Haynie Electric Co., Inc.

HAYNIE ELECTRIC CO. 353 Haynie Electric Co., Inc.; Baker Electric Company, Inc.; Summerall Electric Company, Inc.; A. C. Electric Company, Inc.; and its agent , James F. Summerall and International Brotherhood of Elec- trical Workers, Local Union No. 474. Cases 26- CA-5488, 26-CA-5502-1, 26-CA-5502-2, 26- CA-5502-3, 26-CA-5502-4, 26-CA-5685, and 26-CA-5688 June 30, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 12, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had 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 as modified below. Contrary to the Administrative Law Judge, we find that Johnnie Hall was not constructively dis- charged by the Respondent on October 1, 1974, for union reasons, but that he voluntarily quit his job. Because Supervisor Winter criticized him for his handling of certain work tickets and told him it "Just don't look like you're going to make it, does it," Hall quit his job, fearing that he would be discriminated against as had other union adherents. The Adminis- trative Law Judge found that Winter harassed Hall and precipitated the ticket incident for the purpose of bringing about Hall's departure for union reasons, since, except possibly for employee McClure, only Hall was left of the employees who attended the union meeting of September 5. But Hall admitted that he had been questioned about inaccuracies and omitted information on his work tickets half a dozen times before the September union meeting. It there- fore would be improper to find that criticism of him on the occasion in question was motivated by differ- ent considerations because, in the meantime, Hall had demonstrated a prounion adherence. And, not all of those who attended the September meeting, in- cluding McClure, were victims of discriminatory treatment. In the circumstances, we find that the General Counsel has failed to establish that Respon- dent played the sinister role in Hall's departure found by the Administrative Law Judge. Nor do we adopt in its entirety the remedy recom- mended by the Administrative Law Judge. Although Respondent's unfair labor practices were of a serious nature, they were not so aggravated or pervasive as to make necessary the extraordinary features of the recommended remedy. Respondent has already of- fered reinstatement to the discharges, which all but Stroecker accepted in September 1975. And we be- lieve that the order we shall issue, with its cease-and- desist provisions, the affirmative action required to fully remedy the discharges, and our normal posting requirement, should adequately serve to effectuate the policies of the Act in the circumstances of this case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Hay- me Electric Co., Inc.; Baker Electric Company, Inc.; Summerall Electric Company Inc.; A. C. Electric Company, Inc.; and its agent, James F. Summerall, Memphis, Tennessee, and their respective officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modi- fied: 1. Delete the name of Johnnie Hall from para- graph 2(a). 2. Substitute the following sentence for the first sentence of present paragraph 2(e), retaining the footnote 7: "(e) Post at their offices and wherever else notices to employees are customarily posted copies of the attached notice marked 'Appendix."' 3. Delete paragraphs 2(c) and (d) and reletter pre- sent paragraphs 2(e) and (f) as 2(c) and (d). 4. Substitute the attached notice for that of the Administrative Law Judge. i Inasmuch as we agree with the Administrative Law Judge 's determina- tion on the merits that McDougall , Churchill, and L Hall were not supervi- sors, we find it unnecessary to pass upon the validity of his finding that Respondent had waived this defense because it was not asserted in a timely fashion The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 225 NLRB No. 34 354 DECISIONS OF 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 offer the following employees rein- statement to their former jobs or, if such jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for earnings lost since their discharges: Billy Wayne Noe, Marion Michael Ames, Lester Hall, Terry Kurt McDougall, Michael A. Stroecker, Lester Churchill, and Jesse Burlison. WE advise our employees that they have a right to join or assist IBEW, Local Union No. 474, or any other union. WE WILL NOT discharge, threaten to discharge, or take any other discriminatory or harassing ac- tion against employees for testifying in Labor Board cases or for joining or assisting or sup- porting IBEW, Local Union No. 474. WE WILL NOT tell employees that we have dis- charged other employees for union consider- ations and that employees who join IBEW, Lo- cal Union No. 474, cannot work for us. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL NOT interrogate employees or ask them to report on any other employees or spy on them or indicate we have spied on them regard- ing union membership or meetings or any other union activity. HAYNIE ELECTRIC CO., INC.; BAKER ELECTRIC COMPANY, INC.; SUMMERALL ELECTRIC COMPANY, INC.; A. C. ELECTRIC COMPANY, INC.; AND ITS AGENT, JAMES F. SUMMERALL DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Hearing in this matter was held on various dates, beginning on June 16, 1975, and concluding on September 9, 1975, upon charges filed by the Union, a complaint issued by the Gen- eral Counsel on April 29, 1975 (the complaint was later amended), and answers filed by Respondents. Upon the entire record in the case,' including observa- 1 1 desire to acknowledge the excellent briefs filed in this case tion of the demeanor of witnesses and consideration of brief s,2 I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT COMPANIES Haynie Electric Co., Inc. (Haynie), Baker Electric Com- pany, Inc. (Baker), Summerall Electric Company, Inc. (Summerall), and A. C. Electric Company, Inc. (A. C.), are Tennessee corporations engaged in the business of commercial and residential electrical contracting. The par- ties agree, and I find, that these companies meet the Board's jurisdictional standards and are engaged in com- merce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union No. 474, herein called the Union, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The named corporate Respondents are affiliated busi- nesses with common