California, to try issues raised by a complaint issued on July 1 pursuant to a charge filed by the Mortuary Employees' Union, affiliated with Seafarers' International Union of North America , AFL-CIO,' on March 11 The complaint alleged that Cathay (Wah Sang) d/b/a Daphne San Francisco Funeral Service 3 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter referred to as the Act), by Read 1975 after all future date references omitting the year 2 Hereafter called the Union ' Hereafter called the Company II THE ALLEGED UNFAIR LABOR PRACTICES A Background At all times pertinent the Company operated three mor- tuaries in San Francisco at One Church Street, Sixth Ave- nue and Geary Street, and 1213 Powell Street The Church Street premises were the largest and contained the Company's main business offices At times pertinent, the Company employed three li- censed master journeyman embalmers at Church Street to perform embalming for all three locations They were Ed- ward Barcewski, who, as of September, had been employed by the Company over 10-1/2 years, Clayton Galloway, who had been employed for the previous 1-1/2 years, and Arthur Grosse, who was employed by the Company be- tween July 1974 and March 1975 The Company since 1938 has been signatory to a succes- sion of collective-bargaining contracts with the Union cov- ering its embalmers The contract in effect at times perti- nent to this proceeding became effective March 1, 1974, and runs to February 28, 1977 Beginning in October 1974 there has been a dispute be- tween the Company and the Union over the Union's de- mand the Company employ embalmers at each location to perform the work normally performed by embalmers there or, in the alternative, compensate its three embalmers at premium rates for all time such work was performed at or for the Geary and Powell Street mortuaries In October 1974, the Union's secretary-business repre- 224 NLRB No 56 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative, William Barnes, asked the three embalmers to maintain and furnish him with records of the numbers of hours embalmer work was performed at or for the Geary and Powell Street mortuaries (He followed this up with a written request in November 1974) The three embalmers complied and began to keep such records or work logs and to furnish them to Barnes In late October, Barnes, on the basis of the logs fur- nished to him by the three embalmers, sent a bill to the Company for amounts allegedly due under the contract but not paid The three men maintained and furnished such logs to Barnes thereafter, and the Union sent a bill based thereupon to the Company each month, through the date of hearing before me The Union also processed a grievance against the Company to arbitration over the Company's refusal to hire an embalmer at the Geary and Powell Street locations 4 and/or pay the amounts demand- ed B The Alleged December 1974 or January 1975 Interrogation and Threat Barcewski testified that about 2 weeks to a month before Grosse's discharge,' while he was in the dressing room at Church Street, Nicholas Daphne 6 asked him if he was keeping a work log, that he replied in the affirmative, and that Daphne then stated that he would either break the Union or it would break him Aside from the fact the time at which Barcewski placed the alleged remark does not fall within the dates alleged in the complaint (VI(a) & (b), December 1974-January 1975), Barcewski's testimony is weakened by his conces- sion that at the May 30 arbitration hearing he testified under oath that Daphne never questioned him regarding his work log It is further noted the General Counsel stated that no prehearing statement was ever taken from Barcew- ski, which raises some doubt concerning the basis for the allegations in paragraph VI(a) and (b) of the complaint Daphne denied he ever questioned Barcewski about his keeping of work logs or stated to Barcewski he would break the Union or it would break him On the basis of the above factors, I credit Daphne's de- nial I therefore find and conclude that Daphne did not, in December 1974 or January 1975, interrogate Barcewski re- garding his and other employees' union activities by ques- tioning him as to whether he kept a work log or threaten Barcewski that he would discharge employees for such ac- tivities I therefore shall recommend those portions of the complaint so alleging (paragraph VI(a) and (b)) be dis- missed C The Alleged February Interrogation and Threat Galloway testified that in early February he was riding 4 A hearing was held on the Union s grievance before an arbitrator on May 30 The decision had not issued at the time I heard this dispute 5 Grosse was discharged on March 7 6 The Company s answer admitted Daphne was the Company s president, supervisor, and agent acting on its behalf at all times pertinent in the funeral coach with Bernard Gignac