officers, directors, and operators, and constitute a single-integrated business enterprise and a sin- gle employer, and this integrated enterprise had a common labor policy affecting the employees of all companies. James F. Summerall, president of Summerall and also a named Respondent, owns all or a controlling interest in the corporate Respondents; and all officers and managing agents of these companies are "under the orders and super- vision of, and obey the instructions of Respondent [James F.] Summerall." Respondents maintain their offices in Memphis, Tennessee I shall refer to the Respondents col- lectively as the Respondent, unless separate identification be necessary; and all dates herein are in 1974 unless stated otherwise. The complaint alleges that Respondent engaged in vari- ous violations of Section 8(a)(1) of the Act and that it also violated Section 8(a)(3) of the Act by discharging six em- ployees 3 (two on September 9, three on September 24, and one on December 17) and by constructively discharging a seventh employee 4 on October 1. The complaint, as amended, alleges that Respondent further violated Section 8(a)(3) as well as 8(a)(4) by terminating Lester Churchill a second time on July 11, 1975, and also violated Section 8(a)(3) by releasing Jesse Burlison on that same date. The Union Meeting of September 5, 1974 On the evening of September 5, 1974, a group of Respondent's employees attended a meeting at the Union's Memphis office. These employees were Barney McClure, Lester Hall, Terry McDougall, Michael Stroecker, Michael 2 Errors in the transcript have been noted and corrected 3 Billy Wayne Noe, Manon Michael Ames, Lester Hall, Terry Kurt Mc- Dougall, Michael A Stroecker, and Lester Churchill 4 Johnnie Hall HAYNIE ELECTRIC CO. 355 Ames, James Smith, Jeffery Richerson, Billy Wayne Noe, and Johnnie Hall. Each of these employees, except Stroecker, signed a union card at the meeting. By the year's end, none of these employees was on Respondent's payroll. Noe and Ames were terminated on September 9; Hall, Mc- Dougall, and Stroecker were terminated on September 24; and Churchill was terminated on December 17. Smith and Richerson quit in September and McClure in October; J. Hall also quit in October under circumstances alleged by the General Counsel as constituting a constructive dis- charge. A former employee, Thomas Doyle, had been rehired by James Summerall in 1971. Doyle testified that he there- upon became a "paid snitch" for Summerall and that Sum- merall used him "to go around and get .. . information." Although Summerall denied having had any union discus- sions with Doyle, Doyle credibly testified that Summerall called him at home in early summer of 1974 and told him that he (Summerall) had heard that some of the employees had been to the union hall and Summerall told Doyle "to inquire around and get all the names and let him [Summe- rall] know about it." Sometime in August 1974, Summerall told Doyle to "inquire around and find out" if Churchill had been to the union hall, explaining that he had heard that Churchill had "something to do with the Union" and he gave Doyle his "personal home" phone number with instructions to make progress reports on the inquiry. Doyle truthfully testified further that he asked J. Summerall whether he (Doyle) should join the Union and attend its meeting as a means of obtaining information about union activities of other employees and that Summerall told him to do so. Doyle thereupon arranged to appear before the union executive board early in September but Summerall instructed him at the last moment not to go, Summerall explaining that he (Summerall) "would send somebody up there [to the union hall] to get all the information he need- ed... . 11 Also that summer, according to Doyle, Doyle called and informed Summerall that he (Doyle) had heard that em- ployee Billy Holley had been to the union hall. Within an hour, Riding Superintendent Charles Ellis approached Doyle at a worksite and said he (Ellis) had information that Holley had joined the Union. Ellis told Doyle, accord- ing to the latter's undenied and otherwise credible testimo- ny, that "we can't just fire him [Holley] with no cause, so we'll have to force him to quit" and Ellis then told Doyle that Holley would be assigned "digging ditches with a shovel and that'll be the only thing he can do, unless he wants to quit." Doyle thereupon advised Holley he was to be the "permanent ditch digger" and it was either that or "quit." Holley quit. A month or so later, Holley sought reemployment from Larry Murphy (general manager of Respondent Baker), and he told Murphy at the time that he would not engage in any further union activities. (Mur- phy denied that the Union was mentioned in any conversa- tion he had with Holley.) Murphy rehired Holley with the admonition that Holley would be fired and not taken back if Holley went "back up there [to the Union]." Murphy also told Holley that he would "find out about it ["if you do go back up there"] because they'll tell me about it." Murphy did not explain who the "they" was. Steve Zelinski was another employee whom Summerall hired and used as an "undercover man," with instructions to win the "employees' confidence, be their friend," and to see if anyone was violating any company rules respecting thievery, loafing, etc. Summerall also told Zelinski, accord- ing to the latter's credible testimony, to report "promptly and the faster, the better" if Zelinski heard anything about unions. Summerall testified that he had hired Zelinski for "intelligence work," and-at a time Summerall thought was early in 1974-he admittedly asked Zelinski "to find out if the employees were interested in the union." Zelinski credibly testified that Summerall called him several times inquiring whether he had heard any employees "talking about unions." Respondent also conducted employee meetings ("pep talks from time to time," according to Summerall), at which the Union was discussed. Doyle testified that he at- tended one such meeting in June or July 1974, when com- pany representatives indicated that "any man that talked to the Union representative or had anything to do with him, would be fired." At one meeting, J. Summerall asked an employee-one "Mac" MacCarthy-to tell the employ- ees of MacCarthy's financial losses resulting from a layoff at a union shop, and Summerall testified, in explanation, that he (Summerall) had heard that "union men" had been talking to the employees and that he considered it "desir- able" for MacCarthy to relate these experiences to the other employees. The original charge in this case was filed on February 28, 1975, and those of the foregoing items that presumably occurred before the operative period under Section 10(b) of the Act are not alleged as violations in this proceeding. We now return to events after the September 5 union meet- ing. The day following the meeting, Superintendent Ellis asked Terry McDougall, according to the latter's credible testimony, whether McDougall had been to the union hall. McDougall replied he had not, whereupon Ellis comment- ed that "I think they got your name mixed up with some- body else's, but I'm not sure." Ellis, while denying this particular exchange, testified that he did ask McDougall whether the latter "[had] been having dealings with any of the union people." Ellis testified that McDougall replied that a union person had spoken to him about the Union but that he (McDougall) was not interested in it, and that he (Ellis) said, "that's good." On September 8, Haynie employee James Smith received a phone call at home from Haynie Superintendent Paul Jackson. According to Smith's credible testimony undenied by Jackson, the ensuing conversation occurred: . .. he [Jackson] said Jimmy do you know of anybody going to the union hall Thursday night? And I said no, and he said well, there were some guys from your job that went up there and he said who are some of the guys who have been working on your job? Well, Rich- ard has been on my job. He said yeah, Richard Long was one of them. And I said well, Richard Long has been in the union for about six months. And he said well, name the other guys who have been working on yourjob. And I said Mike Ames, Billy Noe, Jeff Rich- 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erson, and he said yeah, they were up there. And he said do you know why there were up there? And I said I don't know why, I guess they were tired of the way things were going where they were at. And he said well, just what I said, Paul. If I got tired of something I would leave myself. And he said well, OK, we'll talk to you later. Employee Barney McClure testified that, after attending the September 5 union meeting, he told Summerall he wanted to talk with the latter. Summerall asked McClure to come to his office on Monday morning (September 9), which McClure did. While mistaken or not quite certain of some details, McClure credibly testified and Summerall in effect denied and I find that Summerall told McClure on this September 9 occasion that he (Summerall) had the names of the men who were at the September 5 union meeting, that he had already let one of the men go (Noe and Ames were fired on September 9), and that "the union had been fooling with him for 26 years [and] they weren't going to get anywhere." Noe and Ames Ames was hired by Respondent J. Summerall in Febru- ary 1973, on which occasion Summerall inquired whether Ames was a union member and Ames said he was not. Ames received his last wage increase in April or May 1974, and his hourly rate was $4.75 in September 1974. Noe was hired by J. Summerall in April 1970 and left Respondent's employ in 1973; he returned in early 1974, and his hourly rate of pay was $5 at his discharge in September 1974. It is recalled that employee Smith had informed Superintendent Jackson on September 8 that Ames and Noe had attended the union meeting on September 5. Noe and Ames were part of a five-man crew (including Jeff Richerson, Barney McClure, and leadman James Smith) working on a continental village job in September 1974. On September 9, Superintendent Ellis informed Noe and Ames that they were terminated (it is not clear whether words of layoff or discharge were used) but without stating the reason therefor either to Noe or Ames or to the three other employees on the job, and Smith and Richerson thereupon quit. (Smith and Richerson'testified, in effect, that they quit in protest because they believed Noe and Ames were discharged for union reasons; earlier that morning they had been discussing Superintendent Jackson's conversation with Smith, as set forth above.) Not until they picked up their separation notices and final checks on September 13 were Noe and Ames advised that the purported reason for their discharge was "loafing on the job." A day or so after releasing Noe and Ames, Ellis sepa- rately told McDougall and L. Hall, according to the latter's credible testimony, that Ellis had been instructed to fire Ames and Noe for "messing around with the union." Ellis also inquired of McDougall at the time whether McDou- gall knew if Smith had been "going to the union hall." Respondent's version of the Ames-Noe discharge is based principally on testimony of Superintendent Ellis and Paul Summerall (manager of Respondent Haynie and son of Respondent J. Summerall). Respondent thus asserts that Ellis visited the continental village project on Friday, Sep- tember 6, about 4 p.m. or 4:15, which was before the regu- lar quitting time of 4:45 p.m. for all except Smith and one other employee who would have usually worked until 5:15 p.m. Ellis did not see Noe, Ames, Richerson, and Smith on the job, and about 15 minutes later he saw them playing pool and ping pong in the recreation room at the apart- ment house project. Ellis then told the men to check out if they were finished working for the day, and he uttered no word of criticism or warning to them. On Monday, Sep- tember 9, Ellis purportedly advised Paul Summerall of the foregoing September 6 events and Summerall purportedly instructed Ellis to discharge Ames and Noe, but to retain Smith and Richerson until these latter two could be re- placed. P. Summerall testified that he decided to retain Smith, temporarily at least, because he was the leadman and was necessary to continue the job, and that he also decided to retain Richerson as Smith's helper. P. Summe- rall denied any knowledge of Ames' or Noe's union activi- ties and he also testified that he was not at all concerned about employees joining the Union so long as they did their work. Smith, Ames, Richerson, and Noe testified, in