and Daphne, that Daphne asked him what was going on with the Union, that he replied Daphne and the Union had a contract long before he was hired and any disputes between Daphne and the Union over that contract were between Daphne and the Union, that Daphne asked him if he was keeping rec- ords, that he replied he was, that Daphne asked him if Barcewski and Grosse were keeping records, that he re- plied affirmatively, and that Daphne closed the conversa- tion by stating the Union once had 110 members, he broke it then, so it has 50 now, he would break it again, that Barcewski and Grosse were strong union men and perhaps he should fire them Gignac corroborated Galloway's testi- mony Daphne denied the conversation ever took place Based upon my observation of Galloway, Gignac, and Daphne wile testifying, I credit the testimony of Galloway and Gignac that Daphne made the statements in question I I therefore find and conclude that in early February the Company violated Section 8(a)(1) of the Act by Daphne's questioning of Galloway concerning whether he and the other embalmers were maintaining records concerning em- balmer work performed for or at the Company's Geary and Powell Street locations and by stating that Barcewski and Grosse were strong union men and ought to be fired D The Second Alleged February Interrogation and Threat Galloway testified that in approximately mid-February, inside the entryway at the Church Street mortuary, Daphne asked him if Barcewski and Grosse were still keep- ing records, to which he replied in the affirmative, that Daphne asked him if he was keeping records, that he again replied in the affirmative, and that Daphne closed the con- versation with a rhetorical question, i e , whether the three embalmers wanted to lose their jobs Grosse corroborated Galloway's testimony Daphne denied the exchange ever took place While it is true that Galloway, in his testimony, placed Grosse in the embalming room with the door open at the time of the conversation and, in his prehearing affidavit, placed Grosse in his company proceeding from the dress- ing room to the embalming room, I nevertheless, in view of their mutual corroboration and their sincere forthright de- meanor while on the stand, credit the testimony of Gallo- way and Grosse 8 I therefore find and conclude that in mid-February the Company violated Section 8(a)(1) of the Act by Daphne's interrogation of Galloway concerning whether the three embalmers were still keeping records of embalmer work 7 The Company challenges Gignac s testimony on the ground no mention of this incident is contained in his preheanng affidavit Gignac explained that the investigator questioned him only about Grosse's leaving him in charge of the mortuary on March 6 and leaving early, the event which precipitated Grosse s discharge The Company also charges Gignac with bias inasmuch as he has left the Company s employ and has a pay claim pending against it I reject those challenges, Gignac was a forthright wit- ness as was Galloway (whose testimony is essentially supported by his pre- hearing affidavit) s By way of contrast, Daphne oftentimes was evasive and shifting in his testimony on several subjects, as shall be developed hereafter in sec F of this Decision DAPHNE SAN FRANCISCO FUNERAL SERVICE 463 performed for or at the Geary and Powell Street mortuaries and by suggesting they risked their continued employment by so doing E The March 1 Threat Galloway testified that approximately 1 week before Grosse's discharge (March 7), while he and Daphne were at the Powell Street mortuary, Daphne stated he let Bar- cewski testify against him in a prior arbitration, but if Bar- cewski or Grosse or Galloway testified against him in the pending arbitration proceeding 9 they could all be fired, and that if the Union won that arbitration, they could lose their jobs, his daughters could lose their jobs, and he might be forced to close the business Daphne denied the conversation ever occurred Based on my observation of Galloway's sincere and forthright manner while testifying, as contrasted with Daphne's evasiveness and sometimes rambling and contra- dictory testimony,10 I credit Galloway's testimony I therefore find that on or about March 1 the Company violated Section 8(a)(1) of the Act by Daphne's telling Gal- loway the embalmers risked discharge if they testified against him in the pending arbitration and further might lose their jobs if the Union won F The Grosse Discharge Grosse was hired by the Company in July 1974 and dis- charged on March 7 He was a duly licensed master jour- neyman embalmer at the time of his hire and worked in that capacity throughout his employment As developed hereafter, Grosse was an independent, self-confident, and articulate person, quick to assert his rights and to speak out in his defense Daphne, a self-made successful businessman who started as an embalmer and built a highly successful business, was an irascible employ- er with a tendency to bully and threaten his employees, to expect a degree of subservience from them, and to resent any expression from his employees other than complete agreement with his views, as indicated by the previous 8(a)(1) findings and as further developed hereafter The General Counsel asserts Grosse was discharged be- cause Daphne realized he was the Union's strongest sup- porter among the three embalmers and because he, along with the other two, was keeping a log of all embalmer work performed at the Geary and Powell Street locations The Company asserts Grosse was discharged after a ser- ies of incidents involving conduct by Grosse which irritat- ed Daphne, culminating in a March 5 incident wherein Grosse left work before the end of his shift without permis- sion, and in violation of company rules and the Company- Union contract There is no question all three embalmers began keeping work logs in October 1974 and continued to maintain them throughout the date the hearing was held in this proceed- ing, it is likewise clear these logs were regularly turned over to the Union by the three embalmers, and the Union, 9 The May 30 arbitration referred to in sec A, above 10 See fn 8 based thereupon, sent monthly bills to Daphne for alleged sums due because of the Company's alleged violations of the Company-Union contract Neither is there any question that Daphne was disturbed over the Union's claim and the possible financial conse- quences thereof, findings have been entered concerning Daphne's repeated questioning of Galloway concerning the log-keeping and his expressed concern over the possible financial consequences were the Union's claims sustained The question is whether the log-keeping figured in Daphne's decision to discharge or whether Daphne dis- charged Grosse because of his growing irritation over Grosse's independent attitude and, as he termed it, "talk- ing back," with the March 5 incident the proverbial final straw Daphne recited eight incidents which led to his decision, after the March 5 incident and his March 6 conversation with Grosse about it, to discharge Grosse These incidents (and one involving a Grosse complaint of an alleged con- tract violation) shall be detailed below The findings there- upon (and the 8(a)(1) findings) illustrate the observations contained in the second paragraph of this section of the Decision In December 1974, in the dressing room at the Church Street mortuary, Grosse stated to Daphne that his pay- check was not correct, Daphne asked Grosse if he meant the hour overtime he was paid, Grosse replied in the affir- mative, Daphne asked what was wrong with the overtime payment, Grosse stated that he was asked to direct a ser- vice and, under the contract, an embalmer is entitled to a fee of $30 for directing a service and he was only paid $9 14, which is an hour of overtime at the regular rate, Daphne replied Grosse did not understand the contract, that was not the way it was, Grosse said he had read the contract and that was the way he understood it, Daphne stated Grosse had not been around long enough to know what the contract meant, Grosse replied that he had asked Barcewski about it before he billed Daphne for the $30 and Barcewski had told Grosse he was acting correctly under the contract, Daphne said Barcewski did not know what the rule was either, and Grosse closed the conversation by stating that he would forget it this time but for Daphne never to ask him to direct a service again Daphne testified one of the reasons he discharged Grosse was his displeasure over the fact Grosse took sal- vage clothing from the mortuary without securing permis- sion therefor Salvage clothing is clothing removed from deceased persons when clothing other than that worn on arrival is supplied by relatives for funeral service and buri- al The mortuary follows the practice of giving such cloth- ing to charitable organizations at regular intervals (when a sufficient amount has accumulated) Grosse conceded he took some garments and did not secure advance permis- sion therefor While it is true Daphne never announced any rule against employees' taking of such clothing, nor spoke to Grosse about the matter (he learned of Grosse 's taking the clothing from Galloway), it is clear that Grosse's action displeased Daphne A second reason which incurred Daphne's displeasure was Grosse's use of the embalming room phone to make 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personal calls and Grosse's objection to Daphne's adjust- ing the phone so it could only receive incoming calls After noting Grosse making personal outside calls after he thought he had the embalming room telephone adjusted so no outside calls could be made, Daphne contacted the telephone company and had the embalming room phone