effect, that they had quit work early on September 6 but that they did so in accordance with an arrangement they had with Ellis to take off early, in the nature of compensatory leave, in lieu of submitting a claim for 2 hours' overtime work which they had performed but which had not been previ- ously authorized. The record contains the details of this arrangement with Ellis, and it is unnecessary to recite those details here except that I am satisfied that the events oc- curred as Smith testified, with substantial corroboration by Noe, Ames, and Richerson. Smith was a completely trust- worthy witness and his testimony is to be believed as against the testimony of Summerall and Ellis. L. Hall, McDougall, and Stroecker The complaint alleges that Respondent unlawfully dis- charged L. Hall, McDougall, and Stroecker on September 24, 1974. Respondent claims that it laid off these employ- ees in a reduction in force. Respondent's supportive testimony for its defense re- specting these three employees is as follows: The four re- spondent companies interchange employees, as needed and on a billing basis, and the borrowed employee is returned to his own "lending" company when the borrowing compa- ny no longer needs him; "if the loaning company no longer had an available position when the borrowed employee re- turned to work the employee was laid off"; Respondent Company Summerall laid off 36 employees between July 2, 1974 and September 24, 1974; the companies did not have a seniority system "in the usual collective bargaining con- text" and the layoffs were consequently made on consider- ation of "ability, experience and general impressions of the employees" in terms of available jobs, and when a reces- sion "necessitated work force reductions, the companies tightened up in terms of retaining the best men. The tight- ening-up affected the cases of Stroecker, McDougall and L. Hall " HAYNIE ELECTRIC CO. 357 Respondent J. Summerall hired L . Hall for Respondent Haynie's payroll in March 1972 , and told him at the time that Respondent was a "non-union" company. Hall pro- gressed from an hourly rate of $2.50 to $5, and in Septem- ber 1974 he was on loan as a leadman on a Respondent Baker project at Tanglewood Oaks (Sycamore View). McDougall was hired by J. Summerall in April 1973 and assigned to Haynie, at a $5 hourly rate as a journeyman electrician . He was earning an hourly rate of $7 in Septem- ber 1974, his last increase received shortly before his termi- nation, at which time he was on loan as a leadman on Baker's Fairfax Manor job. Stroecker was hired for electrical work at Respondent Summerall in 1971, and at the time of his termination in September 1974 he was on loan as a leadman on Baker's Tanglewood Oaks project. His starting rate of pay was $2.50 an hour ; he was earning $4 in 1974. Superintendent Ellis notified McDougall and Hall of their respective layoffs on September 24. Ellis told Mc- Dougall, according to the latter's credible testimony, that Paul Summerall had instructed Ellis to lay off McDougall and that he (Ellis) did not know the reason for the termina- tion. Ellis further told McDougall at the time that Paul Summerall was laying off all his good men and that Ellis did not know where he would get men to do the work. (At the time, the Fairfax Manor project was only half complet- ed). According to Hall, an additional 3 to 4 months' work remained to be done at the Tanglewood Oaks project (Stroecker's estimate was 3 to 7 months), and Hall further credibly testified that Ellis also told him that he (Ellis) didn't know the reason for Hall 's layoff and that Hall should tell McDougall that Ellis was not responsible for either Hall's or McDougall's layoff and that they should let him (Ellis) know if either needed a recommendation. Ellis meanwhile also told Doyle , according to Doyle's credible testimony, that J . Summerall had instructed Ellis to fire Hall and that Ellis couldn't understand why, because Hall "was doing a good job." (J. Summerall testified he did not know who made the decision to terminate Hall, but that it could have been he ; he also testified to a similar effect as to the other alleged discriminatees in this case.) Paul Summerall testified that Baker Manager Murphy informed him on September 24 that Baker no longer need- ed McDougall's services because Murphy required the work for his own (Baker) employees . Summerall further testified that McDougall was not needed on any Haynie projects and that, without consulting anyone, he then di- rected McDougall's selection for layoff because McDou- gall was one of his "lesser" men and because of what Re- spondent asserts to be McDougall's "bad attitude." Summerall referred in this connection to the fact that Mc- Dougall had "gigged me for raises" and had done "poor" work. Respondent had in fact given McDougall a wage increase only a month before , and Summerall later testi- fied, inter alia, that McDougall was better than some em- ployees whom Respondent retained . Summerall denied any knowledge that McDougall had been to the union hall. Ellis testified that Summerall did not tell him why Mc- Dougall was selected for layoff and he denied having relat- ed to Summerall his aforementioned conversation with McDougall on September 6 concerning the Union. Paul Summerall denied knowledge of Hall 's union activ- ities and testified on direct examination that he selected Hall for layoff because of a dispute Hall had with another contractor on a job . Summerall referred to the matter as a "personality problem" and he then testified that he did not even speak to Hall concerning the dispute because "I was planning on laying him off pretty soon anyway, and that was a real fine reason." Robert McBride is general manager of Respondent Summerall . McBride denied having any knowledge of Stroecker's union activities and he testified that he selected Stroecker for layoff because of an "accumulation of things" including the fact that Stroecker called in late "numerous times" in 1973 and 1974 and that he spoke to Stroecker concerning this lateness in July or August 1974. The credible testimony establishes that Stroecker had been late because of a transportation problem related to a man- tal situation, but that this lateness occurred only during a 2-month period in 1971 , and that he received