again adjusted so only incoming calls could be received on it Grosse complained to Daphne over the change , assert- ing there were many times he was alone in the mortuary at night (his working hours were 12 noon to 9 p m) and he would have no way to communicate outside if he became sick or were attacked The next incident which displeased Daphne was the opening, without his permission, of a window in the em- balming room which had been nailed shut, which he attri- buted to Grosse There is no question that the window had been nailed shut, that the nails were removed and the win- dow opened, and that Daphne, seeing this, had the window again nailed shut While Daphne testified Galloway told him Grosse opened the window and Galloway testified he told Daphne he did not open it and could not speak for Grosse and Grosse denied opening the window , it is clear Daphne believed he was the culprit Daphne next stated that another reason he was vexed with Grosse was because Grosse spent too much time at the business offices of the mortuary He was unable to pinpoint the times or reasons Grosse was at the office, fi- nally stating he saw Grosse at the office 20 to 30 times over the 8-month period of Grosse's employment He conceded Grosse had legitimate reasons for visiting the offices from time to time Daphne's real reason for his dissatisfaction over the visits emerged when he testified Grosse simply stared at him and refused to reply when he asked Grosse what he was doing at the office While Daphne stated he was also dissatisfied with Grosse's work, stating Grosse was unclean and careless in his work performance, Galloway and Barcewski testified Grosse was neat and meticulous (even more so than they were) and Grosse never was disciplined for his alleged poor work performance I do not credit Daphne on this com- plaint The next incident which incurred Daphne's wrath was Grosse's parking of his car where Daphne parked his own car, and arguing with Daphne when ordered to cease so parking Daphne observed Grosse's car parked under the canopy at the front entrance and asserted the car blocked the entrance so visitors had to walk around it for ingress and egress He told Grosse not to park there and Grosse protested against his instructions to cease parking there Galloway and Grosse testified they regularly moved their cars from the parking lot to spaces between the front entrance and a side entrance to the mortuary after Daphne and others left for the day They testified they moved their cars to that location for security reasons, since Galloway was mugged one evening while going to his car in the un- lighted parking lot when his shift ended at 9 p in They testified their cars did not block ingress or egress to the mortuary The evidence is undisputed that Daphne and his family parked under the canopy in front of the entrance all day and that Galloway and Grosse did not move their cars up to that area until after the family had departed and normal daytime traffic had ceased Galloway and Grosse testified that, when Daphne ob- jected to their parking near the entrance, they ceased to park there Grosse testified that before doing so he object- ed strenuously to Daphne 's order, recited the security rea- sons for which Galloway and Grosse parked near or at the entrance, and argued with Daphne that their procedure was reasonable and did not block anything, to which Daphne replied that only he and his family could park at the entrance The next and precipitating event , which Daphne recited as the "final straw" which caused him to discharge Grosse, was Grosse's leaving work early on March 5 without per- mission and against a contract rule and company require- ment Grosse left the mortuary 21 minutes before the 9 p in end of his shift on March 5 and did not call Daphne for permission to leave early before departing That evening, a number of visitors were still at the mor- tuary to view one deceased and attend an 8 p in memorial service for another at the time Grosse left The Company- Union contract requires a licensed embalmer be present at the mortuary premises at such times in the absence of man- agement The only other mortuary employee on duty at the time was Bernard Gignac, a chauffeur While Grosse asked Gignac to remain until everyone left and Gignac did so, Gignac was alone at the mortuary from approximately 830pm to937pm When Daphne learned of the incident the following day, he approached Grosse and they had the following ex- change Daphne asked Grosse whether he left early the previous night, Grosse replied that he had, Daphne asked him why he left early, Grosse replied that he had run an errand for Daphne the day before on his own time which consumed approximately half an hour and he thought he would take that time back , l i Daphne asked Grosse why he had to be so exact about his time, Grosse said he was not being exact about his time, in fact, he had not even asked for reimbursement for the extra gas he used to run the errand or for the parking fee he had paid , Daphne said he let Grosse park free on his property at the mortuary and perhaps he ought to charge him $5 a day for parking, Grosse replied that was up to Daphne, and Daphne closed the conversation by stating that Grosse's day of reckoning was coming The last reason assigned by Daphne for discharging Grosse was his alleged insubordination The alleged insub- ordination consisted of Grosse's "talking back" to Daphne There are ample instances set out above of what Daphne meant, however reasonable Grosse's arguments and objec- tions may have been Based on the foregoing, I find that the basic reason for Daphne's decision to discharge Grosse was his dislike of Grosse and his displeasure at Grosse's independent atti- tude and tendency to challenge or question any action or instruction by Daphne with which he disagreed , Daphne ii Grosse's testimony is uncontradicted that he performed the errand in question prior to reporting to work at his regular starting time and is cred- ited DAPHNE SAN FRANCISCO FUNERAL SERVICE clearly knew that all three of the embalmers were keeping logs and, while his concern and resentment over their maintaining such logs is clear (see the 8(a)(1) finding en- tered above), in my view the preponderance of the evi- dence will not support a finding that Daphne discharged Grosse because he kept a log but, rather, supports a finding that Daphne discharged Grosse because he disliked Grosse, resented Grosse's independent attitude, and be- came enraged at Grosse's replies when he attempted to censure him over leaving early on March 5 I therefore find and conclude that the Company did not discharge Grosse for engaging in union and/or other pro- tected concerted activities and will recommend that those portions of the complaint so alleging be dismissed CONCLUSIONS OF LAW 1 At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act 2 At all times pertinent, Daphne, the president of the Company, was a supervisor and agent of the Company acting on its behalf 3 In early February, again in mid-February, and on or about March 1, the Company violated Section 8(a)(1) of the Act by Daphne's interrogation of Galloway concerning his and other employees' union and/or other protected concerted activities and by threatening Galloway with his and other employees' discharge for engaging in union and/ or other protected concerted activities 4 The Company did not discharge Arthur Grosse for engaging in union and/or other protected concerted activi- ties and did not violate Section 8(a)(1) and (3) of the Act by discharging Grosse 5 The Company did not violate Section 8(a)(1) or (3) of the Act other than as set forth in paragraph 3, above 6 The above unfair labor practices affect interstate commerce as defined in the Act THE REMEDY Having found the Company engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend the Company be directed to cease and desist therefrom and to take affirmative action designed to effec- tuate the purposes of the Act Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed ORDER 12 465 Cathay (Wah Sang) d/b/a Daphne San Francisco Fu- neral Service, San Francisco, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from interrogating its employees concerning their and other employees' union and/or other protected concerted activities and threatening its employ- ees with discharge for engaging in such union and/or other protected concerted activities 2 Take the following affirmative action deemed neces- sary to effectuate the policies of the Act (a) Post at its premises copies of the attached notice marked "Appendix " 13 Copies of such notice shall be fur- nished to the Company by the Regional Director for Re- gion 20, signed by an authorized representative of the Company and posted upon receipt thereof, and maintained for at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to in- sure that such notices are not altered, defaced, or covered by other material (b) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 12 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions , and recommended Order herein shall, as 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 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their activities or the activities of other employees on behalf of Mortuary Employees' Union, affiliated with Seafarers' International Union of North America, AFL-CIO, or any other labor organization, or any other concerted activities protected under the Nation- al Labor Relations Act, as amended WE WILL NOT threaten our employees with discharge for engaging in activities on behalf of the above Union or engaging in any other concerted activities protected under the Act CATHAY (WAH SANG) d/b/a DAPHNE SAN FRANCISCO FUNERAL SERVICE