no warnings concerning such matter since then , and that he had been given a wage increase in March 1974. The record shows that Respondent had approximately 233 electrical employees on its payroll ending July 2, 1974, and that this number was reduced to approximately 84 by August 30, 1975. Hall, McDougall, and Stroecker were se- parated in September 1974, and the record shows, inter alia, that Haynie and Baker nonetheless hired and rehired employees while laying off others in September , October, and November, 1974. When asked concerning the quali- ties used by Respondent in designating a leadman , Gener- al Manager Murphy enumerated "honesty, a will to work, fair intelligence . . . competency . . . [and] the ability to do good electrical work." Johnnie Hall The General Counsel alleges that Respondent harassed and constructively discharged Hall on October 1, 1974, for union reasons . Hall attended the union meeting on Sep- tember 5, the only employee of Respondent A. C. Electric to do so. Hall's employment with Respondent began in 1971; he is a brother of Lester Hall whom Respondent let go on September 24. Hall was required to prepare certain records or tickets in connection with his operations , and he had turned in such records on a South Perkins Road project sometime before the aforementioned union meeting. Hall's supervisor, Gene Winter (superintendent of A. C.), inquired about the tick- ets toward the end of September 1974 and he told Hall that Respondent did not have or could not find the records and he instructed Hall to return to the project and prepare new tickets. When Hall submitted new tickets, Winter com- plained that one particular ticket did not contain the cor- rect address of the job. Hall disputed this, and Winter threw the paper to the floor and walked off with the com- ment, "Just don't look like you're going to make it, does it.19 Hall called in sick the next day, and later that day he quit. Hall testified that Respondent had not previously 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "jump[ed] all over me" concerning the tickets, although he did testify that even before the union meeting Respondent had spoken to him about omitted information or inaccura- cies on tickets he had submitted. Hall testified that his rea- son for quitting was his belief in the circumstances that Respondent would let him go at any time because of what had happened to the other employees (Noe, Ames, L. Hall, McDougall, Stroecker, etc.) who attended the September 5 union meeting. Churchill Churchill was hired as an electrician at Summerall in 1969, and was transferred to Baker some 2 years later. He advanced from an hourly rate of $3.25 to $6 .25, his last increase being received a month or two before his dis- charge in December 1974. Respondent J. Summerall and other supervisors had complimented Churchill's perfor- mance, and Churchill had never been criticized during his entire employment period . Churchill, as the General Coun- sel asserts, had indeed been a "model" employee. At the time of his discharge in 1974 , Churchill was a leadman at Respondent's Tanglewood Oaks project. It is recalled that , in or around August, J. Summerall had instructed Doyle (the self-styled "paid snitch") to find out whether Churchill had been to the union hall, and Doyle further credibly testified that he informed Summerall a day or two later that he (Doyle) had no information that Churchill had visited the Union. Sometime in November, according to Churchill's credible testimony , Baker Manag- er Murphy asked Churchill , "what's going on" and said he "[had] information that you've been to the union hall . . [and] were seen there ." Churchill denied such activity to Murphy, and Murphy then directed him to J. Summerall's office. In an ensuing conversation, according to Churchill's credible testimony denied by Summerall , Summerall told Churchill that "It's possible that we were mistaken . . I want you to swear to me that you haven't been to the union hall." Churchill swore to such effect, and Summerall ended the conversation with "O.k., that's all." The following month , on December 17, a private investi- gator-one Graydon Tines-appeared on the jobsite while Churchill and three other employees were taking a mid- morning coffeebreak . Tines told the men that J . Summerall 5 Murphy testified as follows concerning this incident Lester [Churchill] had come into the shop one morning to service his vehicle, and I had heard some rumors that he was contemplating going into the Union and so I just asked him Lester, can you and me talk private? And he said we can, so we went upstairs by ourselves in the tool room, and he went in the door and I w-nt in the door and I said what's going on9 In general terms what's happening , and he said not much and I said I heard you planned on going to the Union and he said no, and I said well , I heard it rumored around and I was at the supply house the other day and I heard several electricians talking about it and they were talking about loud enough so I could overhear and I suppose purposely, I don't know , but I did overhear them You've been with me a long time and you're a leadman, of the crew on the job, and I would just like to know what your feelings was, you know if you go into the union you can't work for a non-union contractor , and they'- ve got some kind of stipulation that they use, they have a grievance some way that you can 't work for a non -union contractor, and that was-he said I haven't been up there and I'm not interested and I said OK let's go to work had engaged him to investigate losses of equipment and that he would be checking the job from time to time. Tines invited Churchill aside for a private conversation and men- tioned various job-related matters, including pilfering, and said he would make periodic visits to the project. Accord- ing to Churchill's credible testimony denied by Tines, Tines also inquired whether Churchill had been to the union hall, and Churchill said he had not, and Tines also asked whether Churchill "discuss[ed] the Union on the job" to which Churchill replied that "we have talked about it, dust general conversation." Shortly later that day, Manager Murphy told Churchill that J. Summerall had instructed Murphy on a two-way radio to fire the crew for "loafing," and Churchill ex- plained to Murphy that the men were not loafing but had been on a morning break on the occasion of Tines' visit earlier that day. Murphy then discharged Churchill but not the other three crewmembers. Respondent asserts that it has a rule prohibiting sitting down during a break and that it discharged Churchill for such reason. (Tines testified that J. Summerall engaged him early in November to check on losses of materials at Tanglewood Oaks and two other jobsites, that he did not speak to any- one at the Tanglewood project until December 17, that he did not again visit the Tanglewood site , and that he gave up his investigating role with J. Summerall on or about January 1, 1975. Tines further testified that he informed J. Summerall that he found the men on a coffeebreak on the occasion of his December 17 visit to the project, that he did not tell Summerall the men were loafing, and that Summer- all did not mention that taking a coffeebreak was against company rules or that he (Tines) should report any other instances of finding employees on a coffeebreak. Tines fur- ther testified that he told Churchill he (Tines) was not in- terested in any union matters.) Respondent variously contended and witnesses variously testified that Respondent's work rules (1) prohibited breaks entirely, (2) permitted only drinking a soft drink while con- tinuing to work, and (3) permitted drinking a soft drink while not working but only if the employee were standing at the time. Riding Superintendent Ellis testified , in effect, that he did not consider an employee to be loafing who sits down while having a soft drink and that he had not been otherwise instructed by Paul Summerall or Murphy. James Thompson was one of the men on the break on the occa- sion of Tines' visit to the Tanglewood Oaks job on Decem- ber 17, and Thompson testified that J. Summerall told em- ployees on December 18 that he did not authorize breaks. Thompson truthfully further testified that he had never be- fore been told that company rules prohibited any regular breaks, that the employees on the job were on a break at the time of Tines' visit, that employees regularly took two short breaks each day-both before and since December 17, and that Murphy told the men that Churchill had been fired for "laying down on the job" but without explaining in what respects Churchill had been "laying down." Churchill and Burlison Baker Manager Murphy rehired Churchill on May 12, 1975, and let him go again on July 11 at which time Re- HAYNIE ELECTRIC CO. 359 spondent also released Jesse Burlison, an experienced elec- trician who had been working with Churchill on a Charter Oaks job. While both Churchill and Burhson were in- formed by Manager Murphy that they were "laid off," their separation notices stated they were "terminated"; and when Churchill inquired why Respondent had not checked the block on the notice which indicated a layoff for lack of work, Murphy replied that the separation notice was pre- pared thusly "on advice of counsel." The General Counsel alleges that this second termina- tion of Churchill also violated Section 8(a)(3) of the Act, as well as Section 8(a)(4)-(Churchill testified in this proceed- ing on June 17 and July 2, 1975)-and that Respondent unlawfully terminated Burlison in order to lend substance to Churchill's termination. The union campaign had con- tinued meanwhile, and a representation petition was filed on August 19, 1975, and Churchill credibly testified that, sometime after he was recalled, Ellis asked him "something about was we going to have a union election and I told him I didn't know anything about it." Respondent contends that it rehired Churchill only tem- porarily until the Charter Oaks project would be completed and that it accordingly terminated Churchill and also re- leased Burlison at the completion of that job. Murphy testi- fied that it was "on advice of counsel" that he rehired Churchill for such limited purpose because "it would be a good economic move." Murphy was unable to explain why recalling Churchill was a "good business" move. Murphy testified, in effect, that he did not then place Churchill on available residential work because Churchill had, more re- cently, been doing apartment work and that Churchill's past work on apartments had been slow. Before his em- ployment at Respondent, Churchill had done housewiring work under the supervision of one Jimmy Herndon at an- other establishment (Jett Electric Company) and he subse- quently worked under Herndon at Respondent. The record establishes that he had never been criticized by Herndon or any other supervisors concerning his performance of housewiring functions. Like Churchill, Burlison had also performed housewiring under Herndon at Jett. The record further shows that Respondent rehired other employees shortly before and even after Churchill's and Burlison's July 11, 1975, termination. Concluding Findings This record establishes a flagrant course of conduct by Respondent James F. Summerall and his subordinate man- agement officials and representatives in seeking to root out and stifle the organizational efforts of Respondent's em- ployees. Respondent has long been opposed to the union- ization of its employees, it has a right to be, and it is also free to communicate such views to its employees. N L.R.B. v. Gissel Packing, Co., Inc., 395 U.S. 575, 618 (1969). But it may not impose those views on employees and rid itself of employees holding differing views and who otherwise en- gage in protected activities under the Act. This record shows among other things: Coercive interrogation concern- ing their own and other employees' union activities-by Respondent James F. Summerall, Superintendent (or Gen- eral Foreman) Ellis, Superintendent Jackson, General Manager Murphy, Agent Tines; surveillance, giving im- pression of surveillance, or instructing employees to obtain information concerning union activities-by James F. Summerall, Superintendent Ellis, General Manager Mur- phy; telling employees that Respondent discharged other employees for union reasons-by James Summerall, Super- intendent Ellis. As outlined above, the facts and circumstances are such in my opinion that it is unnecessary to restate the individu- al cases of discrimination alleged here. Considering each situation alone as well as in the context of the entire case, the record overwhelmingly establishes in my opinion that Respondent terminated Noe, Ames, L. Hall, McDougall, and Stroecker because of their union activities. I also find that Respondent terminated Churchill in December 1974 because of his suspected union activities. Churchill was re- hired in May 1975, about a month before this hearing be- gan; he testified as a witness for the General Counsel on June 17, 1975, and was terminated a second time on July 11. Churchill's testimony is set forth above, and he was the only employee to testify in behalf of the complaint while on Respondent's payroll. Whatever question, if any, Re- spondent may have had originally as to Churchill (it is recalled that Churchill was discharged in December on suspicion of union activities and sympathies, rather than for actual activities or sympathies as in the case of the other discriminatees), his testimony adverse to the Respon- dent resolved the matter for Respondent. I conclude that the record preponderantly establishes that Respondent dis- charged Churchill in July 1975 for union reasons as well as for his testimony in this proceeding, and it also establishes, as the General Counsel alleges, that Respondent terminat- ed Burlison at the same time in order to support Respondent's purported reason for the second termination of Churchill. Finally, there is the matter of Johnnie Hall's alleged con- structive discharge in October 1974. By that time, except possibly for McClure who quit some time that month-the record does not show exactly when-only Hall was left of the employees who had attended the union meeting of Sep- tember 5. Respondent's design for these union sympathetic employees is abundantly clear in this record, namely, to be rid of them and Hall was aware of it. Supervisor Winter told Hall that Hall's days with Respondent were num- bered, and I find that the record preponderantly estab- lishes that Winter harassed Hall and precipitated the "tick- et" incident for the purpose of bringing about Hall's departure for union reasons. Supervisory Defense-McDougall, Churchill, and L. Hall At the start of the hearing as well as during presentation of the General Counsel's case-in-chief, the Respondent was asked to explicate its defenses as to each allegation of dis- crimination, and it did so. Neither in its answer filed in this matter nor dunng the General Counsel's case did Respon- dent claim or even suggest that McDougall, Churchill, and L. Hall were supervisors within Section 2(11) of the Act and that it was therefore entitled to discharge or otherwise discriminate against them with impunity for union reasons. Moreover, during a colloquy early on in the hearing when 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I indicated my understanding that Respondent was not as- serting a supervisory defense, Respondent said nothing to the contrary. It was not until Respondent was putting in its case and after the General Counsel had concluded his case-in-chief, that Respondent claimed for the first time that McDougall, Churchill, and L. Hall (Stroecker apparently also was a leadman) were statutory supervisors and not employees. The General Counsel objected to the belatedness of such defense and I originally overruled his objection. I later re- considered the matter and advised the parties that I would reserve ruling on the General Counsel's objection and meanwhile receive evidence as to supervisory status and that I would ultimately resolve the matter in my Decision on the case. The question of supervisory status in a discrimination case is hardly a matter which, like the Board's statutory jurisdiction, may be raised at any time and I now conclude that Respondent should be held to have waived the matter here for not having urged such defense in timely fashion. KFXM Broadcasting Company 183 NLRB 1187, 1203 (1970). I therefore sustain the General Counsel's objection and thus strike the supportive testimony for Respondent's contention, the effect being that such evidence is now in the record as an offer of proof. Nevertheless, and as Respondent's evidence on the matter was received at the hearing, I shall decide the issue on such evidentiary show- ing in case the Board disagrees with my procedural ruling in this respect. A leadman in this case is usually a journeyman electri- cian working at his trade with a crew of electricians and helpers. He may be a leadman on one job today and not on another of Respondent's jobs tomorrow; his hourly wage rate is not any higher when he happens to perform as a leadman. The leadman has a key to trailers on a fob where tools and equipment are stored and he opens the storage places in the morning and secures them at night; he pre- pares material lists at the end of the day and notifies Re- spondent of needed supplies and he also tells Respondent when a particular job is completed; he lays out work for the fellow crewmen and may tell them "to do this or to do that," but he does so on a routine basis without exercising any independent judgment so far as the record indicates; he reports to a job a half hour before other crewmen and leaves a half hour later in order to perform his extra chores (on some jobs, if not all, other crewmen also work an extra hour on a rotation basis); a riding superintendent regularly visits the jobs. Leadmen have never hired or fired employ- ees, nor, so far as the record indicates, have they ever effec- tively recommended such action or any other individual personnel action. While Paul Summerall testified that lead- men are not authorized to hire, he also testified that they are empowered to discharge employees in certain circum- stances; however, there is no competent credible testimony that leadmen have been informed to such latter effect and the record, in fact, shows they have not been so advised. In the context of this case (and recalling Manager Murphy's description of leadman qualities), a leadman is "merely a superior workman or lead man who exercises the control of a skilled worker over less capable employees" rather than "a supervisor who shares the power of manage- ment." N.L.R.B. v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911 (1959); N.L.R.B. v. Fred Stark et al., 525 F.2d 422, 431 (C.A. 2); N.L. R. B. v. Beaver Meadow Creamery, Inc., 215 F.2d 247, 251 (C.A. 3, 1954); Poultry Enterprises, Inc. v. N.L.R B, 216 F.2d 798, 802 (C.A. 5, 1954); N.L.R.B v. Security Guard Service, Inc., 384 F.2d 143, 146-147 (C.A. 5, 1967); N L.R.B. v. City Yellow Cab Company, 344 F.2d 575, 581-582 (CA. 6, 1965). I conclude that McDougall, Churchill, and L. Hall (and Stroecker were not supervisors within Section 2(11) of the Act, and I accordingly reject this defense as untimely made and, in any event, as lacking in merit. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) and (3) of the Act by discharging or otherwise discriminating against Bil- ly Wayne Noe, Marion Michael Ames, Lester Hall, Terry Kurt McDougall, Michael A. Stroecker, Johnnie Hall, Les- ter Churchill (in December 1974 and in July 1975), and Jesse Burlison. 4. Respondent has also violated Section 8(a)(4) as to Churchill in July 1975. 5. Respondent has violated Section 8(a)(1) of the Act in the following respects: (a) coercively interrogating employ- ees concerning their own and other employees' activities and sympathies in behalf of the Union ; (b) engaging in surveillance or creating the impression of surveillance of union activities ; (c) instructing or soliciting employees to report on other employees' union sympathies and activi- ties; (d) harassing employees because of their union activi- ties; and (e) telling employees it has discharged other em- ployees for union considerations and that they could not work for Respondent if they joined the Union. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion including reinstating and making whole the afore- named eight employees, in order to effectuate the policies of the Act. All backpay computations shall be in accor- dance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In Churchill's case, he shall be made whole for the entire period beginning with his first discharge in Decem- ber 1974. The parties stipulated at the hearing on July 2, 1975, that Johnnie Hall had been recalled and was em- ployed on that date . If Hall has been fully reinstated as prescribed in the Order herein , Respondent will not be re- quired to repeat such offer of reinstatement. The unfair labor practices in this case were flagrant and pervasive in my opinion. Even though reinstated , it is rea- HAYNIE ELECTRIC CO. 361 sonable to believe that the employees discriminated against might be apprehensive of retribution from Respondent, particularly in a situation where seniority is not practiced and where the record shows, as Respondent asserted, a practice of interchanging employees on a borrowing basis between the Respondent Companies. I accordingly believe that the discnminatees are entitled to a further measure of security from a repetition of Respondent's conduct in re- gard to their organizational rights. I shall therefore require that for a period of a year from the start of compliance the Respondent advise, in writing, the Regional Office in Memphis and the Union of any adverse personnel actions taken as to the returned discriminatees, such as layoffs and discharges. In view of the gross interference with employees' organi- zational rights in this case, it will also be required that Respondent mail copies of the notice in this case to all of its employees, including those on layoff status, and that for a period of a year it provide the Union with reasonable access to Respondent's bulletin boards and wherever else notices to employees are customarily posted, for the post- ing of union notices and other organizational literature. Heck's, Inc., 191 NLRB 886, 887-888 (1971), and cases cited therein, enfd. sub nom. Food Store Employers Union, Local No. 347 Amalgamated Meat Cutters, 476 F.2d 546 (C.A.D.C., 1973), reversed and remanded 417 U.S. 1, 5, In. 4 (1974). Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Haynie Electric Co., Inc.; Baker Electric Company, Inc.; Summerall Electric Company, Inc.; A. C. Electric Compa- ny, Inc.; and its agent, James F. Summerall; and their re- spective officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, threatening to discharge, or otherwise discriminating against employees because of sympathies or activities on behalf of International Brotherhood of Elec- trical Workers, Local Union No. 474. (b) Discharging or otherwise discriminating against em- ployees for giving testimony in Labor Board proceedings. (c) Harassing employees for union reasons. (d) Coercively interrogating employees concerning their own or other employees' union activities and sympathies. (e) Creating the impression of, or engaging in, surveil- lance of employees' union activities, and directing or re- questing employees to report on such activities (f) Telling employees they have discharged other em- ployees for union considerations and that employees who join I.B.E.W., Local Union No. 474, could not work for Respondents. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer the following employees immediate reinstate- ment to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimi- nation against them: Billy Wayne Noe Michael A. Stroecker Marion Michael Ames Johnnie Hall Lester Hall Lester Churchill Terry Kirt McDougall Jesse Burlison (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due and the right of reinstatement under the terms of this recommended Order. (c) Advise Region 26 of the Board and IBEW, Local 474, for a period of 1 year from date of reinstatement of any adverse personnel action respecting any of the afore- named employees. (d) Grant to IBEW, Local No. 474, and its representa- tives upon said Union's request, reasonable access for a 1-year period to their bulletin boards and all places where notices to employees are customarily posted. (e) Post at their offices and wherever else notices to em- ployees are customarily posted, copies of the attached no- tice marked "Appendix," and mail a copy thereof to each of their employees.' Copies of said notice, on forms provid- ed by the Regional Director for Region 26, after being duly signed by Respondents, shall be posted by them immedi- ately upon receipt thereof, and be maintained for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondents to in- sure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 the 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 r 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 "